PARTICIPATION AGREEMENT
Dated as of June 9, 2000
among
THE VARIOUS PARTIES HERETO FROM TIME TO TIME,
as the Construction Agents and as the Lessees,
PERFORMANCE FOOD GROUP COMPANY,
as the Guarantor,
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, except as expressly
stated herein, but solely as the Owner Trustee
under the PFG Real Estate Trust 2000-1,
THE VARIOUS BANKS AND OTHER LENDING INSTITUTIONS WHICH
ARE PARTIES HERETO FROM TIME TO TIME, as the Holders,
THE VARIOUS BANKS AND OTHER LENDING INSTITUTIONS WHICH
ARE PARTIES HERETO FROM TIME TO TIME, as the Lenders,
and
FIRST UNION NATIONAL BANK,
as the Agent for the Lenders
and respecting the Security Documents,
as the Agent for the Lenders and the Holders,
to the extent of their interests
TABLE OF CONTENTS
Page
SECTION 1. THE LOANS. 1
SECTION 2. HOLDER ADVANCES. 2
SECTION 3. SUMMARY OF TRANSACTIONS. 2
3.1. Operative Agreements. 2
3.2. Property Purchase. 2
3.3. Construction of Improvements; Commencement of Basic
Rent. 3
SECTION 4. THE CLOSINGS. 3
4.1. Initial Closing Date. 3
4.2. Initial Closing Date; Property Closing Dates;
Acquisition Advances; Construction Advances. 3
SECTION 5. FUNDING OF ADVANCES; CONDITIONS PRECEDENT; REPORTING
REQUIREMENTS ON COMPLETION DATE; THE LESSEE'S DELIVERY
OF NOTICES; RESTRICTIONS ON LIENS. 4
5.1. General. 4
5.2. Procedures for Funding. 5
5.3. Conditions Precedent for the Lessor, the Agent, the
Lenders and the Holders Relating to the Initial Closing
Date and the Advance of Funds for the Acquisition of a
Property. 7
5.4. Conditions Precedent for the Lessor, the Agent, the
Lenders and the Holders Relating to the Advance of
Funds after the Acquisition Advance. 12
5.5. Additional Reporting and Delivery Requirements on
Completion Date and on Construction Period Termination
Date. 14
5.6. The Construction Agent Delivery of Construction Budget
Modifications. 15
5.7. Restrictions on Liens. 15
5.8. Payments. 15
5.9. Maintenance of each Lessee as a Wholly-Owned Entity. 16
5.10. Direct Obligations of Guarantor. 16
5.11 Additional Provisions Regarding Increase/Reduction of
Commitments and Holder Commitments. 16
SECTION 6. REPRESENTATIONS AND WARRANTIES. 17
6.1. Representations and Warranties of the Borrower. 17
6.2. Representations and Warranties of the Construction
Agent and the Lessee. 19
SECTION 6B. GUARANTY 25
6B.1. Guaranty of Payment and Performance. 25
6B.2. Obligations Unconditional. 25
6B.3. Modifications. 26
6B.4. Waiver of Rights. 27
6B.5. Reinstatement. 27
6B.6. Remedies. 28
6B.7. Limitation of Guaranty. 28
SECTION 7. PAYMENT OF CERTAIN EXPENSES. 29
7.1. Transaction Expenses. 29
7.2. Brokers' Fees. 30
7.3. Certain Fees and Expenses. 30
7.4. Facility Fee. 31
7.5. Administrative Fee. 31
SECTION 8. OTHER COVENANTS AND AGREEMENTS. 31
8.1. Cooperation with the Credit Parties. 31
8.2. Covenants of the Owner Trustee and the Holders. 31
8.3. Credit Party Covenants, Consent and Acknowledgment. 33
8.4. Sharing of Certain Payments. 37
8.5. Grant of Easements, etc. 37
8.6. Appointment by the Agent, the Lenders, the Holders and
the Owner Trustee. 37
8.7. Collection and Allocation of Payments and Other
Amounts. 38
8.8. Release of Properties, etc. 41
8.9 Appointment of the Guarantor as Agent for each Lessee. 42
SECTION 9. CREDIT AGREEMENT AND TRUST AGREEMENT. 42
9.1. Guarantor's Credit Agreement Rights. 42
9.2. The Guarantor's Trust Agreement Rights. 43
SECTION 10. TRANSFER OF INTEREST. 44
10.1. Restrictions on Transfer. 44
10.2. Effect of Transfer. 44
SECTION 11. INDEMNIFICATION. 45
11.1. General Indemnity. 45
11.2. General Tax Indemnity. 47
11.3. Increased Costs, Illegality, etc. 52
11.4. Funding/Contribution Indemnity. 54
11.5. EXPRESS INDEMNIFICATION FOR ORDINARY NEGLIGENCE, STRICT 54
LIABILITY, ETC.
11.6. Indemnity Prior to Completion Date / Construction Period
Termination Date. 55
SECTION 12. MISCELLANEOUS. 56
12.1. Survival of Agreements. 56
12.2. Notices. 56
12.3. Counterparts. 57
12.4. Terminations, Amendments, Waivers, Etc.; Unanimous
Vote Matters. 58
12.5. Headings, etc. 59
12.6. Parties in Interest. 59
12.7. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL; VENUE; ARBITRATION 60
12.8. Severability. 61
12.9. Liability Limited. 62
12.10.Rights of the Credit Parties. 63
12.11.Further Assurances. 63
12.12.Calculations under Operative Agreements. 64
12.13.Confidentiality. 64
▇▇.▇▇.▇▇▇▇▇▇▇▇▇ Reporting/Tax Characterization. 65
12.15.Set-off. 65
SCHEDULES
Schedule 5.3(n)(ii) - Form of Lessee Joinder
Schedule 5.11 - Description of Elizabeth, New Jersey Real Property
EXHIBITS
A - Form of Requisition - Sections 4.2, 5.2, 5.3 and 5.4
B - Form of Outside Counsel Opinion for the Lessee - Section 5.3(j)
C - Form of Officer's Certificate - Section 5.3(z)
D- Form of Secretary's Certificate - Section 5.3(aa)
E - Form of Officer's Certificate - Section 5.3(bb)
F - Form of Secretary's Certificate - Section 5.3(cc)
G - Form of Outside Counsel Opinion for the Owner Trustee -
Section 5.3(dd)
H - Form of Outside Counsel Opinion for the Lessee - Section 5.3(ee)
I - Form of Officer's Certificate - Section 5.5
J - Description of Material Litigation - Section 6.2(d)
Appendix A - Rules of Usage and Definitions
PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT dated as of June 9, 2000
(as amended, modified, extended, supplemented, restated
and/or replaced from time to time, this "Agreement") is by
and among the parties hereto from time to time as the lessees
and as the construction agents (subject to the definition of
Lessee and Construction Agent in Appendix A hereto,
individually a "Lessee" or a "Construction Agent" and
collectively the "Lessees" or the "Construction Agents");
PERFORMANCE FOOD GROUP COMPANY, a Tennessee corporation, as
the guarantor ("Guarantor"); FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, not individually
(in its individual capacity, the "Trust Company"), except as
expressly stated herein, but solely as the Owner Trustee
under the PFG Real Estate Trust 2000-1 (the "Owner Trustee",
the "Borrower" or the "Lessor"); the various banks and other
lending institutions which are parties hereto from time to
time as holders of certificates issued with respect to the
PFG Real Estate Trust 2000-1 (subject to the definition of
Holders in Appendix A hereto, individually, a "Holder" and
collectively, the "Holders"); the various banks and other
lending institutions which are parties hereto from time to
time as lenders (subject to the definition of Lenders in
Appendix A hereto, individually, a "Lender" and collectively,
the "Lenders"); and FIRST UNION NATIONAL BANK, a national
banking association, as the agent for the Lenders and
respecting the Security Documents, as the agent for the
Lenders and the Holders, to the extent of their interests (in
such capacity, the "Agent"). Capitalized terms used but not
otherwise defined in this Agreement shall have the meanings
set forth in Appendix A hereto.
In consideration of the mutual agreements herein
contained and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. THE LOANS.
Subject to the terms and conditions of this Agreement
and the other Operative Agreements and in reliance on the
representations and warranties of each of the parties hereto
contained herein or made pursuant hereto, the Lenders have
agreed to make Loans to the Lessor from time to time in an
aggregate principal amount of up to the aggregate amount of
the Commitments of the Lenders in order for the Lessor to
acquire the Properties and certain Improvements, to develop
and construct certain Improvements in accordance with the
Agency Agreement and the terms and provisions hereof and for
the other purposes described herein, and in consideration of
the receipt of proceeds of the Loans, the Lessor will issue
the Notes. The Loans shall be made and the Notes shall be
issued pursuant to the Credit Agreement. Pursuant to Section
5 of this Agreement and Section 2 of the Credit Agreement,
the Loans will be made to the Lessor from time to time at the
request of the respective Construction Agents in
consideration for the respective Construction Agents agreeing
for the benefit of the Lessor, pursuant to the Agency
Agreement, to acquire the Properties, to acquire the
Equipment, to construct certain Improvements and to cause the
respective Lessees to lease the Properties, each in
accordance with the Agency Agreement and the other Operative
Agreements. The Loans and the obligations of the Lessor
under the Credit Agreement shall be secured by the
Collateral.
SECTION 2. HOLDER ADVANCES.
Subject to the terms and conditions of this Agreement
and the other Operative Agreements and in reliance on the
representations and warranties of each of the parties hereto
contained herein or made pursuant hereto, on each date
Advances are requested to be made in accordance with Section
5 hereof, each Holder shall make a Holder Advance on a pro
rata basis to the Lessor with respect to the PFG Real Estate
Trust 2000-1 based on its Holder Commitment in an amount in
immediately available funds such that the aggregate of all
Holder Advances on such date shall be three percent (3%) of
the amount of the Requested Funds on such date, but in no
event shall the aggregate of all Holder Advances be less than
three percent (3%) of the amount of all outstanding Advances;
provided, that no Holder shall be obligated for any Holder
Advance in excess of its pro rata share of the Available
Holder Commitment. The aggregate amount of Holder Advances
shall be up to the aggregate amount of the Holder
Commitments. No prepayment or any other payment with respect
to Advances shall be permitted such that the aggregate Holder
Advances with respect to such outstanding Advances are less
than three percent (3%) of all outstanding Advances, except
in connection with termination or expiration of the Term or
in connection with the exercise of remedies relating to the
occurrence of a Lease Event of Default. The representations,
warranties, covenants and agreements of the Holders herein
and in the other Operative Agreements are several, and not
joint or joint and several.
SECTION 3. SUMMARY OF TRANSACTIONS.
3.1. Operative Agreements.
On the date hereof, each of the respective parties
hereto and thereto shall execute and deliver this Agreement,
the Lease, each applicable Ground Lease, the Agency
Agreement, the Credit Agreement, the Notes, the Trust
Agreement, the Certificates, the Security Agreement, each
applicable Mortgage Instrument and such other documents,
instruments, certificates and opinions of counsel as agreed
to by the parties hereto.
3.2. Property Purchase.
On each Property Closing Date and subject to the terms
and conditions of this Agreement (a) the Holders will each
make a Holder Advance in accordance with Sections 2 and 5 of
this Agreement and the terms and provisions of the Trust
Agreement, (b) the Lenders will each make Loans in accordance
with Sections 1 and 5 of this Agreement and the terms and
provisions of the Credit Agreement, (c) the Lessor will
purchase and acquire good and marketable title to or ground
lease pursuant to a Ground Lease, the applicable Property,
each to be within an Approved State, identified by the
Construction Agent which is a party to a Lease Supplement
respecting such Property, in each case pursuant to a Deed,
▇▇▇▇ of Sale or Ground Lease, as the case may be, and grant
the Agent a lien on such Property by execution of the
required Security Documents, (d) the Agent, the applicable
Lessee and the Lessor shall execute and deliver a Lease
Supplement (and unless such Lessee has previously delivered a
Lessee Joinder or is otherwise a party to the Operative
Agreement as a Lessee, such Lessee and the Lessor shall
deliver to the Agent a Lessee Joinder) relating to such
Property and (e) the Term shall commence with respect to such
Property.
3.3. Construction of Improvements; Commencement of Basic
Rent.
Construction Advances will be made with respect to
particular Improvements to be constructed and with respect to
ongoing Work regarding the Equipment and construction of
particular Improvements, in each case, pursuant to the terms
and conditions of this Agreement and the Agency Agreement.
The Construction Agent that is a party to a Lease Supplement
respecting a particular Property will act as a construction
agent on behalf of the Lessor respecting the Work regarding
the Equipment, the construction of such Improvements and the
expenditures of the Construction Advances related to the
foregoing. The Construction Agent that is a party to a Lease
Supplement respecting such Property shall promptly notify the
Lessor upon Completion of the Improvements and the Lessee
that is a party to a Lease Supplement respecting such
Property shall commence to pay Basic Rent as of the Rent
Commencement Date.
3.4. Lessee and Construction Agent Obligations Not Joint
and Several.
Each Lessee and Construction Agent shall be liable for
its obligations as Lessee or Construction Agent under the
Operative Agreements solely with respect to such obligations
arising in connection with the Properties for which such
Lessee or Construction Agent has executed Lease Supplements
and no Lessee or Construction Agent shall be jointly or
severally liable for the obligations of the other Lessees or
Construction Agents; provided, notwithstanding the foregoing,
the Security Documents shall cross-collateralize the
obligations of the Lessees and the Construction Agents.
SECTION 4. THE CLOSINGS.
4.1. Initial Closing Date.
All documents and instruments required to be delivered
on the Initial Closing Date shall be delivered at the offices
of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC, Charlotte, North Carolina, or at
such other location as may be determined by the Lessor, the
Agent and the Guarantor.
4.2. Initial Closing Date; Property Closing Dates;
Acquisition Advances; Construction Advances.
The Guarantor, on behalf of each applicable Credit
Party, shall deliver to the Agent a requisition (a
"Requisition"), in the form attached hereto as EXHIBIT A or
in such other form as is satisfactory to the Agent, in its
reasonable discretion, in connection with (a) the Transaction
Expenses and other fees, expenses and disbursements payable,
pursuant to Section 7.1, by the Lessor and (b) each
Acquisition Advance pursuant to Section 5.3 and (c) each
Construction Advance pursuant to Section 5.4.
SECTION 5. FUNDING OF ADVANCES; CONDITIONS
PRECEDENT; REPORTING REQUIREMENTS ON
COMPLETION DATE; THE LESSEE'S DELIVERY OF
NOTICES; RESTRICTIONS ON LIENS.
5.1. General.
(a) To the extent funds have been advanced to the
Lessor as Loans by the Lenders and to the Lessor as
Holder Advances by the Holders, the Lessor will use such
funds from time to time in accordance with the terms and
conditions of this Agreement and the other Operative
Agreements (i) with respect to any Property, at the
direction of the Construction Agent that is a party to a
Lease Supplement respecting such Property, to acquire
such Property in accordance with the terms of this
Agreement, the Agency Agreement and the other Operative
Agreements, (ii) with respect to any Property, to make
Advances to the Construction Agent that is a party to a
Lease Supplement respecting such Property to permit the
acquisition, testing, engineering, installation,
development, construction, modification, design, and
renovation, as applicable, of such Property (or
components thereof) in accordance with the terms of the
Agency Agreement and the other Operative Agreements, and
(iii) to pay Transaction Expenses, fees, expenses and
other disbursements payable by the Lessor under Sections
7.1(a) and 7.1(b).
(b) In lieu of the payment of interest on the
Loans and Holder Yield on the Holder Advances on any
Scheduled Interest Payment Date with respect to any
Property during the period prior to the Rent
Commencement Date with respect to such Property,
(i) each Lender's Loan shall automatically be increased
by the amount of interest accrued and unpaid on such
Loan for such period (except to the extent that at any
time such increase would cause such Lender's Loan to
exceed such Lender's Available Commitment, in which case
the Lessee shall pay such excess amount to such Lender
in immediately available funds on the date such Lender's
Available Commitment was exceeded), and (ii) each
Holder's Holder Advance shall automatically be increased
by the amount of Holder Yield accrued and unpaid on such
Holder Advance for such period (except to the extent
that at any time such increase would cause the Holder
Advance of such Holder to exceed such Holder's Available
Holder Commitment, in which case the Lessee shall pay
such excess amount to such Holder in immediately
available funds on the date the Available Holder
Commitment of such Holder was exceeded). Such increases
in a Lender's Loan and a Holder's Holder Advance shall
occur without any disbursement of funds by any Person.
5.2. Procedures for Funding.
(a) The Construction Agents shall designate the
date for Advances hereunder in accordance with the terms
and provisions hereof; provided, however, it is
understood and agreed that no more than two (2) Advances
(excluding any conversion and/or continuation of any
Loans or Holder Advances) may be requested during any
calendar month. Not less than (i) three (3) Business
Days prior to the Initial Closing Date and (ii) three
(3) Business Days prior to the date on which any
Acquisition Advance or Construction Advance is to be
made, the Guarantor (in the case of an Advance on the
Initial Closing Date) or thereafter, the Construction
Agent that is a party to a Lease Supplement respecting a
particular Property (in the case of an Acquisition
Advance or Construction Advance relating to such
Property) shall deliver to the Agent, (A) with respect
to the Initial Closing Date and each Acquisition
Advance, a Requisition as described in Section 4.2
hereof (including without limitation a legal description
of the Land, if any, a schedule of the Improvements, if
any, and a schedule of the Equipment, if any, acquired
or to be acquired on such date, and a schedule of the
Work, if any, to be performed, each of the foregoing in
a form reasonably acceptable to the Agent) and (B) with
respect to each Construction Advance, a Requisition
identifying (among other things) the Property to which
such Construction Advance relates.
(b) Each Requisition shall: (i) be irrevocable,
(ii) request funds in an amount that is not in excess of
the total aggregate of the Available Commitments plus
the Available Holder Commitments at such time, and (iii)
request that the Holders make Holder Advances and that
the Lenders make Loans to the Lessor for the payment of
Transaction Expenses, Property Acquisition Costs (in the
case of an Acquisition Advance) or other Property Costs
(in the case of a Construction Advance) that have
previously been incurred or are to be incurred on the
date of such Advance to the extent such were not subject
to a prior Requisition, in each case as specified in the
Requisition.
(c) Subject to the satisfaction of the conditions
precedent set forth in Sections 5.3 or 5.4, as
applicable, on each Property Closing Date or the date on
which the Construction Advance is to be made, as
applicable, (i) the Lenders shall make Loans based on
their respective Lender Commitments to the Lessor in an
aggregate amount equal to ninety-seven percent (97%) of
the Requested Funds specified in any Requisition
(ratably between the Tranche A Lenders and the Tranche B
Lenders with the Tranche A Lenders funding seventy-seven
percent (77%) of the Requested Funds and the Tranche B
Lenders funding twenty percent (20%) of the Requested
Funds), up to an aggregate principal amount equal to the
aggregate of the Available Commitments, (ii) each Holder
shall make a Holder Advance based on its Holder
Commitment in an amount such that the aggregate of all
Holder Advances at such time shall be three percent (3%)
of the balance of the Requested Funds specified in such
Requisition, up to the aggregate advanced amount equal
to the aggregate of the Available Holder Commitments;
and (iii) the total amount of such Loans and Holder
Advances made on such date shall (x) be used by the
Lessor to pay Property Costs including Transaction
Expenses within three (3) Business Days of the receipt
by the Lessor of such Advance or (y) be advanced by the
Lessor on the date of such Advance to the applicable
Construction Agent or the applicable Lessee to pay
Property Costs, as applicable. Notwithstanding that the
Operative Agreements state that Advances shall be
directed to the Lessor, each Advance shall in fact be
directed to the Construction Agent that has executed a
Lease Supplement respecting the applicable Property (for
the benefit of the Lessor) and applied by such
Construction Agent (for the benefit of the Lessor)
pursuant to the requirements imposed on the Lessor under
the Operative Agreements.
(d) With respect to an Advance obtained by the
Lessor to pay for Property Costs and/or Transaction
Expenses or other costs payable under Section 7.1 hereof
and not expended by the Lessor for such purpose on the
date of such Advance, such amounts shall be held by the
Agent until the applicable closing date or, if such
closing date does not occur within three (3) Business
Days of the date of the Agent's receipt of such Advance,
shall be applied regarding the applicable Advance to
repay the Lenders and the Holders and, subject to the
terms hereof, and of the Credit Agreement and the Trust
Agreement, shall remain available for future Advances.
Any such amounts held by the Agent shall be subject to
the lien of the Security Agreement and shall accrue
interest and Holder Yield from the date any such amount
is advanced to the Agent.
(e) All Operative Agreements which are to be
delivered to the Lessor, the Agent, the Lenders or the
Holders shall be delivered to the Agent, on behalf of
the Lessor, the Agent, the Lenders or the Holders, and
such items (except for Notes, Certificates, Bills of
Sale, the Ground Leases and chattel paper originals,
with respect to which in each case there shall be only
one original) shall be delivered with originals
sufficient for the Lessor, the Agent, each Lender and
each Holder. All other items which are to be delivered
to the Lessor, the Agent, the Lenders or the Holders
shall be delivered to the Agent, on behalf of the
Lessor, the Agent, the Lenders or the Holders, and such
other items shall be held by the Agent. To the extent
any such other items are requested in writing from time
to time by the Lessor, any Lender or any Holder, the
Agent shall provide a copy of such item to the party
requesting it.
(f) Notwithstanding the completion of any closing
under this Agreement pursuant to Sections 5.3 or 5.4,
each condition precedent in connection with any such
closing may be subsequently enforced by the Agent
(unless such has been expressly waived in writing by the
Agent).
5.3. Conditions Precedent for the Lessor, the
Agent, the Lenders and the Holders Relating to
the Initial Closing Date and the Advance of
Funds for the Acquisition of a Property.
The obligations (i) on the Initial Closing Date of the
Lessor, the Agent, the Lenders and the Holders to enter into
the transactions contemplated by this Agreement, including
without limitation the obligation to execute and deliver the
applicable Operative Agreements to which each is a party on
the Initial Closing Date, (ii) on the Initial Closing Date of
the Holders to make Holder Advances, and of the Lenders to
make Loans in order to pay Transaction Expenses, fees,
expenses and other disbursements payable by the Lessor under
Section 7.1(a) of this Agreement and (iii) on a Property
Closing Date for the purpose of providing funds to the Lessor
necessary to pay the Transaction Expenses, fees, expenses and
other disbursements payable by the Lessor under Section
7.1(b) of this Agreement and to acquire or ground lease a
Property (an "Acquisition Advance"), in each case (with
regard to the foregoing Sections 5.3(i), (ii) and (iii)) are
subject to the satisfaction or waiver of the following
conditions precedent on or prior to the Initial Closing Date
or the applicable Property Closing Date, as the case may be
(to the extent such conditions precedent require the delivery
of any agreement, certificate, instrument, memorandum, legal
or other opinion, appraisal, commitment, title insurance
commitment, lien report or any other document of any kind or
type, such shall be in form and substance satisfactory to the
Agent, in its reasonable discretion; notwithstanding the
foregoing, the obligations of each party shall not be subject
to any conditions contained in this Section 5.3 which are
required to be performed by such party):
(a) the correctness in all material respects of
the representations and warranties of the parties to
this Agreement contained herein, in each of the other
Operative Agreements and each certificate delivered
pursuant to any Operative Agreement (including without
limitation the Incorporated Representations and
Warranties) on each such date;
(b) the performance in all material respects by
the parties to this Agreement of their respective
agreements contained herein and in the other Operative
Agreements to be performed by them on or prior to each
such date;
(c) the Agent shall have received a fully executed
counterpart copy of the Requisition, appropriately
completed;
(d) title to each such Property shall conform to
the representations and warranties set forth in Section
6.2(l) hereof;
(e) the Construction Agent that is a party to a
Lease Supplement respecting such applicable Property
shall have delivered to the Agent a good standing
certificate for the Construction Agent in the state
where each such Property is located (but only if such
Construction Agent is required to qualify to do business
in such state under the laws of such state), the Deed
with respect to the Land and existing Improvements (if
any), a copy of the Ground Lease (if any), and a copy of
the ▇▇▇▇ of Sale with respect to the Equipment (if any),
respecting such of the foregoing as are being acquired
or ground leased on each such date with the proceeds of
the Loans and Holder Advances or which have been
previously acquired or ground leased with the proceeds
of the Loans and Holder Advances and such Land, existing
Improvements (if any) and Equipment (if any) shall be
located in an Approved State;
(f) there shall not have occurred and be
continuing any Default or Event of Default under any of
the Operative Agreements and no Default or Event of
Default under any of the Operative Agreements will have
occurred after giving effect to the Advance requested by
each such Requisition;
(g) the Construction Agent that is a party to a
Lease Supplement respecting such applicable Property
shall have delivered to the Agent title insurance
commitments to issue policies respecting each such
Property, with such endorsements as the Agent deems
necessary in its reasonable discretion, in favor of the
Lessor and the Agent from a title insurance company
acceptable to the Agent, but only with such title
exceptions thereto as are acceptable to the Agent in its
reasonable discretion;
(h) the Construction Agent that is a party to a
Lease Supplement respecting such applicable Property
shall have delivered to the Agent an environmental site
assessment respecting each such Property prepared by an
independent recognized professional acceptable to the
Agent and evidencing no pre-existing environmental
condition with respect to which there is more than a
remote risk of loss;
(i) the Construction Agent that is a party to a
Lease Supplement respecting such applicable Property
shall have delivered to the Agent a survey (with a flood
hazard certification) respecting each such Property
prepared by (i) an independent recognized professional
acceptable to the Agent and (ii) in a manner and
including such information as is reasonably required by
the Agent;
(j) unless such an opinion has previously been
delivered with respect to a particular state for a
particular Construction Agent, the Construction Agent
shall have caused to be delivered to the Agent a legal
opinion in substantially the form attached hereto as
EXHIBIT B or in such other form as is reasonably
acceptable to the Agent with respect to local law real
property issues respecting the state in which each such
Property is located addressed to the Lessor, the Agent,
the Lenders and the Holders, from counsel located in the
state where each such Property is located, prepared by
counsel reasonably acceptable to the Agent;
(k) the Agent shall be satisfied in its reasonable
discretion that the acquisition, ground leasing and/or
holding of each such Property and the execution of the
Mortgage Instrument and the other Security Documents
will not materially and adversely affect the rights of
the Lessor, the Agent, the Holders or the Lenders under
or with respect to the Operative Agreements;
(l) the applicable Construction Agent shall have
delivered to the Agent invoices for, or other reasonably
satisfactory evidence of, the various Transaction
Expenses and other fees, expenses and disbursements
referenced in Sections 7.1(a) or 7.1(b) of this
Agreement, as appropriate;
(m) the Construction Agent that is a party to a
Lease Supplement respecting any applicable Property
shall have caused to be delivered to the Agent a
Mortgage Instrument (in such form as is reasonably
acceptable to the Agent, with revisions as necessary to
conform to applicable state law), Lessor Financing
Statements and Lender Financing Statements respecting
each such Property, all fully executed and in recordable
form;
(n) the Lessee (or Eligible Lessee, as the case
may be) shall have delivered to the Agent with respect
to each such Property (i) a Lease Supplement and a
memorandum (or short form lease) regarding the Lease and
such Lease Supplement (such memorandum or short form
lease to be substantially in the form attached to the
Lease as EXHIBIT B or in such other form as is
reasonably acceptable to the Agent, with modifications
as necessary to conform to applicable state law, and in
form suitable for recording) and (ii) a Lessee Joinder
in the form attached hereto as Schedule 5.3(n)(ii);
provided, however, that no such Lessee Joinder shall be
required if the Lessee with respect to such Property has
previously delivered a Lessee Joinder in connection with
any other Property or if the Agent is reasonably
satisfied that such Person is otherwise a party to the
Operative Agreements as a Lessee and as a Construction
Agent by means of execution of the applicable Operative
Agreements as of the Initial Closing Date;
(o) with respect to each Acquisition Advance, the
sum of the Available Commitment plus the Available
Holder Commitment (after deducting the Unfunded Amount,
if any, and after giving effect to the Acquisition
Advance) will be sufficient to pay all amounts payable
therefrom in respect to all Properties then subject to
the Operative Agreements;
(p) if any such Property is subject to a Ground
Lease, the Construction Agent with respect to such
Property shall have caused a lease memorandum (or short
form lease) to be delivered to the Agent for such Ground
Lease and, if requested by the Agent, a landlord waiver
and a mortgagee waiver (in each case, in such form as is
acceptable to the Agent);
(q) counsel (reasonably acceptable to the Agent)
for the ground lessor of each such Property subject to a
Ground Lease shall have issued to the Lessor, the Agent,
the Lenders and the Holders, its opinion;
(r) the Construction Agent that is a party to a
Lease Supplement respecting any applicable Property
shall have delivered to the Agent a preliminary
Construction Budget for each such Property, if
applicable;
(s) the Construction Agent that is a party to a
Lease Supplement respecting any applicable Property
shall have provided evidence to the Agent of insurance
with respect to each such Property as provided in the
Lease;
(t) the Construction Agent that is a party to a
Lease Supplement respecting any applicable Property
shall have caused an as-built Appraisal regarding each
such Property to be provided to the Agent from an
appraiser reasonably satisfactory to the Agent;
(u) the Credit Parties shall cause (i) Uniform
Commercial Code lien searches, tax lien searches and
judgment lien searches regarding each Credit Party to be
conducted (and copies thereof to be delivered to the
Agent) in such jurisdictions as determined by the Agent
by a nationally recognized search company acceptable to
the Agent (unless such searches in such jurisdictions
with respect to the applicable Credit Party have
previously been provided to the Agent) and (ii) the
liens referenced in such lien searches which are
objectionable to the Agent to be either removed or
otherwise handled in a manner satisfactory to the Agent;
(v) all taxes, fees and other charges in
connection with the execution, delivery, recording,
filing and registration of the Operative Agreements
and/or documents related thereto shall have been paid or
provisions for such payment shall have been made to the
satisfaction of the Agent;
(w) in the reasonable opinion of the Agent and its
respective counsel, the transactions contemplated by the
Operative Agreements do not and will not subject the
Lessor, the Lenders, the Agent or the Holders to any
adverse regulatory prohibitions, constraints, penalties
or fines;
(x) each of the Operative Agreements to be entered
into on such date shall have been duly authorized,
executed and delivered by the parties thereto, and shall
be in full force and effect, and the Agent shall have
received a fully executed copy of each of the Operative
Agreements;
(y) since the date of the most recent audited
financial statements (as delivered pursuant to the
requirements of the Lessee Credit Agreement) of the
Guarantor, there shall not have occurred any event,
condition or state of facts which shall have or could
reasonably be expected to have a Material Adverse
Effect, other than as specifically contemplated by the
Operative Agreements;
(z) as of the Initial Closing Date only, the Agent
shall have received an Officer's Certificate, dated as
of the Initial Closing Date, of the Guarantor in the
form attached hereto as EXHIBIT C or in such other form
as is reasonably acceptable to the Agent stating that
(i) each and every representation and warranty of each
Credit Party contained in the Operative Agreements to
which it is a party is true and correct in every
material respect on and as of the Initial Closing Date;
(ii) no Default or Event of Default has occurred and is
continuing under any Operative Agreement; (iii) each
Operative Agreement to which any Credit Party is a party
is in full force and effect with respect to it; and (iv)
each Credit Party has duly performed and complied in all
material respects with all covenants, agreements and
conditions contained herein or in any Operative
Agreement required to be performed or complied with by
it on or prior to the Initial Closing Date;
(aa) as of the Initial Closing Date only, the Agent
shall have received (i) a certificate of the Secretary
or an Assistant Secretary of each Credit Party, dated as
of the Initial Closing Date (unless such Credit Party
was not a Credit Party on the Initial Closing Date, in
which case such certificate shall be dated as of the
date such Credit Party becomes a Credit Party by
execution of a Lessee Joinder), in the form attached
hereto as EXHIBIT D or in such other form as is
reasonably acceptable to the Agent attaching and
certifying as to (1) the resolutions of the Board of
Directors of such Credit Party duly authorizing the
execution, delivery and performance by such Credit Party
of each of the Operative Agreements to which it is or
will be a party, (2) the articles of incorporation of
such Credit Party certified as of a recent date by the
Secretary of State of its state of incorporation and its
by-laws and (3) the incumbency and signature of persons
authorized to execute and deliver on behalf of such
Credit Party the Operative Agreements to which it is or
will be a party and (ii) a good standing certificate (or
local equivalent) from the appropriate office of the
respective states where such Credit Party is
incorporated and where the principal place of business
of such Credit Party is located as to its good standing
in each such state. To the extent any Credit Party is a
partnership, a limited liability company or is otherwise
organized, such Person shall deliver to the Agent (in
form and substance satisfactory to the Agent) as of the
Initial Closing Date (unless such Credit Party was not a
Credit Party on the Initial Closing Date, in which case
such as of the date such Credit Party becomes a Credit
Party by execution of a Lessee Joinder) (A) a
certificate regarding such Person and any corporate
general partners covering the matters described in
EXHIBIT D and (B) a good standing certificate, a
certificate of limited partnership or a local equivalent
of either the foregoing as applicable;
(bb) as of the Initial Closing Date only, the Agent
shall have received an Officer's Certificate of the
Lessor dated as of the Initial Closing Date in the form
attached hereto as EXHIBIT E or in such other form as is
reasonably acceptable to the Agent, stating that (i)
each and every representation and warranty of the Lessor
contained in the Operative Agreements to which it is a
party is true and correct in every material respect on
and as of the Initial Closing Date, (ii) each Operative
Agreement to which the Lessor is a party is in full
force and effect with respect to it and (iii) the Lessor
has duly performed and complied with all covenants,
agreements and conditions contained herein or in any
Operative Agreement required to be performed or complied
in all material respects with by it on or prior to the
Initial Closing Date;
(cc) as of the Initial Closing Date only, the Agent
shall have received (i) a certificate of the Secretary,
an Assistant Secretary, Trust Officer or Vice President
of the Trust Company in the form attached hereto as
EXHIBIT F or in such other form as is reasonably
acceptable to the Agent, attaching and certifying as to
(A) the signing resolutions duly authorizing the
execution, delivery and performance by the Lessor of
each of the Operative Agreements to which it is or will
be a party, (B) its articles of association or other
equivalent charter documents and its by-laws, as the
case may be, certified as of a recent date by an
appropriate officer of the Trust Company and (C) the
incumbency and signature of persons authorized to
execute and deliver on its behalf the Operative
Agreements to which it is a party and (ii) a good
standing certificate from the Office of the Comptroller
of the Currency;
(dd) as of the Initial Closing Date only, counsel
for the Lessor acceptable to the Agent shall have issued
to the Lessee, the Holders, the Lenders and the Agent
its opinion in the form attached hereto as EXHIBIT G or
in such other form as is reasonably acceptable to the
Agent; and
(ee) as of the Initial Closing Date or, in the case
of a Lessee and Construction Agent that was not a Credit
Party as of the Initial Closing Date, as of the date
such Credit Party becomes a Credit Party by execution of
a Lessee Joinder, the Guarantor and/or the applicable
Construction Agent shall have caused to be delivered to
the Agent a legal opinion in substantially the form
attached hereto as EXHIBIT H or in such other form as is
reasonably acceptable to the Agent, addressed to the
Lessor, the Agent, the Lenders and the Holders, from
counsel reasonably acceptable to the Agent.
5.4. Conditions Precedent for the Lessor, the
Agent, the Lenders and the Holders Relating to the
Advance of Funds after the Acquisition Advance.
The obligations of the Holders to make Holder Advances,
and the Lenders to make Loans in connection with all requests
for Advances subsequent to the acquisition of a Property (and
to pay the Transaction Expenses, fees, expenses and other
disbursements payable by the Lessor under Section 7.1 of this
Agreement in connection therewith) are subject to the
satisfaction or waiver of the following conditions precedent
(to the extent such conditions precedent require the delivery
of any agreement, certificate, instrument, memorandum, legal
or other opinion, appraisal, commitment, title insurance
commitment, lien report or any other document of any kind or
type, such shall be in form and substance satisfactory to the
Agent, in its reasonable discretion; notwithstanding the
foregoing, the obligations of each party shall not be subject
to any conditions contained in this Section 5.4 which are
required to be performed by such party):
(a) the correctness in all material respects on
such date of the representations and warranties of the
parties to this Agreement contained herein, in each of
the other Operative Agreements and in each certificate
delivered pursuant to any Operative Agreement (including
without limitation the Incorporated Representations and
Warranties);
(b) the performance in all material respects by
the parties to this Agreement of their respective
agreements contained herein and in the other Operative
Agreements to be performed by them on or prior to each
such date;
(c) the Agent shall have received a fully executed
counterpart of the Requisition, appropriately completed;
(d) based upon the applicable Construction Budget
which shall satisfy the requirements of this Agreement,
the Available Commitments and the Available Holder
Commitment (after deducting the Unfunded Amount) will be
sufficient to complete the Improvements;
(e) there shall not have occurred and be
continuing any Default or Event of Default under any of
the Operative Agreements and no Default or Event of
Default under any of the Operative Agreements will have
occurred after giving effect to the Construction Advance
requested by the applicable Requisition;
(f) the title insurance policy delivered in
connection with the requirements of Section 5.3(g) shall
provide for (or shall be endorsed to provide for)
insurance in an amount at least equal to the maximum
total Property Cost indicated by the Construction Budget
referred to in subparagraph (d) above and there shall be
no title change or exception objectionable to the Agent
in the exercise of its reasonable discretion;
(g) the Construction Agent that has executed a
Lease Supplement respecting any applicable Property
shall have delivered to the Agent copies of the Plans
and Specifications for the applicable Improvements;
(h) the Construction Agent that has executed a
Lease Supplement respecting any applicable Property
shall have delivered to the Agent invoices for, or other
reasonably satisfactory evidence of, any Transaction
Expenses and other fees, expenses and disbursements
referenced in Section 7.1(b) that are to be paid with
the Advance;
(i) the Construction Agent that has executed a
Lease Supplement respecting any applicable Property
shall have delivered, or caused to be delivered to the
Agent, invoices, Bills of Sale or other documents
reasonably acceptable to the Agent, in each case with
regard to any Equipment or other components of such
Property then being acquired with the proceeds of the
Loans and Holder Advances and naming the Lessor as
purchaser and transferee;
(j) all taxes, fees and other charges in
connection with the execution, delivery, recording,
filing and registration of the Operative Agreements
shall have been paid or provisions for such payment
shall have been made to the satisfaction of the Agent;
(k) since the date of the most recent audited
financial statements of the Guarantor, there shall not
have occurred any event, condition or state of facts
which shall have or could reasonably be expected to have
a Material Adverse Effect, other than as specifically
contemplated by the Operative Agreements; and
(l) in the reasonable opinion of the Agent and its
counsel, the transactions contemplated by the Operative
Agreements do not and will not subject the Lessor, the
Lenders, the Agent or the Holders to any adverse
regulatory prohibitions, constraints, penalties or
fines.
5.5. Additional Reporting and Delivery Requirements
on Completion Date and on Construction Period
Termination Date.
On or prior to the Completion Date for each Property,
the Construction Agent that has executed a Lease Supplement
respecting such Property shall deliver to the Agent an
Officer's Certificate in the form attached hereto as EXHIBIT
I or in such other form as is reasonably acceptable to the
Agent specifying (a) the address for such Property, (b) the
Completion Date for such Property, (c) the aggregate Property
Cost for such Property, (d) detailed, itemized documentation
supporting the asserted Property Cost figures and (e) that
all representations and warranties of the Construction Agent
and Lessee in each of the Operative Agreements and each
certificate delivered pursuant thereto (including without
limitation the Incorporated Representations and Warranties)
are true and correct in all material respects as of the
Completion Date. The Agent shall have the right to contest
the information contained in such Officer's Certificate.
Furthermore, on or prior to the Completion Date for each
Property, the Construction Agent that has executed a Lease
Supplement respecting such Property shall deliver or cause to
be delivered to the Agent (unless previously delivered to the
Agent) originals of the following, each of which shall be in
form and substance acceptable to the Agent, in its reasonable
discretion: (v) a title insurance endorsement regarding the
title insurance policy delivered in connection with the
requirements of Section 5.3(g), but only to the extent such
endorsement is necessary to provide for insurance in an
amount at least equal to the maximum total Property Cost and,
if endorsed, the endorsement shall not include a title change
or exception objectionable to the Agent in its reasonable
discretion; (w) an as-built survey for such Property, (x)
insurance certificates respecting such Property as required
hereunder and under the Lease Agreement, (y) if requested by
the Agent, amendments to the Lessor Financing Statements
executed by the appropriate parties and (z) an Appraisal
regarding such Property; provided, however, such an Appraisal
shall not be required if, as of such Completion Date, the
Agent has previously received Appraisal(s) pursuant to
Section 5.3(t) for Properties that are then subject to the
Lease and that have an aggregate value (as established by
such Appraisal(s)) of at least $8,000,000. In addition, on
the Completion Date for such Property the Construction Agent
that has executed a Lease Supplement respecting such Property
covenants and agrees that the recording fees, documentary
stamp taxes or similar amounts required to be paid in
connection with the related Mortgage Instrument shall have
been paid in an amount required by applicable law, subject,
however, to the obligations of the Lenders and the Holders to
fund such costs to the extent required pursuant to Section
7.1.
5.6. The Construction Agent Delivery of
Construction Budget Modifications.
The Construction Agent that has executed a Lease
Supplement respecting such Property covenants and agrees to
deliver to the Agent each month notification of any
modification to any Construction Budget regarding any
Property if such modification increases the cost to construct
such Property; provided no Construction Budget may be
increased unless (a) the title insurance policies referenced
in Section 5.3(g) are also modified or endorsed, if
necessary, to provide for insurance in an amount that
satisfies the requirements of Section 5.4(f) of this
Agreement and (b) after giving effect to any such amendment,
the Construction Budget remains in compliance with the
requirements of Section 5.4(d) of this Agreement.
5.7. Restrictions on Liens.
On each Property Closing Date, the Construction Agent
that is party to a Lease Supplement respecting any applicable
Property shall cause each such Property acquired by the
Lessor on such date to be free and clear of all Liens except
those referenced in Sections 6.2(r)(i) and 6.2(r)(ii). On
each date any such Property is either sold to a third party
in accordance with the terms of the Operative Agreements or,
pursuant to Section 22.1(a) of the Lease Agreement, retained
by the Lessor, the Lessee shall cause such Property to be
free and clear of all Liens (other than Lessor Liens and such
other Liens that are expressly set forth as title exceptions
on the title commitment issued under Section 5.3(g) with
respect to such Property, to the extent such title commitment
has been approved by the Agent).
5.8. Payments.
All payments of principal, interest, Holder Advances,
Holder Yield and other amounts to be made by any Credit Party
under this Agreement or any other Operative Agreements
(excluding Excepted Payments which shall be paid directly to
the party to whom such payments are owed) shall be made to
the Agent at the office designated by the Agent from time to
time in Dollars and in immediately available funds, without
setoff, deduction, or counterclaim. Subject to the
definition of "Interest Period" in Appendix A attached
hereto, whenever any payment under this Agreement or any
other Operative Agreements shall be stated to be due on a day
that is not a Business Day, such payment may be made on the
next succeeding Business Day, and such extension of time in
such case shall be included in the computation of interest,
Holder Yield and fees payable pursuant to the Operative
Agreements, as applicable and as the case may be.
Notwithstanding any provision in this Agreement or any
other Operative Agreement to the contrary, payments which are
to be made (a) to, or for the benefit of, any Lessee may
instead be made to the Guarantor, and the Guarantor shall
promptly pay such amount to or for the benefit of the
applicable Lessee and (b) by any Lessee may instead be made
by the Guarantor (with such attribution and detail relating
to the applicable Lessee and any such amounts paid as the
Agent shall reasonably require).
5.9. Maintenance of each Lessee as a Wholly-Owned
Entity.
From the Initial Closing Date and thereafter until such
time as all obligations of all Credit Parties under the
Operative Agreements have been satisfied and performed in
full, the Guarantor shall retain each Lessee as a Wholly-
Owned Entity.
5.10. Direct Obligations of Guarantor.
In addition to the guaranty obligations set forth in
Section 6B, the Guarantor hereby agrees to perform any and
all direct obligations (including without limitation any
direct payment obligations) imposed on the Guarantor
hereunder or under any other Operative Agreement.
5.11. Additional Provisions Regarding
Increase/Reduction of Commitments and Holder
Commitments.
Notwithstanding any provision to the contrary herein or
in any other Operative Agreement, the parties agree that the
Commitments and the Holder Commitments, respectively, shall
be automatically reduced (on a pro rata basis) by the
aggregate amount of commitments by the lenders under the New
Jersey ELLF (hereinafter defined) to make loans and
commitments by the certificate or other equity holders under
the New Jersey ELLF (hereinafter defined) to make advances
pursuant to any written agreement that may hereafter be
entered into among the Guarantor or any of its Subsidiaries
and the Lenders and Holders with respect to an ELLF or other
financing by the Lenders and Holders in favor of, or for the
benefit of, the Guarantor or any of its Subsidiaries relating
to that certain parcel of real property located in Elizabeth,
New Jersey and more particularly described on Schedule 5.11
attached hereto (such ELLF or other financing may be referred
to herein as the "New Jersey ELLF"); provided, however,
during the Commitment Period, upon the completion of such
property or other termination or permanent reduction of the
commitments of the lenders to make loans under the New Jersey
ELLF and of the commitments of the certificate or other
equity holders to make advances under the New Jersey ELLF
(other than as a result of a default or event of default by
the Guarantor or any of its Subsidiaries thereunder), the
Commitments and the Holder Commitments hereunder,
respectively, shall be increased (on a pro rata basis) by an
amount equal to the remaining unused commitments of the
lenders to make loans under the New Jersey ELLF and the
remaining unused commitments of the certificate or other
equity holders to make advances under the New Jersey ELLF.
SECTION 6. REPRESENTATIONS AND WARRANTIES.
6.1. Representations and Warranties of the Borrower.
Effective as of the Initial Closing Date and the date of
each Advance, the Trust Company in its individual capacity
and as the Borrower, as indicated, represents and warrants to
each of the other parties hereto as follows, provided, that
the representations in the following paragraphs (h), (j) and
(k) are made solely in its capacity as the Borrower:
(a) It is a national banking association and is
duly organized and validly existing and in good standing
under the laws of the United States of America and has
the power and authority to enter into and perform its
obligations under the Trust Agreement and (assuming due
authorization, execution and delivery of the Trust
Agreement by the Holders) has the corporate and trust
power and authority to act as the Owner Trustee and to
enter into and perform the obligations under each of the
other Operative Agreements to which the Trust Company or
the Owner Trustee, as the case may be, is or will be a
party and each other agreement, instrument and document
to be executed and delivered by it on or before such
Closing Date in connection with or as contemplated by
each such Operative Agreement to which the Trust Company
or the Owner Trustee, as the case may be, is or will be
a party;
(b) The execution, delivery and performance of
each Operative Agreement to which it is or will be a
party, either in its individual capacity or (assuming
due authorization, execution and delivery of the Trust
Agreement by the Holders) as the Owner Trustee, as the
case may be, has been duly authorized by all necessary
action on its part and neither the execution and
delivery thereof, nor the consummation of the
transactions contemplated thereby, nor compliance by it
with any of the terms and provisions thereof (i) does or
will require any approval or consent of any trustee or
holders of any of its indebtedness or obligations, (ii)
does or will contravene any Legal Requirement relating
to its banking or trust powers, (iii) does or will
contravene or result in any breach of or constitute any
default under, or result in the creation of any Lien
upon any of its property under, (A) its charter or by-
laws, or (B) any indenture, mortgage, chattel mortgage,
deed of trust, conditional sales contract, bank loan or
credit agreement or other agreement or instrument to
which it is a party or by which it or its properties may
be bound or affected, which contravention, breach,
default or Lien under clause (B) would materially and
adversely affect its ability, in its individual capacity
or as the Owner Trustee, to perform its obligations
under the Operative Agreements to which it is a party or
(iv) does or will require any Governmental Action by any
Governmental Authority regulating its banking or trust
powers;
(c) The Trust Agreement and, assuming the Trust
Agreement is the legal, valid and binding obligation of
the Holders, each other Operative Agreement to which the
Trust Company or the Owner Trustee, as the case may be,
is or will be a party have been, or on or before such
Closing Date will be, duly executed and delivered by the
Trust Company or the Owner Trustee, as the case may be,
and the Trust Agreement and each such other Operative
Agreement to which the Trust Company or the Owner
Trustee, as the case may be, is a party constitutes, or
upon execution and delivery will constitute, a legal,
valid and binding obligation enforceable against the
Trust Company or the Owner Trustee, as the case may be,
in accordance with the terms thereof;
(d) There is no action or proceeding pending or,
to its knowledge, threatened to which it is or will be a
party, either in its individual capacity or as the Owner
Trustee, before any Governmental Authority that, if
adversely determined, would materially and adversely
affect its ability, in its individual capacity or as the
Owner Trustee, to perform its obligations under the
Operative Agreements to which it is a party or would
question the validity or enforceability of any of the
Operative Agreements to which it is or will become a
party;
(e) It, either in its individual capacity or as
the Owner Trustee, has not assigned or transferred any
of its right, title or interest in or under the Lease,
the Agency Agreement or its interest in any Property or
any portion thereof, except in accordance with the
Operative Agreements;
(f) No Default or Event of Default under the
Operative Agreements attributable to it has occurred and
is continuing;
(g) Except as otherwise contemplated in the
Operative Agreements, the proceeds of the Loans and
Holder Advances shall not be applied by the Owner
Trustee, either in its individual capacity or as the
Owner Trustee, for any purpose other than the purchase
and/or lease of the Properties, the acquisition,
installation and testing of the Equipment, the
construction of Improvements and the payment of
Transaction Expenses and the fees, expenses and other
disbursements referenced in Sections 7.1(a) and 7.1(b)
of this Agreement, in each case which accrue prior to
the Rent Commencement Date with respect to a particular
Property;
(h) Neither the Owner Trustee nor any Person
authorized by the Owner Trustee to act on its behalf has
offered or sold any interest in the Trust Estate or the
Notes, or in any similar security relating to a
Property, or in any security the offering of which for
the purposes of the Securities Act would be deemed to be
part of the same offering as the offering of the
aforementioned securities to, or solicited any offer to
acquire any of the same from, any Person other than, in
the case of the Notes, the Agent, and neither the Owner
Trustee nor any Person authorized by the Owner Trustee
to act on its behalf will take any action which would
subject, as a direct result of such action alone, the
issuance or sale of any interest in the Trust Estate or
the Notes to the provisions of Section 5 of the
Securities Act or require the qualification of any
Operative Agreement under the Trust Indenture Act of
1939, as amended;
(i) The Owner Trustee's principal place of
business, chief executive office and office where the
documents, accounts and records relating to the
transactions contemplated by this Agreement and each
other Operative Agreement are kept are located at ▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇;
(j) The Owner Trustee is not engaged principally
in, and does not have as one (1) of its important
activities, the business of extending credit for the
purpose of purchasing or carrying any margin stock
(within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System of the United
States), and no part of the proceeds of the Loans or the
Holder Advances will be used by it to purchase or carry
any margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock
or for any purpose that violates, or is inconsistent
with, the provisions of Regulations T, U, or X of the
Board of Governors of the Federal Reserve System of the
United States;
(k) The Owner Trustee is not an "investment
company" or a company controlled by an "investment
company" within the meaning of the Investment Company
Act;
(l) Each Property is free and clear of all Lessor
Liens attributable to the Owner Trustee, either in its
individual capacity or as the Owner Trustee; and
(m) The Owner Trustee, in its trust capacity, is
not a party to any documents, instruments or agreements
other than the Operative Agreements executed by the
Owner Trustee, in its trust capacity.
6.2. Representations and Warranties of the Construction
Agent and the Lessee.
Effective as of the Initial Closing Date, the date of
each Advance and the Rent Commencement Date, each Credit
Party represents and warrants to each of the other parties
hereto that:
(a) The Incorporated Representations and
Warranties are true and correct (unless such relate
solely to an earlier point in time) and the Guarantor
has delivered to the Agent the financial statements and
other reports referred to in Section 7.1 of the Lessee
Credit Agreement;
(b) (i) Each Credit Party is a corporation duly
organized and validly existing and in good standing
under the laws of the state of its incorporation and
each Credit Party has the power and authority to enter
into and perform its obligations under the Operative
Agreements to which it is a party and has the corporate
power and authority to act as the Guarantor, the
Construction Agent or the Lessee, as the case may be,
and to enter into and perform the obligations under each
of the other Operative Agreements to which it is a party
or will be a party and each other agreement, instrument
and document to be executed and delivered by it on or
before such date in connection with or as contemplated
by each such Operative Agreement to which it is a party
or will be a party;
(ii) The execution and delivery by each Credit
Party of this Agreement and the other applicable
Operative Agreements as of such date and the
performance by each of each Credit Party of its
respective obligations under this Agreement and the
other applicable Operative Agreements are within
the corporate, partnership or limited liability
company (as the case may be) powers of each of the
Guarantor, such Construction Agent and such Lessee
(as the case may be), have been duly authorized by
all necessary corporate, partnership or limited
liability company (as the case may be) action on
the part of each of the Guarantor, such
Construction Agent and such Lessee (as the case may
be) (including without limitation any necessary
shareholder action), have been duly executed and
delivered, have received all necessary governmental
approval, and do not and will not (A) violate any
Legal Requirement which is binding on the
Guarantor, such Construction Agent, such Lessee or
any of their Subsidiaries (as the case may be),
(B) contravene or conflict with, or result in a
breach of, any provision of the Articles of
Incorporation, By-Laws or other organizational
documents of any of the Guarantor, such
Construction Agent, such Lessee or any of their
Subsidiaries (as the case may be) or of any
material agreement, indenture, instrument or other
document which is binding on any of the Guarantor,
such Construction Agent, such Lessee or any of
their Subsidiaries (as the case may be) or (C)
result in, or require, the creation or imposition
of any Lien (other than pursuant to the terms of
the Operative Agreements) on any asset of any of
the Guarantor, such Construction Agent, such Lessee
or any of their Subsidiaries (as the case may be);
(c) This Agreement and the other applicable
Operative Agreements to which any of the Credit Parties
are parties, executed prior to and as of such date,
constitute the legal, valid and binding obligation of
such Credit Party, as applicable, enforceable against
such Credit Party, as applicable, in accordance with
their terms. Each Credit Party has executed the various
Operative Agreements required to be executed by such
Credit Party as of such date;
(d) There are no material actions, suits or
proceedings pending or, to our knowledge, threatened
against any Credit Party in any court or before any
Governmental Authority (nor has any order, judgment or
decree been issued or proposed to be issued by any
Governmental Authority to set aside, restrain, enjoin or
prevent the full performance of any Operative Agreement
or any transaction contemplated thereby) that (i)
concern any Property or any Lessee's interest therein,
(ii) question the validity or enforceability of any
Operative Agreement or any transaction described in the
Operative Agreements or (iii) shall have or could
reasonably be expected to have a Material Adverse
Effect; provided, for purposes of disclosure, the Credit
Parties have described the litigation set forth on
EXHIBIT J;
(e) No Governmental Action by any Governmental
Authority or other authorization, registration, consent,
approval, waiver, notice or other action by, to or of
any other Person pursuant to any Legal Requirement,
contract, indenture, instrument or agreement or for any
other reason is required to authorize or is required in
connection with (i) the execution, delivery or
performance of any Operative Agreement, (ii) the
legality, validity, binding effect or enforceability of
any Operative Agreement, (iii) the acquisition,
ownership, construction, completion, occupancy,
operation, leasing or subleasing of any Property or (iv)
any Advance, in each case, except those which have been
obtained and are in full force and effect;
(f) Upon the execution and delivery of each Lease
Supplement to the Lease, (i) the Lessee party thereto
will have unconditionally accepted the Property subject
to the Lease Supplement and will have a valid and
subsisting leasehold interest in such Property, subject
only to the Permitted Liens, and (ii) no offset will
exist with respect to any Rent or other sums payable
under the Lease;
(g) Except as otherwise contemplated by the
Operative Agreements, no Construction Agent shall use
the proceeds of any Holder Advance or Loan for any
purpose other than the purchase and/or lease of the
Properties with respect to which it has executed a Lease
Supplement, the acquisition, installation and testing of
the Equipment, the construction of Improvements and the
payment of Transaction Expenses and the fees, expenses
and other disbursements referenced in Sections 7.1(a)
and 7.1(b) of this Agreement, in each case which accrue
prior to the Rent Commencement Date with respect to such
Properties;
(h) All information heretofore or
contemporaneously herewith furnished by any Credit Party
or any of their Subsidiaries to the Agent, the Owner
Trustee, any Lender or any Holder for purposes of or in
connection with this Agreement and the transactions
contemplated hereby is, and all information hereafter
furnished by or on behalf of any Credit Party or any of
their Subsidiaries to the Agent, the Owner Trustee, any
Lender or any Holder pursuant hereto or in connection
herewith will be, true and accurate in every material
respect on the date as of which such information is
dated or certified, and such information, taken as a
whole, does not and will not omit to state any material
fact necessary to make such information, taken as a
whole, not misleading;
(i) The office where the documents, accounts and
records relating to the transactions contemplated by
this Agreement and each other Operative Agreement are
kept, the states of formation, principal place of
business and the chief executive offices of each Credit
Party are located at the places set forth in EXHIBIT K;
(j) The representations and warranties of each
Credit Party set forth in any of the Operative
Agreements are true and correct in all material respects
on and as of each such date as if made on and as of such
date. Each Credit Party is in all material respects in
compliance with their respective obligations under the
Operative Agreements and there exists no Default or
Event of Default under any of the Operative Agreements
which is continuing and which has not been cured within
any cure period expressly granted under the terms of the
applicable Operative Agreement or otherwise waived in
accordance with the applicable Operative Agreement. No
Default or Event of Default will occur under any of the
Operative Agreements as a result of, or after giving
effect to, the Advance requested by the Requisition on
the date of each Advance;
(k) As of each Property Closing Date, the date of
each subsequent Advance and the Rent Commencement Date
only, each Property then being financed consists of (i)
unimproved Land or (ii) Land and existing Improvements
thereon which Improvements are either suitable for
occupancy at the time of acquisition or ground leasing
or will be renovated and/or modified in accordance with
the terms of this Agreement. Each Property then being
financed is located at the location set forth on the
applicable Requisition, each of which is in one (1) of
the Approved States;
(l) As of each Property Closing Date, the date of
each subsequent Advance and the Rent Commencement Date
only, the Lessor has good and marketable fee simple
title to each Property, or, if any Property is the
subject of a Ground Lease, the Lessor will have a valid
ground leasehold interest enforceable against the ground
lessor of such Property in accordance with the terms of
such Ground Lease, subject only to (i) such Liens
referenced in Sections 6.2(r)(i) and 6.2(r)(ii) on the
applicable Property Closing Date and (ii) subject to
Section 5.7, Permitted Liens after the applicable
Property Closing Date;
(m) As of each Property Closing Date, the date of
each subsequent Advance and the Rent Commencement Date
only, no portion of any Property is located in an area
identified as a special flood hazard area by the Federal
Emergency Management Agency or other applicable agency,
or if any such Property is located in an area identified
as a special flood hazard area by the Federal Emergency
Management Agency or other applicable agency, then flood
insurance has been obtained for such Property in
accordance with Section 14.2(b) of the Lease and in
accordance with the National Flood Insurance Act of
1968, as amended;
(n) As of each Property Closing Date, the date of
each subsequent Advance and the Rent Commencement Date
only, each Property complies with all Insurance
Requirements and all standards of the Guarantor with
respect to similar properties owned by the Guarantor;
(o) As of each Property Closing Date, the date of
each subsequent Advance and the Rent Commencement Date
only, each Property complies with all Legal Requirements
as of such date (including without limitation all zoning
and land use laws and Environmental Laws), except to the
extent that failure to comply therewith, individually or
in the aggregate, shall not have and could not
reasonably be expected to have a Material Adverse
Effect;
(p) As of each Property Closing Date, the date of
each subsequent Advance and the Rent Commencement Date
only, all utility services and facilities necessary for
the construction and operation of the Improvements and
the installation and operation of the Equipment
regarding each Property (including without limitation
gas, electrical, water and sewage services and
facilities) are available at the applicable Land and
will be constructed prior to the Completion Date for
such Property;
(q) As of each Property Closing Date, the date of
each subsequent Advance and the Rent Commencement Date
only, acquisition, installation and testing of the
Equipment (if any) and construction of the Improvements
(if any) to such date shall have been performed in a
good and workmanlike manner, substantially in accordance
with the applicable Plans and Specifications;
(r) (i) The Security Documents create, as
security for the Obligations (as such term is
defined in the Security Agreement), valid and
enforceable security interests in, and Liens on,
all of the Collateral, in favor of the Agent, for
the ratable benefit of the Lenders and the Holders,
as their respective interests appear in the
Operative Agreements, and such security interests
and Liens are subject to no other Liens other than
Liens that are expressly set forth as title
exceptions on the title commitment issued under
Section 5.3(g) with respect to the applicable
Property, to the extent such title commitment has
been approved by the Agent. Upon recordation of
the Mortgage Instrument in the real estate
recording office in the applicable Approved State
identified by the applicable Construction Agent or
the applicable Lessee with respect to a particular
Property, the Lien created by the Mortgage
Instrument in the real property described therein
shall be a perfected first priority mortgage Lien
on such real property (or, in the case of a Ground
Lease, the leasehold estate under such Ground
Lease) in favor of the Agent, for the ratable
benefit of the Lenders and the Holders, as their
respective interests appear in the Operative
Agreements. To the extent that the security
interests in the portion of the Collateral
comprised of personal property can be perfected by
filing in the filing offices in the applicable
Approved States or elsewhere identified by
applicable Construction Agent or the applicable
Lessee with respect to a particular Property, upon
filing of the Lender Financing Statements in such
filing offices, the security interests created by
the Security Agreement shall be perfected first
priority security interests in such personal
property in favor of the Agent, for the ratable
benefit of the Lenders and the Holders, as their
respective interests appear in the Operative
Agreements;
(ii) The Lease Agreement creates, as security
for the obligations of the Lessee under the Lease
Agreement, valid and enforceable security interests
in, and Liens on, each Property leased thereunder,
in favor of the Lessor, and such security interests
and Liens are subject to no other Liens other than
Liens that are expressly set forth as title
exceptions on the title commitment issued under
Section 5.3(g) with respect to the applicable
Property, to the extent such title commitment has
been approved by the Agent. Upon recordation of
the memorandum of the Lease Agreement and the
memorandum of a Ground Lease (or, in either case, a
short form lease) in the real estate recording
office in the applicable Approved State identified
by applicable Construction Agent or the applicable
Lessee with respect to a particular Property, the
Lien created by the Lease Agreement in the real
property described therein shall be a perfected
first priority mortgage Lien on such real property
(or, in the case of a Ground Lease, on the
leasehold estate under such Ground Lease) in favor
of the Agent, for the ratable benefit of the
Lenders and the Holders, as their respective
interests appear in the Operative Agreements. To
the extent that the security interests in the
portion of any Property comprised of personal
property can be perfected by the filing in the
filing offices in the applicable Approved State or
elsewhere identified by applicable Construction
Agent or the applicable Lessee with respect to a
particular Property upon filing of the Lessor
Financing Statements in such filing offices, a
security interest created by the Lease Agreement
shall be perfected first priority security
interests in such personal property in favor of the
Lessor, which rights pursuant to the Lessor
Financing Statements are assigned to the Agent, for
the ratable benefit of the Lenders and the Holders,
as their respective interests appear in the
Operative Agreements;
(s) The Plans and Specifications for each Property
will be prepared prior to the commencement of
construction in accordance with all applicable Legal
Requirements (including without limitation all
applicable Environmental Laws and building, planning,
zoning and fire codes), except to the extent the failure
to comply therewith, individually or in the aggregate,
shall not have and could not reasonably be expected to
have a Material Adverse Effect. Upon completion of the
Improvements for each Property in accordance with the
applicable Plans and Specifications, such Improvements
will be within any building restriction lines and will
not encroach in any manner onto any adjoining land
(except as permitted by express written easements, which
have been approved by the Agent);
(t) As of the Rent Commencement Date only, each
Property shall be improved substantially in accordance
with the applicable Plans and Specifications in a good
and workmanlike manner and shall be operational;
(u) As of each Property Closing Date only, each
Property has been acquired or ground leased pursuant to
a Ground Lease at a price that is not in excess of fair
market value or fair market rental value, as the case
may be; and
(v) The consolidated balance sheet and income
statement of the Guarantor and its Consolidated
Subsidiaries as of December 31, 1999, together with
related consolidated statements of operations and
retained earnings and of cash flows as of
December 31, 1999, fairly present in all material
respects the consolidated financial condition of the
Guarantor and its Consolidated Subsidiaries as of such
date and the consolidated results of the operations of
the Guarantor and its Consolidated Subsidiaries for the
periods ended on such date, all in accordance with GAAP.
SECTION 6B. GUARANTY
6B.1. Guaranty of Payment and Performance.
Subject to Section 6B.7, the Guarantor hereby
unconditionally guarantees to each Financing Party the prompt
payment and performance of the Company Obligations in full
when due (whether at stated maturity, as a mandatory
prepayment, by acceleration or otherwise) or when such is
otherwise to be performed; provided, notwithstanding the
foregoing, the obligations of the Guarantor under this
Section 6B shall not constitute a direct guaranty of the
indebtedness of the Lessor evidenced by the Notes but rather
a guaranty of the Company Obligations arising under the
Operative Agreements. This Section 6B is a guaranty of
payment and performance and not of collection and is a
continuing guaranty and shall apply to all Company
Obligations whenever arising. All rights granted to the
Financing Parties under this Section 6B shall be subject to
the provisions of Section 8.2(h) and 8.6.
6B.2. Obligations Unconditional.
The Guarantor agrees that the obligations of the
Guarantor hereunder are absolute and unconditional,
irrespective of the value, genuineness, validity, regularity
or enforceability of any of the Operative Agreements, or any
other agreement or instrument referred to therein, or any
substitution, release or exchange of any other guarantee of
or security for any of the Company Obligations, and, to the
fullest extent permitted by applicable law, irrespective of
any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a
surety, guarantor or co-obligor, it being the intent of this
Section 6B.2 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all
circumstances. The Guarantor agrees that this Section 6B may
be enforced by the Financing Parties without the necessity at
any time of resorting to or exhausting any other security or
collateral and without the necessity at any time of having
recourse to the Notes, the Certificates or any other of the
Operative Agreements or any collateral, if any, hereafter
securing the Company Obligations or otherwise and the
Guarantor hereby waives the right to require the Financing
Parties to proceed against any Construction Agent, any Lessee
or any other Person (including without limitation a co-
guarantor) or to require the Financing Parties to pursue any
other remedy or enforce any other right. The Guarantor
further agrees that it hereby waives any and all right of
subrogation, indemnity, reimbursement or contribution against
the applicable Lessee and the applicable Construction Agent
or any other guarantor of the Company Obligations for amounts
paid under this Section 6B until such time as the Loans,
Holder Advances, accrued but unpaid interest, accrued but
unpaid Holder Yield and all other amounts owing under the
Operative Agreements have been paid in full. Without
limiting the generality of the waiver provisions of this
Section 6B, the Guarantor hereby waives any rights to require
the Financing Parties to proceed against any Construction
Agent, any Lessee or any co-guarantor or to require Lessor to
pursue any other remedy or enforce any other right, including
without limitation, any and all rights under N.C. Gen. Stat.
26-7 through 26-9. The Guarantor further agrees that
nothing contained herein shall prevent the Financing Parties
from suing on any Operative Agreement or foreclosing any
security interest in or Lien on any collateral, if any,
securing the Company Obligations or from exercising any other
rights available to it under any Operative Agreement, or any
other instrument of security, if any, and the exercise of any
of the aforesaid rights and the completion of any foreclosure
proceedings shall not constitute a discharge of the
Guarantor's obligations hereunder; it being the purpose and
intent of the Guarantor that its obligations hereunder shall
be absolute, independent and unconditional under any and all
circumstances; provided that any amounts due under this
Section 6B which are paid to or for the benefit of any
Financing Party shall reduce the Company Obligations by a
corresponding amount (unless required to be rescinded at a
later date). Neither the Guarantor's obligations under this
Section 6B nor any remedy for the enforcement thereof shall
be impaired, modified, changed or released in any manner
whatsoever by an impairment, modification, change, release or
limitation of the liability of any Construction Agent or any
Lessee or by reason of the bankruptcy or insolvency of any
Construction Agent or any Lessee. The Guarantor waives any
and all notice of the creation, renewal, extension or accrual
of any of the Company Obligations and notice of or proof of
reliance by any Financing Party upon this Section 6B or
acceptance of this Section 6B. The Company Obligations shall
conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in
reliance upon this Section 6B. All dealings between any
Construction Agent, any Lessee and the Guarantor, on the one
hand, and the Financing Parties, on the other hand, likewise
shall be conclusively presumed to have been had or
consummated in reliance upon this Section 6B.
6B.3. Modifications.
The Guarantor agrees that (a) all or any part of the
security now or hereafter held for the Company Obligations,
if any, may be exchanged, compromised or surrendered from
time to time; (b) no Financing Party shall have any
obligation to protect, perfect, secure or insure any such
security interests, liens or encumbrances now or hereafter
held, if any, for the Company Obligations or the properties
subject thereto; (c) the time or place of payment of the
Company Obligations may be changed or extended, in whole or
in part, to a time certain or otherwise, and may be renewed
or accelerated, in whole or in part; (d) any Construction
Agent, any Lessee and any other party liable for payment
under the Operative Agreements may be granted indulgences
generally; (e) subject to clause (ii) of the last sentence of
Section 6B.4, any of the provisions of the Notes, the
Certificates or any of the other Operative Agreements may be
modified, amended or waived; (f) any party (including any co-
guarantor) liable for the payment thereof may be granted
indulgences or be released; and (g) any deposit balance for
the credit of any Construction Agent, any Lessee or any other
party liable for the payment of the Company Obligations or
liable upon any security therefor may be released, in whole
or in part, at, before or after the stated, extended or
accelerated maturity of the Company Obligations, all without
notice to or further assent by the Guarantor, which shall
remain bound thereon, notwithstanding any such exchange,
compromise, surrender, extension, renewal, acceleration,
modification, indulgence or release.
6B.4. Waiver of Rights.
The Guarantor expressly waives to the fullest extent
permitted by applicable law: (a) notice of acceptance of
this Section 6B by any Financing Party and of all extensions
of credit or other Advances to any Construction Agent and any
Lessee by the Lenders pursuant to the terms of the Operative
Agreements; (b) presentment and demand for payment or
performance of any of the Company Obligations; (c) protest
and notice of dishonor or of default with respect to the
Company Obligations or with respect to any security therefor;
(d) notice of any Financing Party obtaining, amending,
substituting for, releasing, waiving or modifying any
security interest, lien or encumbrance, if any, hereafter
securing the Company Obligations, or any Financing Party's
subordinating, compromising, discharging or releasing such
security interests, liens or encumbrances, if any; and (e)
all other notices to which the Guarantor might otherwise be
entitled. Notwithstanding anything to the contrary herein,
(i) the Guarantor's payments hereunder shall be due five (5)
Business Days after written demand by the Agent for such
payment (unless the Company Obligations are automatically
accelerated pursuant to the applicable provisions of the
Operative Agreements in which case the Guarantor's payments
shall be automatically due) and (ii) any modification of the
Operative Agreements which has the effect of increasing the
Company Obligations shall not be enforceable against the
Guarantor unless the Guarantor executes the document
evidencing such modification or otherwise reaffirms its
guaranty in writing in connection with such modification.
6B.5. Reinstatement.
The obligations of the Guarantor under this Section 6B
shall be automatically reinstated if and to the extent that
for any reason any payment by or on behalf of any Person in
respect of the Company Obligations is rescinded or must be
otherwise restored by any holder of any of the Company
Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and the Guarantor
agrees that it will indemnify each Financing Party on demand
for all reasonable costs and expenses (including, without
limitation, reasonable fees of counsel) incurred by any
Financing Party in connection with such rescission or
restoration, including without limitation any such costs and
expenses incurred in defending against any claim alleging
that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency
or similar law.
6B.6. Remedies.
The Guarantor agrees that, as between the Guarantor, on
the one hand, and each Financing Party, on the other hand,
the Company Obligations may be declared to be forthwith due
and payable as provided in the applicable provisions of the
Operative Agreements (and shall be deemed to have become
automatically due and payable in the circumstances provided
therein) notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing such
Company Obligations from becoming automatically due and
payable) as against any other Person and that, in the event
of such declaration (or such Company Obligations being deemed
to have become automatically due and payable), such Company
Obligations (whether or not due and payable by any other
Person) shall forthwith become due and payable by the
Guarantor in accordance with the applicable provisions of the
Operative Agreements.
6B.7. Limitation of Guaranty.
Notwithstanding any provision to the contrary contained
herein or in any of the other Operative Agreements, to the
extent the obligations of the Guarantor shall be adjudicated
to be invalid or unenforceable for any reason (including
without limitation because of any applicable state or federal
law relating to fraudulent conveyances or transfers) then the
obligations of the Guarantor hereunder shall be limited to
the maximum amount that is permissible under applicable law
(whether federal or state and including without limitation
the Bankruptcy Code).
Subject to Section 6B.5, upon the satisfaction of the
Company Obligations in full, regardless of the source of
payment, the Guarantor's obligations hereunder shall be
deemed satisfied, discharged and terminated other than
indemnifications set forth herein that expressly survive.
6B.8. Payment of Amounts to the Agent.
Each Financing Party hereby instructs the Guarantor, and
the Guarantor hereby acknowledges and agrees, that until such
time as the Loans and the Holder Advances are paid in full
and the Liens evidenced by the Security Agreement and the
Mortgage Instruments have been released any and all Rent
(excluding Excepted Payments which shall be payable to each
Holder or other Person as appropriate) and any and all other
amounts of any kind or type under any of the Operative
Agreements due and owing or payable to any Person shall
instead be paid directly to the Agent (excluding Excepted
Payments which shall be payable to each Holder or other
Person as appropriate) or as the Agent may direct from time
to time for allocation and distribution in accordance with
the procedures set forth in Section 8.7 hereof.
SECTION 7. PAYMENT OF CERTAIN EXPENSES.
7.1. Transaction Expenses.
(a) The Lessor agrees on the Initial Closing Date,
to pay, or cause to be paid, all Transaction Expenses
arising from the Initial Closing Date, including without
limitation all reasonable fees, expenses and
disbursements of the various legal counsels for the
Lessor and the Agent in connection with the transactions
contemplated by the Operative Agreements and incurred in
connection with such Initial Closing Date, the initial
fees and expenses of the Owner Trustee due and payable
on such Initial Closing Date (as described in a separate
letter agreement dated as of April 5, 2000, by and
between the Trust Company and Guarantor), all fees,
taxes and expenses for the recording, registration and
filing of documents and all other reasonable fees,
expenses and disbursements incurred in connection with
such Initial Closing Date; provided, however, the Lessor
shall pay such amounts described in this Section 7.1(a)
only if (i) such amounts are properly described in a
Requisition delivered on or before the Initial Closing
Date, and (ii) funds are made available by the Lenders
and the Holders in connection with such Requisition in
an amount sufficient to allow such payment. On the
Initial Closing Date after delivery and receipt of the
Requisition referenced in Section 4.2(a) hereof and
satisfaction of the other conditions precedent for such
date, the Holders shall make Holder Advances and the
Lenders shall make Loans to the Lessor to pay for the
Transaction Expenses, fees, expenses and other
disbursements referenced in this Section 7.1(a). The
Credit Parties agree to timely pay all amounts referred
to in this Section 7.1(a) to the extent not paid by the
Lessor.
(b) Assuming no Default or Event of Default shall
have occurred and be continuing and only for the period
prior to the Rent Commencement Date, the Lessor agrees
on each Property Closing Date, on the date of any
Construction Advance and on the Completion Date to pay,
or cause to be paid, all Transaction Expenses including
without limitation all reasonable fees, expenses and
disbursements of the various legal counsels for the
Lessor and the Agent in connection with the transactions
contemplated by the Operative Agreements and billed in
connection with such Advance or such Completion Date,
all amounts described in Section 7.1(a) of this
Agreement which have not been previously paid, the
annual fees and reasonable out-of-pocket expenses of the
Owner Trustee (as described in a separate letter
agreement dated as of April 5, 2000, by and between the
Trust Company and Guarantor), all fees, expenses and
disbursements incurred with respect to the various items
referenced in Sections 5.3, 5.4 and/or 5.5 (including
without limitation any premiums for title insurance
policies and charges for any updates to such policies)
and all other reasonable fees, expenses and
disbursements in connection with such Advance or such
Completion Date including without limitation all
expenses relating to and all fees, taxes and expenses
for the recording, registration and filing of documents
and during the Commitment Period, all fees, expenses and
costs referenced in Sections 7.3(a), 7.3(b), 7.3(d) and
7.4; provided, however, the Lessor shall pay such
amounts described in this Section 7.1(b) only if (i)
such amounts are properly described in a Requisition
delivered on the applicable date and (ii) funds are made
available by the Lenders and the Holders in connection
with such Requisition in an amount sufficient to allow
such payment. On each Property Closing Date, on the
date of any Construction Advance or any Completion Date,
after delivery of the applicable Requisition and
satisfaction of the other conditions precedent for such
date, the Holders shall make a Holder Advance and the
Lenders shall make Loans to the Lessor to pay for the
Transaction Expenses, fees, expenses and other
disbursements referenced in this Section 7.1(b). The
Credit Parties agree to timely pay all amounts referred
to in this Section 7.1(b) to the extent not paid by the
Lessor.
(c) All fees payable pursuant to the Operative
Agreements shall be calculated on the basis of a year of
three hundred sixty (360) days for the actual days
elapsed.
7.2. Brokers' Fees.
The Credit Parties agree to pay or cause to be paid any
and all brokers' fees, if any, including without limitation
any interest and penalties thereon, which are payable in
connection with the transactions contemplated by this
Agreement and the other Operative Agreements.
7.3. Certain Fees and Expenses.
The Credit Parties agree to pay or cause to be paid
(a) the initial and annual Owner Trustee's fee (as described
in a separate letter agreement dated as of April 5, 2000, by
and between the Trust Company and Guarantor) and all
reasonable expenses of the Owner Trustee and any co-trustees
(including without limitation reasonable counsel fees and
expenses) or any successor owner trustee and/or co-trustee,
for acting as the owner trustee under the Trust Agreement,
(b) all reasonable costs and expenses incurred by the Credit
Parties, the Agent, the Lenders, the Holders or the Lessor in
entering into any Lease Supplement and any future amendments,
modifications, supplements, restatements and/or replacements
with respect to any of the Operative Agreements, whether or
not such Lease Supplement, amendments, modifications,
supplements, restatements and/or replacements are ultimately
entered into, or giving or withholding of waivers of consents
hereto or thereto, which have been requested by any Credit
Party, the Agent, the Lenders, the Holders or the Lessor, (c)
all reasonable costs and expenses incurred by the Credit
Parties, the Agent, the Lenders, the Holders or the Lessor in
connection with any exercise of remedies under any Operative
Agreement or any purchase of any Property by the Construction
Agent, the Lessee or any third party and (d) all reasonable
costs and expenses incurred by the Credit Parties, the Agent,
the Lenders, the Holders or the Lessor in connection with any
transfer or conveyance of any Property, whether or not such
transfer or conveyance is ultimately accomplished.
7.4. Facility Fee.
During the Commitment Period, the Credit Parties agree
to pay or to cause to be paid to the Agent for the account of
(a) the Lenders, respectively, a facility fee (the "Lender
Facility Fee") equal to the product of the aggregate
Commitments multiplied by a rate of 0.125% per annum and (b)
the Holders, respectively, a facility fee (the "Holder
Facility Fee") equal to the product of the aggregate Holder
Commitments multiplied by a rate of 0.125% per annum. Such
Facility Fees shall be payable quarterly in arrears on each
Facility Fee Payment Date. If all or a portion of any such
Facility Fee shall not be paid when due, such overdue amount
shall bear interest, payable by the Credit Parties on demand,
at a rate per annum equal to the ABR (or in the case of
Holder Yield, the ABR plus the Applicable Percentage for
Eurodollar Holder Advances) plus two percent (2%) from the
date of such non-payment until such amount is paid in full
(as well as before judgment).
7.5. Administrative Fee.
The Credit Parties shall pay or cause to paid an
administrative fee to the Agent (for its individual account)
on the terms and conditions set forth in the engagement
letter dated January 21, 2000 addressed to Mr. ▇▇▇▇ ▇▇▇▇▇▇,
Treasurer, Performance Food Group Company, ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice President, Corporate Real Estate and Asset Finance,
First Union Securities, Inc., Structured Products Group, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
SECTION 8. OTHER COVENANTS AND
AGREEMENTS.
8.1. Cooperation with the Credit Parties.
The Holders, the Lenders, the Lessor (at the direction
of the Majority Secured Parties) and the Agent shall, at the
expense of and to the extent reasonably requested by any
Credit Party (but without assuming additional liabilities on
account thereof and only to the extent such is acceptable to
the Holders, the Lenders, the Lessor (at the direction of the
Majority Secured Parties) and the Agent in their reasonable
discretion), cooperate with such Credit Party in connection
with such Credit Party satisfying its covenant obligations
contained in the Operative Agreements including without
limitation at any time and from time to time, promptly and
duly executing and delivering any and all such further
instruments, documents and financing statements (and
continuation statements related thereto).
8.2. Covenants of the Owner Trustee and the Holders.
Each of the Owner Trustee and the Holders hereby agrees
that so long as this Agreement is in effect:
(a) Neither the Owner Trustee (in its trust
capacity or in its individual capacity) nor any Holder
will create or permit to exist at any time, and each of
them will, at its own cost and expense, promptly take
such action as may be necessary duly to discharge, or to
cause to be discharged, all Lessor Liens on the
Properties attributable to it; provided, however, that
the Owner Trustee and the Holders shall not be required
to so discharge any such Lessor Lien while the same is
being contested in good faith by appropriate proceedings
diligently prosecuted so long as such proceedings shall
not materially and adversely affect the rights of the
Lessee under the Lease and the other Operative
Agreements or involve any material danger of impairment
of the Liens of the Security Documents or of the sale,
forfeiture or loss of, and shall not interfere with the
use or disposition of, any Property or title thereto or
any interest therein or the payment of Rent;
(b) Without prejudice to any right under the Trust
Agreement of the Owner Trustee to resign (subject to
requirement set forth in the Trust Agreement that such
resignation shall not be effective until a successor
shall have agreed to accept such appointment), or the
Holders' rights under the Trust Agreement to remove the
institution acting as the Owner Trustee (after consent
to such removal by the Agent as provided in the Trust
Agreement), each of the Owner Trustee and the Holders
hereby agrees with the Lessee and the Agent (i) not to
terminate or revoke the trust created by the Trust
Agreement except as permitted by Article VIII of the
Trust Agreement, (ii) not to amend, supplement,
terminate or revoke or otherwise modify any provision of
the Trust Agreement in such a manner as to adversely
affect the rights of any such party without the prior
written consent of such party and (iii) to comply with
all of the terms of the Trust Agreement, the
nonperformance of which would adversely affect such
party;
(c) The Owner Trustee or any successor may resign
or be removed by the Holders as the Owner Trustee, a
successor Owner Trustee may be appointed and a
corporation may become the Owner Trustee under the Trust
Agreement, only in accordance with the provisions of
Article IX of the Trust Agreement and, with respect to
such appointment, with the consent of the Guarantor (so
long as there shall be no Lease Event of Default that
shall have occurred and be continuing), which consent
shall not be unreasonably withheld or delayed;
(d) The Owner Trustee, in its capacity as the
Owner Trustee under the Trust Agreement, and not in its
individual capacity, shall not contract for, create,
incur or assume any Indebtedness, or enter into any
business or other activity or enter into any contracts
or agreements, other than pursuant to or under the
Operative Agreements;
(e) The Holders will not instruct the Owner
Trustee to take any action in violation of the terms of
any Operative Agreement;
(f) Neither any Holder nor the Owner Trustee shall
(i) commence any case, proceeding or other action with
respect to the Owner Trustee under any existing or
future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization,
arrangement, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its
debts, or (ii) seek appointment of a receiver, trustee,
custodian or other similar official with respect to the
Owner Trustee or for all or any substantial benefit of
the creditors of the Owner Trustee; and neither any
Holder nor the Owner Trustee shall take any action in
furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in
this paragraph;
(g) The Owner Trustee shall give prompt notice to
each Lessee, the Holders and the Agent if the Owner
Trustee's principal place of business or chief executive
office, or the office where the records concerning the
accounts or contract rights relating to any Property are
kept, shall cease to be located at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, or if it shall change its
name; and
(h) The Owner Trustee shall take or refrain from
taking such actions and grant or refrain from granting
such approvals with respect to the Operative Agreements
and/or relating to any Property in each case as directed
in writing by the Agent (until such time as the Loans
are paid in full, and then by the Majority Holders) or,
in connection with Sections 8.5 and 9.2 hereof, the
Lessee; provided, however, that notwithstanding the
foregoing provisions of this subparagraph (h) the Owner
Trustee, the Agent, the Lenders and the Holders each
acknowledge, covenant and agree that neither the Owner
Trustee nor the Agent shall act or refrain from acting,
regarding each Unanimous Vote Matter, until such party
has received the approval of each Lender and each Holder
affected by such matter.
8.3. Credit Party Covenants, Consent and Acknowledgment.
(a) Each Credit Party acknowledges and agrees that
the Owner Trustee, pursuant to the terms and conditions
of the Security Agreement and the Mortgage Instruments,
shall create Liens respecting the various personal
property, fixtures and real property described therein
in favor of the Agent. Each Credit Party hereby
irrevocably consents to the creation, perfection and
maintenance of such Liens. Each Credit Party shall, to
the extent reasonably requested by any of the other
parties hereto, cooperate with the other parties in
connection with their covenants herein or in the other
Operative Agreements and shall from time to time duly
execute and deliver any and all such future instruments,
documents and financing statements (and continuation
statements related thereto) as any other party hereto
may reasonably request.
(b) The Lessor hereby instructs each Credit Party,
and each Credit Party hereby acknowledges and agrees,
that until such time as the Loans and the Holder
Advances are paid in full and the Liens evidenced by the
Security Agreement and the Mortgage Instruments have
been released (i) any and all Rent (excluding Excepted
Payments which shall be payable to each Holder or other
Person as appropriate) and any and all other amounts of
any kind or type under any of the Operative Agreements
due and owing or payable to any Financing Party shall
instead be paid directly to the Agent (excluding
Excepted Payments which shall be payable to each Holder
or other Person as appropriate) or as the Agent may
direct from time to time for allocation and distribution
in accordance with the procedures set forth in Section
8.7 hereof, (ii) all rights of the Lessor under the
Lease shall be exercised by the Agent and (iii) each
Credit Party shall cause all notices, certificates,
financial statements, communications and other
information which are delivered, or are required to be
delivered, to the Lessor, to also be delivered at the
same time to the Agent.
(c) No Credit Party shall consent to or permit any
amendment, supplement or other modification of the terms
or provisions of any Operative Agreement except in
accordance with Section 12.4 of this Agreement.
(d) Each Lessee that has executed a Lease
Supplement with respect to any Property hereby covenants
and agrees to cause an Appraisal or reappraisal (in form
and substance reasonably satisfactory to the Agent and
from an appraiser selected by the Agent) to be issued
respecting any Property as requested by the Agent from
time to time (i) at each and every time as such shall be
required to satisfy any regulatory requirements imposed
on the Agent, the Lessor, the Trust Company, any Lender
and/or any Holder; (ii) after the occurrence of an Event
of Default; and (iii) at any time when the Agent shall
not have Appraisals respecting Properties then subject
to the transactions contemplated by the Operative
Agreements equal to at least twenty percent (20%) of the
sum of the Commitments and the Holder Commitments.
(e) Each Credit Party hereby covenants and agrees
that, except for amounts payable as Basic Rent, any and
all payment obligations owing from time to time under
the Operative Agreements by any Person relating to a
particular Property to the Agent, any Lender, any Holder
or any other Person shall (without further action) be
deemed to be Supplemental Rent obligations payable by
the Lessee that has executed a Lease Supplement with
respect to such Property and guaranteed by the
Guarantor. Without limitation, such obligations of the
Credit Parties shall include the Supplemental Rent
obligations pursuant to this Section 8.3(e), Section 3.3
of the Lease, arrangement fees, administrative fees,
participation fees, commitment fees, facility fees,
prepayment penalties, breakage costs, indemnities,
trustee fees and transaction expenses incurred by the
parties hereto in connection with the transactions
contemplated by the Operative Agreements.
(f) At any time the Lessor or the Agent is
entitled under the Operative Agreements to possession of
a Property or any component thereof, each of the
Construction Agent and the Lessee that has executed a
Lease Supplement with respect to such Property hereby
covenants and agrees, at its own cost and expense, to
assemble and make the same available to the Agent (on
behalf of the Lessor).
(g) The Lessee that has executed a Lease
Supplement with respect to any Property hereby covenants
and agrees that Equipment respecting any individual
parcel of Property shall at no time constitute in excess
of fifteen percent (15%) of the aggregate Advances
respecting such parcel of Property funded at such time
under the Operative Agreements.
(h) Each Credit Party hereby covenants and agrees
that as of Completion (i) the Property Cost for each
individual parcel of the Property shall be (A) no less
than $3,000,000 and (B) no more than $60,000,000 and
(ii) each parcel of the Property shall be a Permitted
Facility.
(i) The Guarantor hereby covenants and agrees that
it shall give prompt notice to the Agent if any Credit
Party's principal place of business or chief executive
office, or the office where the records concerning the
accounts or contract rights relating to any Property are
kept, or if any Credit Party's name, shall change.
(j) Unless the Agent otherwise agrees in writing,
the Lessee hereby covenants and agrees that the
aggregate Property Cost of Properties purchased for any
reason by any Lessee prior to the Expiration Date shall
not exceed ten percent (10%) of the aggregate Property
Cost for all Properties funded during the Commitment
Period.
(k) [Reserved].
(l) Each Credit Party hereby covenants and agrees
that the rights of the Lessees under this Agreement and
the Lease shall not impair or in any way diminish the
obligations of the Construction Agents and/or the rights
of the Lessor under the Agency Agreement.
(m) Each Credit Party shall promptly notify the
Agent, or cause the Agent to be promptly notified, upon
such Credit Party gaining knowledge of the occurrence of
any Default or Event of Default which is continuing at
such time. In any event, such notice shall be provided
to the Agent within ten (10) days of when such Credit
Party gains such knowledge.
(n) Until all of the obligations under the
Operative Agreements have been finally and indefeasibly
paid and satisfied in full and the Commitments and the
Holder Commitments terminated unless consent has been
obtained from the Majority Secured Parties, each Credit
Party will:
(i) except as permitted by the express
provisions of the Lessee Credit Agreement, preserve
and maintain its separate legal existence and all
rights, franchises, licenses and privileges
necessary to the conduct of its business, and
qualify and remain qualified as a foreign
corporation (or partnership, limited liability
company or other such similar entity, as the case
may be) and authorized to do business in each
jurisdiction in which the failure to do so qualify
would have a Material Adverse Effect;
(ii) pay and perform all obligations of the
Credit Parties under the Operative Agreements and
pay and perform (A) all taxes, assessments and
other governmental charges that may be levied or
assessed upon it or any of its property, and (B)
all other indebtedness, obligations and liabilities
in accordance with customary trade practices, which
if not paid would have a Material Adverse Effect;
provided that any Credit Party may contest any item
described in this Section 8.3(n)(ii) in good faith
so long as adequate reserves are maintained with
respect thereto in accordance with GAAP;
(iii) to the extent failure to do so would
have a Material Adverse Effect, observe and remain
in compliance with all applicable Laws and maintain
in full force and effect all Governmental Actions,
in each case applicable to the conduct of its
business; and keep in full force and effect all
licenses, certifications or accreditations
necessary for any Facility to carry on its
business; and
(iv) provided that the Agent, the Lenders and
the Holders use reasonable efforts to minimize
disruption to the business of the Lessee, permit
representatives of the Agent or any Lender or
Holder, from time to time, to visit and inspect its
properties; inspect, audit and make extracts from
its books, records and files, including without
limitation management letters prepared by
independent accountants; and discuss with its
principal officers, and its independent
accountants, its business, assets, liabilities,
financial condition, results of operations and
business prospects.
(o) [Reserved].
(p) The Lessee that has executed a Lease
Supplement with respect to any Property shall perform
any and all obligations of Lessor under, and cause
Lessor to otherwise remain in full compliance with, the
terms and provisions of each Ground Lease, if any.
(q) Promptly after obtaining any required
architectural approvals by any business park or any
other applicable entity with oversight responsibility
for the applicable Improvements, the Construction Agent
shall deliver to the Agent copies of the same.
(r) Prior to the Expiration Date or any earlier
termination of the Holder Commitments, the Lender
Commitments and/or any of the Operative Agreements, the
Credit Parties shall cause Advances to have been made in
an amount equal to no less than forty percent (40%) of
the sum of the aggregate Holder Commitments (as of the
Initial Closing Date or as such may be increased from
time to time) plus the aggregate Lender Commitments (as
of the Initial Closing Date or as much may be increased
from time to time).
8.4. Sharing of Certain Payments.
Except for Excepted Payments, the parties hereto
acknowledge and agree that all payments due and owing by any
Credit Party to the Lessor under the Lease or any of the
other Operative Agreements shall be made by such Credit Party
directly to the Agent as more particularly provided in
Section 8.3 hereof. The Lessor, the Holders, the Agent, the
Lenders and the Credit Parties acknowledge the terms of
Section 8.7 of this Agreement regarding the allocation of
payments and other amounts made or received from time to time
under the Operative Agreements and agree, that all such
payments and amounts are to be allocated as provided in
Section 8.7 of this Agreement.
8.5. Grant of Easements, etc.
The Agent, the Lenders and the Holders hereby agree
that, so long as no Event of Default shall have occurred and
be continuing, the Owner Trustee shall, from time to time at
the request of the Lessee that has executed a Lease
Supplement with respect to a particular Property (and with
the prior consent of the Agent, which consent shall not be
unreasonably withheld), in connection with the transactions
contemplated by the Agency Agreement, the Lease or the other
Operative Agreements, (i) grant easements and other rights in
the nature of easements with respect to such Property, (ii)
release existing easements or other rights in the nature of
easements which are for the benefit of such Property, (iii)
execute and deliver to any Person any instrument appropriate
to confirm or effect such grants or releases, and (iv)
execute and deliver to any Person such other documents or
materials in connection with the acquisition, development,
construction, testing or operation of any such Property,
including without limitation reciprocal easement agreements,
construction contracts, operating agreements, development
agreements, plats, replats or subdivision documents;
provided, that each of the agreements referred to in this
Section 8.5 shall be of the type normally executed by such
Lessee in the ordinary course of such Lessee's business and
shall be on commercially reasonable terms so as not to
diminish the value of such Property in any material respect.
8.6. Appointment by the Agent, the Lenders, the Holders
and the Owner Trustee.
The Holders hereby appoint the Agent to act as
collateral agent for the Holders in connection with the Lien
granted by the Security Documents to secure the Holder
Amount. The Lenders and the Holders acknowledge and agree
and direct that the rights and remedies of the beneficiaries
of the Lien of the Security Documents shall be exercised by
the Agent on behalf of the Lenders and the Holders as
directed from time to time by the Majority Secured Parties
or, pursuant to Sections 8.2(h) and 12.4, all of the Lenders
and the Holders, as the case may be; provided, in all cases,
the Agent shall allocate payments and other amounts received
in accordance with Section 8.7. The Agent is further
appointed to provide notices under the Operative Agreements
on behalf of the Owner Trustee (as determined by the Agent,
in its reasonable discretion), to receive notices under the
Operative Agreements on behalf of the Owner Trustee and
(subject to Sections 8.5 and 9.2) to take such other action
under the Operative Agreements on behalf of the Owner Trustee
as the Agent shall determine in its reasonable discretion
from time to time. The Agent hereby accepts such
appointments. For purposes hereof, the provisions of Section
7 of the Credit Agreement, together with such other terms and
provisions of the Credit Agreement and the other Operative
Agreements as required for the full interpretation and
operation of Section 7 of the Credit Agreement are hereby
incorporated by reference as if restated herein for the
mutual benefit of the Agent and each Holder as if each Holder
were a Lender thereunder. Outstanding Holder Advances and
outstanding Loans shall each be taken into account for
purposes of determining Majority Secured Parties. Further,
the Agent shall be entitled to take such action on behalf of
the Owner Trustee as is delegated to the Agent under any
Operative Agreement (whether express or implied) as may be
reasonably incidental thereto. The parties hereto hereby
agree to the provisions contained in this Section 8.6. Any
appointment of a successor agent under Section 7.9 of the
Credit Agreement shall also be effective as an appointment of
a successor agent for purposes of this Section 8.6.
8.7. Collection and Allocation of Payments and Other
Amounts.
(a) Each Credit Party has agreed pursuant to
Section 5.8 and otherwise in accordance with the terms
of this Agreement to pay to (i) the Agent any and all
Rent (excluding Excepted Payments) and any and all other
amounts of any kind or type under any of the Operative
Agreements due and owing or payable to any Financing
Party and (ii) each Financing Party as appropriate the
Excepted Payments. Promptly after receipt, the Agent
shall apply and allocate, in accordance with the terms
of this Section 8.7, such amounts received from any
Credit Party and all other payments, receipts and other
consideration of any kind whatsoever received by the
Agent pursuant to the Security Agreement or otherwise
received by the Agent, the Holders or the Lender in
connection with the Collateral, the Security Documents
or any of the other Operative Agreements. Ratable
distributions among the Lenders and the Holders under
this Section 8.7 shall be made based on (in the case of
the Lenders) the ratio of the outstanding Loans to the
aggregate Property Cost and (in the case of the Holders)
the ratio of the outstanding Holder Advances to the
aggregate Property Cost. Ratable distributions among
the Tranche A Lenders under this Section 8.7 shall be
made based on the ratio of the individual Tranche A
Lender's Commitment for Tranche A Loans to the aggregate
of all the Tranche A Lenders' Commitments for Tranche A
Loans. Ratable distributions among the Tranche B Lenders
under this Section 8.7 shall be made based on the ratio
of the individual Tranche B Lender's Commitment for
Tranche B Loans to the aggregate of all the Tranche B
Lenders' Commitments for Tranche B Loans. Ratable
distributions among the Lenders (in situations where the
Tranche A Lenders are not differentiated from the
Tranche B Lenders) shall be made based on the ratio of
the individual Lender's Commitment to the aggregate of
all the Lenders' Commitments. Ratable distributions
among the Holders under this Section 8.7 shall be based
on the ratio of the individual Holder's Holder
Commitment to the aggregate of all the Holders' Holder
Commitments.
(b) Payments and other amounts received by the
Agent from time to time in accordance with the terms of
subparagraph (a) shall be applied and allocated as
follows (subject in all cases to Section 8.7(c)):
(i) Any such payment or amount identified as
or deemed to be Basic Rent shall be applied and
allocated by the Agent first, ratably to the
Lenders and the Holders for application and
allocation to the payment of interest on the Loans
and thereafter the principal of the Loans which is
due and payable on such date and to the payment of
accrued Holder Yield with respect to the Holder
Advances and thereafter the portion of the Holder
Advances which is due on such date; and second, if
no Default or Event of Default is in effect, any
excess shall be paid to the applicable Lessee or
such Person or Persons as the applicable Lessee may
designate; provided, that if a Default or Event of
Default is in effect, such excess (if any) shall
instead be held by the Agent until the earlier of
(I) the first date thereafter on which no Default
or Event of Default shall be in effect (in which
case such payments or returns shall then be made to
the applicable Lessee such other Person or Persons
as the applicable Lessee may designate) and (II)
the Maturity Date or the Expiration Date, as the
case may be (or, if earlier, the date of any
Acceleration), in which case such amounts shall be
applied and allocated in the manner contemplated by
Section 8.7(b)(iv).
(ii) If on any date the Agent or the Lessor
shall receive any amount in respect of (A) any
Casualty or Condemnation pursuant to Sections
15.1(a) or 15.1(g) of the Lease (excluding any
payments in respect thereof which are payable to
the Lessee that has executed a Lease Supplement
with respect to the applicable Property subject to
such Casualty or Condemnation in accordance with
the Lease), or (B) the Termination Value in
connection with the delivery of a Termination
Notice pursuant to Article XVI of the Lease, or (C)
the Termination Value in connection with the
exercise of the Purchase Option under Section 20.1
of the Lease or the exercise of the option of the
Lessor to transfer the Properties to the Lessee
that has executed a Lease Supplement with respect
to the applicable Property pursuant to Section 20.3
of the Lease, or (D) any payment required to be
made or elected to be made by the Construction
Agent that has executed a Lease Supplement with
respect to the applicable Property to the Lessor
pursuant to the terms of the Agency Agreement, then
in each case, the Lessor shall be required to pay
such amount received (1) if no Acceleration has
occurred, to prepay the principal balance of the
Loans and the Holder Advances, on a pro rata basis,
a portion of such amount to be distributed to the
Lenders and the Holders or (2) if an Acceleration
has occurred, to apply and allocate the proceeds
respecting Sections 8.7(b)(ii)(A) through
8.7(b)(ii)(D) in accordance with Section
8.7(b)(iii) hereof.
(iii) An amount equal to any payment
identified as proceeds of the sale or other
disposition (or lease upon the exercise of
remedies) of the Properties or any portion thereof,
whether pursuant to Article XXII of the Lease or
the exercise of remedies under the Security
Documents or otherwise, the execution of remedies
set forth in the Lease and any payment in respect
of excess wear and tear pursuant to Section 22.3 of
the Lease (whether such payment relates to a period
before or after the Construction Period Termination
Date) shall be applied and allocated by the Agent
first, ratably to the payment of the principal and
interest of the Tranche B Loans then outstanding,
second, ratably to the payment to the Holders of
the outstanding principal balance of all Holder
Advances plus all outstanding Holder Yield with
respect to such outstanding Holder Advances, third,
to the extent such amount exceeds the maximum
amount to be returned pursuant to the foregoing
provisions of this paragraph (iii), ratably to the
payment of the principal and interest of the
Tranche A Loans then outstanding, fourth, to any
and all other amounts owing under the Operative
Agreements to the Lenders under the Tranche B
Loans, fifth, to any and all other amounts owing
under the Operative Agreements to the Holders,
sixth, to any and all other amounts owing under the
Operative Agreements to the Lenders under the
Tranche A Loans, and seventh, to the extent moneys
remain after application and allocation pursuant to
clauses first through sixth above, to the Owner
Trustee for application and allocation to any and
all other amounts owing to the Holders or the Owner
Trustee and as the Holders shall determine;
provided, where no Event of Default shall exist and
be continuing and a prepayment is made for any
reason with respect to less than the full amount of
the outstanding principal amount of the Loans and
the outstanding Holder Advances, the proceeds shall
be applied and allocated ratably to the Lenders and
to the Holders.
(iv) An amount equal to (A) any such payment
identified as a payment pursuant to Section 22.1(b)
of the Lease (or otherwise) of the Maximum Residual
Guarantee Amount (and any such lesser amount as may
be required by Section 22.1(b) of the Lease) in
respect of the Properties and (B) any other amount
payable upon any exercise of remedies after the
occurrence of an Event of Default not covered by
Sections 8.7(b)(i) or 8.7(b)(iii) above (including
without limitation any amount received in
connection with an Acceleration which does not
represent proceeds from the sale or liquidation of
the Properties), shall be applied and allocated by
the Agent first, ratably, to the payment of the
principal and interest balance of Tranche A Loans
then outstanding, second, ratably to the payment of
the principal and interest balance of the Tranche B
Loans then outstanding, third, ratably to the
payment of the principal balance of all Holder
Advances plus all outstanding Holder Yield with
respect to such outstanding Holder Advances,
fourth, to the payment of any other amounts owing
to the Lenders hereunder or under any of the other
Operative Agreement, and fifth, to the extent
moneys remain after application and allocation
pursuant to clauses first through fourth above, to
the Owner Trustee for application and allocation to
Holder Advances and Holder Yield and any other
amounts owing to the Holders or the Owner Trustee
as the Holders shall determine.
(v) An amount equal to any such payment
identified as Supplemental Rent shall be applied
and allocated by the Agent to the payment of any
amounts then owing to the Agent, the Lenders, the
Holders and the other parties to the Operative
Agreements (or any of them) (other than any such
amounts payable pursuant to the preceding
provisions of this Section 8.7(b)) as shall be
determined by the Agent in its reasonable
discretion; provided, however, that Supplemental
Rent received upon the exercise of remedies after
the occurrence and continuance of an Event of
Default in lieu of or in substitution of the
Maximum Residual Guarantee Amount or as a partial
payment thereon shall be applied and allocated as
set forth in Section 8.7(b)(iv).
(vi) The Agent in its reasonable judgment
shall identify the nature of each payment or amount
received by the Agent and apply and allocate each
such amount in the manner specified above.
(c) Upon the payment in full of the Loans, the
Holder Advances and all other amounts then due and owing
by the Owner Trustee hereunder or under any Credit
Document and the payment in full of all other amounts
then due and owing to the Lenders, the Holders, the
Agent, the Owner Trustee and the other Financing Parties
pursuant to the Operative Agreements, any moneys
remaining with the Agent shall be returned to the
applicable Lessee. In the event of an Acceleration it
is agreed that, prior to the application and allocation
of amounts received by the Agent in the order described
in Section 8.7(b) above or any distribution of money to
the applicable Lessee, any such amounts shall first be
applied and allocated to the payment of (i) any and all
sums advanced by the Agent in order to preserve the
Collateral or to preserve its Lien thereon, (ii) the
expenses of retaking, holding, preparing for sale or
lease, selling or otherwise disposing or realizing on
the Collateral, or of any exercise by the Agent of its
rights under the Security Documents, together with
reasonable attorneys' fees and expenses and court costs
and (iii) any and all other amounts reasonably owed to
the Agent under or in connection with the transactions
contemplated by the Operative Agreements (including
without limitation any accrued and unpaid administration
fees).
8.8. Release of Properties, etc.
If the Lessee that has executed a Lease Supplement with
respect to a particular Property shall at any time purchase
such Property pursuant to the Lease, or the Construction
Agent that has executed a Lease Supplement with respect to a
particular Property shall purchase such Property pursuant to
the Agency Agreement, or if any Property shall be sold in
accordance with Article XXII of the Lease, then, upon
satisfaction by the Owner Trustee of its obligation to prepay
the Loans, Holder Advances and all other amounts owing to the
Lenders and the Holders under the Operative Agreements, the
Agent is hereby authorized and directed to release such
Properties from the Liens created by the Security Documents
to the extent of its interest therein. In addition, upon the
termination of the Commitments and the Holder Commitments and
the payment in full of the Loans, the Holder Advances and all
other amounts owing by the Owner Trustee and the Credit
Parties hereunder or under any other Operative Agreement the
Agent is hereby authorized and directed to release all of the
Properties from the Liens created by the Security Documents
to the extent of its interest therein. Upon request of the
Owner Trustee following any such release, the Agent shall, at
the sole cost and expense of the Lessee, execute and deliver
to the Owner Trustee and the Credit Parties such documents as
the Owner Trustee or the Credit Parties shall reasonably
request to evidence such release.
8.9 Appointment of the Guarantor as Agent for each
Lessee.
Each Lessee and each Construction Agent hereby appoints
the Guarantor to act as its agent for all purposes under this
Agreement and the other Operative Agreements (including,
without limitation, with respect to all matters related to
the borrowing and repayment of Loans and Holder Advances).
Each Lessee and each Construction Agent acknowledges and
agrees that (a) the Guarantor may execute such documents on
behalf of any Lessee or Construction Agent as the Guarantor
deems appropriate in its sole discretion and each Lessee or
Construction Agent shall be bound by and obligated by all of
the terms of any such document executed by the Guarantor on
its behalf, (b) any notice or other communication delivered
by the Agent or any other Financing Party hereunder to the
Guarantor shall be deemed to have been delivered to each
Lessee and each Construction Agent and (c) the Agent and each
of the other Financing Parties shall accept (and shall be
permitted to rely on) any document or agreement executed by
the Guarantor on behalf of any Lessee or Construction Agent.
Each Financing Party agrees that any notice required to be
given to any Lessee or Construction Agent (other than the
Guarantor) shall also be given to the Guarantor in its
capacity as agent under this Section 8.9.
SECTION 9. CREDIT AGREEMENT AND TRUST
AGREEMENT.
9.1. Guarantor's Credit Agreement Rights.
Notwithstanding anything to the contrary contained in
the Credit Agreement, the Agent, the Lenders, the Holders,
the Credit Parties and the Owner Trustee hereby agree that,
prior to the occurrence and continuation of any Default or
Event of Default, the Guarantor shall have the following
rights:
(a) the right to designate an account to which
amounts funded under the Operative Agreements shall be
credited pursuant to Section 2.3(a) of the Credit
Agreement;
(b) the right to terminate or reduce the
Commitments pursuant to Section 2.5(a) of the Credit
Agreement;
(c) the right to exercise the conversion and
continuation options pursuant to Section 2.7 of the
Credit Agreement;
(d) the right to receive any notice and any
certificate, in each case issued pursuant to Section
2.11(a) of the Credit Agreement;
(e) the right to replace any Lender pursuant to
Section 2.11(b) of the Credit Agreement;
(f) the right to approve any successor agent
pursuant to Section 7.9 of the Credit Agreement; and
(g) the right to consent to any assignment by a
Lender to which the Lessor has the right to consent
pursuant to Section 9.8 of the Credit Agreement.
9.2. The Guarantor's Trust Agreement Rights.
Notwithstanding anything to the contrary contained in
the Trust Agreement, the Credit Parties, the Owner Trustee
and the Holders hereby agree that, prior to the occurrence
and continuation of any Default or Event of Default, the
Guarantor shall have the following rights:
(a) the right to exercise the conversion and
continuation options pursuant to Section 3.8 of the
Trust Agreement;
(b) the right to receive any notice and any
certificate, in each case issued pursuant to Section
3.9(a) of the Trust Agreement;
(c) the right to replace any Holder pursuant to
Section 3.9(b) of the Trust Agreement;
(d) the right to exercise the removal options
contained in Section 9.1 of the Trust Agreement;
provided, however, that no removal of the Owner Trustee
and appointment of a successor Owner Trustee by the
Holders pursuant to Section 9.1 of the Trust Agreement
shall be made without the prior written consent (not to
be unreasonably withheld or delayed) of the Lessee.
SECTION 10. TRANSFER OF INTEREST.
10.1. Restrictions on Transfer.
Each Lender may participate, assign or transfer all or a
portion of its interest hereunder and under the other
Operative Agreements in accordance with Sections 9.7 and 9.8
of the Credit Agreement; provided, that each Lender that
participates, assigns or transfers all or a portion of its
interest hereunder and under the other Operative Agreements
shall deliver to the Agent a copy of each Assignment and
Acceptance (as referenced in Section 9.8 of the Credit
Agreement) for purposes of maintaining the Register. The
Holders may, directly or indirectly, assign, convey or
otherwise transfer any of their right, title or interest in
or to the Trust Estate or the Trust Agreement with the prior
written consent of the Agent and each Lessee (which consent
shall not be unreasonably withheld or delayed) and in
accordance with the terms of Section 11.8(b) of the Trust
Agreement. The Owner Trustee may, subject to the rights of
each Lessee under the Lease and the other Operative
Agreements and to the Lien of the applicable Security
Documents but only with the prior written consent of the
Agent (which consent may be withheld by the Agent in its sole
discretion) and (provided, no Default or Event of Default has
occurred and is continuing) with the consent of each Lessee,
directly or indirectly, assign, convey, appoint an agent with
respect to enforcement of, or otherwise transfer any of its
right, title or interest in or to any Property, the Lease,
the Trust Agreement and the other Operative Agreements
(including without limitation any right to indemnification
thereunder), or any other document relating to a Property or
any interest in a Property as provided in the Trust Agreement
and the Lease. The provisions of the immediately preceding
sentence shall not apply to the obligations of the Owner
Trustee to transfer Property to any Lessee or a third party
purchaser pursuant to Article XXII of the Lease upon payment
for such Property in accordance with the terms and conditions
of the Lease. No Credit Party may assign any of the
Operative Agreements or any of their respective rights or
obligations thereunder or with respect to any Property in
whole or in part to any Person without the prior written
consent of the Agent, the Lenders, the Holders and the
Lessor.
10.2. Effect of Transfer.
From and after any transfer effected in accordance with
this Section 10, the transferor shall be released, to the
extent of such transfer, from its liability hereunder and
under the other documents to which it is a party in respect
of obligations to be performed on or after the date of such
transfer; provided, however, that any transferor shall remain
liable hereunder and under such other documents to the extent
that the transferee shall not have assumed the obligations of
the transferor thereunder. Upon any transfer by the Owner
Trustee, a Holder or a Lender as above provided, any such
transferee shall assume the obligations of the Owner Trustee,
the Holder or the Lender, as the case may be, and shall be
deemed an "Owner Trustee", "Holder", or "Lender", as the case
may be, for all purposes of such documents and each reference
herein to the transferor shall thereafter be deemed a
reference to such transferee for all purposes, except as
provided in the preceding sentence. Notwithstanding any
transfer of all or a portion of the transferor's interest as
provided in this Section 10, the transferor shall be entitled
to all benefits accrued and all rights vested prior to such
transfer including without limitation rights to
indemnification under any such document.
SECTION 11. INDEMNIFICATION.
11.1. General Indemnity.
Subject to Section 11.6, whether or not any of the
transactions contemplated hereby shall be consummated, the
Indemnity Provider hereby assumes liability for and agrees to
defend, indemnify and hold harmless each Indemnified Person
on an After Tax Basis from and against any Claims, which may
be imposed on, incurred by or asserted against an Indemnified
Person by any third party, including without limitation
Claims arising from the negligence of an Indemnified Person
(but not to the extent such Claims arise from the gross
negligence or willful misconduct of such Indemnified Person
itself, as determined by a court of competent jurisdiction,
as opposed to gross negligence or willful misconduct imputed
to such Indemnified Person) in any way relating to or arising
or alleged to arise out of the execution, delivery,
performance or enforcement of this Agreement, the Lease or
any other Operative Agreement or on or with respect to any
Property or any component thereof, including without
limitation Claims in any way relating to or arising or
alleged to arise out of (a) the financing, refinancing,
purchase, acceptance, rejection, ownership, design,
construction, refurbishment, development, delivery,
acceptance, nondelivery, leasing, subleasing, possession,
use, occupancy, operation, maintenance repair, modification,
transportation, condition, sale, return, repossession
(whether by summary proceedings or otherwise), or any other
disposition of any Property or any part thereof, including
without limitation the acquisition, holding or disposition of
any interest in the Property, lease or agreement comprising a
portion of any thereof; (b) any latent or other defects in
any Property or any portion thereof whether or not
discoverable by an Indemnified Person or the Indemnity
Provider; (c) a violation of Environmental Laws,
Environmental Claims or other loss of or damage to any
property or the environment relating to the Property, the
Lease, the Agency Agreement or the Indemnity Provider; (d)
the Operative Agreements, or any transaction contemplated
thereby; (e) any breach by the Indemnity Provider of any of
its representations or warranties under the Operative
Agreements to which the Indemnity Provider is a party or
failure by the Indemnity Provider to perform or observe any
covenant or agreement to be performed by it under any of the
Operative Agreements; (f) the transactions contemplated
hereby or by any other Operative Agreement, in respect of the
application of Parts 4 and 5 of Subtitle B of Title I of
ERISA; (g) personal injury, death or property damage,
including without limitation Claims based on strict or
absolute liability in tort; and (h) any fees, expenses and/or
other assessments by any business park or any other
applicable entity with oversight responsibility for the
applicable Property.
If a written Claim is made against any Indemnified
Person or if any proceeding shall be commenced against such
Indemnified Person (including without limitation a written
notice of such proceeding), for any Claim, such Indemnified
Person shall promptly notify the Indemnity Provider in
writing and shall not take action with respect to such Claim
without the consent of the Indemnity Provider for thirty (30)
days after the receipt of such notice by the Indemnity
Provider; provided, however, that in the case of any such
Claim, if action shall be required by law or regulation to be
taken prior to the end of such period of thirty (30) days,
such Indemnified Person shall endeavor to, in such notice to
the Indemnity Provider, inform the Indemnity Provider of such
shorter period, and no action shall be taken with respect to
such Claim without the consent of the Indemnity Provider
before seven (7) days before the end of such shorter period;
provided, further, that the failure of such Indemnified
Person to give the notices referred to in this sentence shall
not diminish the Indemnity Provider's obligation hereunder
except to the extent such failure precludes in all respects
the Indemnity Provider from contesting such Claim.
If, within thirty (30) days of receipt of such notice
from the Indemnified Person (or such shorter period as the
Indemnified Person has notified the Indemnity Provider is
required by law or regulation for the Indemnified Person to
respond to such Claim), the Indemnity Provider shall request
in writing that such Indemnified Person respond to such
Claim, the Indemnified Person shall, at the expense of the
Indemnity Provider, in good faith conduct and control such
action (including without limitation by pursuit of appeals)
(provided, however, that (A) if such Claim, in the Indemnity
Provider's reasonable discretion, can be pursued by the
Indemnity Provider on behalf of or in the name of such
Indemnified Person, the Indemnified Person, at the Indemnity
Provider's request, shall allow the Indemnity Provider to
conduct and control the response to such Claim and (B) in the
case of any Claim (and notwithstanding the provisions of the
foregoing subsection (A)), the Indemnified Person may request
the Indemnity Provider to conduct and control the response to
such Claim (with counsel to be selected by the Indemnity
Provider and consented to by such Indemnified Person, such
consent not to be unreasonably withheld; provided, however,
that any Indemnified Person may retain separate counsel at
the expense of the Indemnity Provider in the event of a
conflict of interest between such Indemnified Person and the
Indemnity Provider)) by, in the sole discretion of the Person
conducting and controlling the response to such Claim (1)
resisting payment thereof, (2) not paying the same except
under protest, if protest is necessary and proper, (3) if the
payment be made, using reasonable efforts to obtain a refund
thereof in appropriate administrative and judicial
proceedings, or (4) taking such other action as is reasonably
requested by the Indemnity Provider from time to time.
The party controlling the response to any Claim shall
consult in good faith with the non-controlling party and
shall keep the non-controlling party reasonably informed as
to the conduct of the response to such Claim; provided, that
all decisions ultimately shall be made in the discretion of
the controlling party. The parties agree that an Indemnified
Person may at any time decline to take further action with
respect to the response to such Claim and may settle such
Claim if such Indemnified Person shall waive its rights to
any indemnity from the Indemnity Provider that otherwise
would be payable in respect of such Claim (and any future
Claim, the pursuit of which is precluded by reason of such
resolution of such Claim) and shall pay to the Indemnity
Provider any amount previously paid or advanced by the
Indemnity Provider pursuant to this Section 11.1 by way of
indemnification or advance for the payment of an amount
regarding such Claim.
Notwithstanding the foregoing provisions of this Section
11.1, an Indemnified Person shall not be required to take any
action and the Indemnity Provider shall not be permitted to
respond to any Claim in its own name or that of the
Indemnified Person unless (A) the Indemnity Provider shall
have agreed to pay and shall pay to such Indemnified Person
on demand and on an After Tax Basis all reasonable costs,
losses and expenses that such Indemnified Person actually
incurs in connection with such Claim, including without
limitation all reasonable legal, accounting and investigatory
fees and disbursements and, if the Indemnified Person has
informed the Indemnity Provider that it intends to contest
such Claim (whether or not the control of the contest is then
assumed by the Indemnity Provider), the Indemnity Provider
shall have agreed that the Claim is an indemnifiable Claim
hereunder, (B) in the case of a Claim that must be pursued in
the name of an Indemnified Person (or an Affiliate thereof),
the amount of the potential indemnity (taking into account
all similar or logically related Claims that have been or
could be raised for which the Indemnity Provider may be
liable to pay an indemnity under this Section 11.1) exceeds
$25,000 (or such lesser amount as may be subsequently agreed
between the Indemnity Provider and the Indemnified Person),
(C) the Indemnified Person shall have reasonably determined
that the action to be taken will not result in any material
danger of sale, forfeiture or loss of the Property, or any
part thereof or interest therein, will not interfere with the
payment of Rent, and will not result in risk of criminal
liability, (D) if such Claim shall involve the payment of any
amount prior to the resolution of such Claim, the Indemnity
Provider shall provide to the Indemnified Person an interest-
free advance in an amount equal to the amount that the
Indemnified Person is required to pay (with no additional net
after-tax cost to such Indemnified Person) prior to the date
such payment is due, (E) in the case of a Claim that must be
pursued in the name of an Indemnified Person (or an Affiliate
thereof), the Indemnity Provider shall have provided to such
Indemnified Person an opinion of independent counsel selected
by the Indemnity Provider and reasonably satisfactory to the
Indemnified Person stating that a reasonable basis exists to
contest such Claim (or, in the case of an appeal of an
adverse determination, an opinion of such counsel to the
effect that the position asserted in such appeal will more
likely than not prevail) and (F) no Event of Default shall
have occurred and be continuing. In no event shall an
Indemnified Person be required to appeal an adverse judicial
determination to the United States Supreme Court. In
addition, an Indemnified Person shall not be required to
contest any Claim in its name (or that of an Affiliate) if
the subject matter thereof shall be of a continuing nature
and shall have previously been decided adversely by a court
of competent jurisdiction pursuant to the contest provisions
of this Section 11.1, unless there shall have been a change
in law (or interpretation thereof) and the Indemnified Person
shall have received, at the Indemnity Provider's expense, an
opinion of independent counsel selected by the Indemnity
Provider and reasonably acceptable to the Indemnified Person
stating that as a result of such change in law (or
interpretation thereof), it is more likely than not that the
Indemnified Person will prevail in such contest. In no event
shall the Indemnity Provider be permitted to adjust or settle
any Claim without the consent of the Indemnified Person to
the extent any such adjustment or settlement involves, or is
reasonably likely to involve, any performance by or adverse
admission by or with respect to the Indemnified Person.
11.2. General Tax Indemnity.
(a) Subject to Section 11.6. the Indemnity
Provider shall pay and assume liability for, and does
hereby agree to indemnify, protect and defend each
Property and all Indemnified Persons, and hold them
harmless against, all Impositions on an After Tax Basis,
and all payments pursuant to the Operative Agreements
shall be made free and clear of and without deduction
for any and all present and future Impositions.
(b) Notwithstanding anything to the contrary in
Section 11.2(a) hereof, the following shall be excluded
from the indemnity required by Section 11.2(a):
(i) Taxes (other than Taxes that are, or
are in the nature of, sales, use, rental, value
added, transfer or property taxes) that are imposed
on a Indemnified Person (other than the Lessor, the
Owner Trustee and the Trust) by the United States
federal government that are based on or measured by
the net income (including without limitation taxes
based on capital gains and minimum taxes) of such
Person; provided, that this clause (i) shall not be
interpreted to prevent a payment from being made on
an After Tax Basis if such payment is otherwise
required to be so made;
(ii) Taxes (other than Taxes that are, or
are in the nature of, sales, use, rental, value
added, transfer or property taxes) that are imposed
on any Indemnified Person (other than the Lessor,
the Owner Trustee and the Trust) by any state or
local jurisdiction or taxing authority within any
state or local jurisdiction and that are based upon
or measured by the net income (including without
limitation taxes based on capital gains and minimum
taxes) of such Person; provided that such Taxes
shall not be excluded under this subparagraph (ii)
to the extent such Taxes would have been imposed
had the location, possession or use of any Property
in, the location or the operation of the applicable
Lessee in, or the applicable Lessee's making
payments under the Operative Agreements from, the
jurisdiction imposing such Taxes been the sole
connection between such Indemnified Person and the
jurisdiction imposing such Taxes; provided,
further, that this clause (ii) shall not be
interpreted to prevent a payment from being made on
an After Tax Basis if such payment is otherwise
required to be so made;
(iii) any Tax to the extent it
relates to any act, event or omission that occurs
after the termination of the Lease and redelivery
or sale of the Property in accordance with the
terms of the Lease (but not any Tax that relates to
such termination, redelivery or sale and/or to any
period prior to such termination, redelivery or
sale); and
(iv) any Taxes which are imposed on an
Indemnified Person as a result of the gross
negligence or willful misconduct of such
Indemnified Person itself, as determined by a court
of competent jurisdiction (as opposed to gross
negligence or willful misconduct imputed to such
Indemnified Person), but not Taxes imposed as a
result of ordinary negligence of such Indemnified
Person;
(c) (i) Subject to the terms of Section 11.2(f),
the Indemnity Provider shall pay or cause to be
paid all Impositions directly to the taxing
authorities where feasible and otherwise to the
Indemnified Person, as appropriate, and the
Indemnity Provider shall at its own expense, upon
such Indemnified Person's reasonable request,
furnish to such Indemnified Person copies of
official receipts or other satisfactory proof
evidencing such payment.
(ii) In the case of Impositions for which
no contest is conducted pursuant to Section 11.2(f)
and which the Indemnity Provider pays directly to
the taxing authorities, the Indemnity Provider
shall pay such Impositions prior to the latest time
permitted by the relevant taxing authority for
timely payment. In the case of Impositions for
which the Indemnity Provider reimburses an
Indemnified Person, the Indemnity Provider shall do
so within thirty (30) days after receipt by the
Indemnity Provider of demand by such Indemnified
Person describing in reasonable detail the nature
of the Imposition and the basis for the demand
(including without limitation the computation of
the amount payable), accompanied by receipts or
other reasonable evidence of such demand. In the
case of Impositions for which a contest is
conducted pursuant to Section 11.2(f), the
Indemnity Provider shall pay such Impositions or
reimburse such Indemnified Person for such
Impositions, to the extent not previously paid or
reimbursed pursuant to subsection (a), prior to the
latest time permitted by the relevant taxing
authority for timely payment after conclusion of
all contests under Section 11.2(f).
(iii) At the Indemnity Provider's
request, the amount of any indemnification payment
by the Indemnity Provider pursuant to subsection
(a) shall be verified and certified by an
independent public accounting firm mutually
acceptable to the Indemnity Provider and the
Indemnified Person. The fees and expenses of such
independent public accounting firm shall be paid by
the Indemnity Provider unless such verification
shall result in an adjustment in the Indemnity
Provider's favor of fifteen percent (15%) or more
of the payment as computed by the Indemnified
Person, in which case such fee shall be paid by the
Indemnified Person.
(d) The Indemnity Provider shall be responsible
for preparing and filing any real and personal property
or ad valorem tax returns in respect of each Property
and any other tax returns required for the Owner Trustee
respecting the transactions described in the Operative
Agreements (other than Owner Trustee's income and
franchise tax returns and returns relating to Taxes
described in Section 11.2(b) hereof). In case any other
report or tax return shall be required to be made with
respect to any obligations of the Indemnity Provider
under or arising out of subsection (a) and of which the
Indemnity Provider has knowledge or should have
knowledge, the Indemnity Provider, at its sole cost and
expense, shall notify the relevant Indemnified Person of
such requirement and (except if such Indemnified Person
notifies the Indemnity Provider that such Indemnified
Person intends to prepare and file such report or
return) (A) to the extent required or permitted by and
consistent with Legal Requirements, make and file in the
Indemnity Provider's name such return, statement or
report; and (B) in the case of any other such return,
statement or report required to be made in the name of
such Indemnified Person, advise such Indemnified Person
of such fact and prepare such return, statement or
report for filing by such Indemnified Person or, where
such return, statement or report shall be required to
reflect items in addition to any obligations of the
Indemnity Provider under or arising out of subsection
(a), provide such Indemnified Person at the Indemnity
Provider's expense with information sufficient to permit
such return, statement or report to be properly made
with respect to any obligations of the Indemnity
Provider under or arising out of subsection (a). Such
Indemnified Person shall, upon the Indemnity Provider's
request and at the Indemnity Provider's expense, provide
any data maintained by such Indemnified Person (and not
otherwise available to or within the control of the
Indemnity Provider) with respect to each Property which
the Indemnity Provider may reasonably require to prepare
any required tax returns or reports.
(e) As between the Indemnity Provider on one hand,
and each Financing Party on the other hand, the
Indemnity Provider shall be responsible for, and the
Indemnity Provider shall indemnify and hold harmless
each Financing Party (without duplication of any
indemnification required by subsection (a)) on an After
Tax Basis against, any obligation for United States or
foreign withholding taxes or similar levies, imposts,
charges, fees, deductions or withholdings (collectively,
"Withholdings") imposed in respect of the interest
payable on the Notes, Holder Yield payable on the
Certificates or with respect to any other payments under
the Operative Agreement (all such payments being
referred to herein as "Exempt Payments" to be made
without deduction, withholding or set off) (and, if any
Financing Party receives a demand for such payment from
any taxing authority or a Withholding is otherwise
required with respect to any Exempt Payment, the
Indemnity Provider shall discharge such demand on behalf
of such Financing Party); provided, however, that the
obligation of the Indemnity Provider under this Section
11.2(e) shall not apply to:
(i) Withholdings on any Exempt Payment to any
Financing Party which is a non-U.S. Person unless
such Financing Party is, on the date hereof (or on
the date it becomes a Financing Party hereunder)
and on the date of any change in the principal
place of business or the lending office of such
Financing Party, entitled to submit a Form 1001
(relating to such Financing Party and entitling it
to a complete exemption from Withholding on such
Exempt Payment) or Form 4224 or is otherwise
subject to exemption from Withholding with respect
to such Exempt Payment (except where the failure of
the exemption results from a change in the
principal place of business of the Lessee; provided
if a failure of exemption for any Financing Party
results from a change in the principal place of
business or lending office of any other Financing
Party, then such other Financing Party shall be
liable for any Withholding or indemnity with
respect thereto), or
(ii) Any U.S. Taxes imposed solely by reason
of the failure by a non-U.S. Person to comply with
applicable certification, information,
documentation or other reporting requirements
concerning the nationality, residence, identity or
connections with the United States of America of
such non-U.S. Person if such compliance is required
by statute or regulation of the United States of
America as a precondition to relief or exemption
from such U.S. Taxes.
For the purposes of this Section 11.2(e), (A) "U.S.
Person" shall mean a citizen, national or resident of
the United States of America, a corporation, partnership
or other entity created or organized in or under any
laws of the United States of America or any State
thereof, or any estate or trust that is subject to
Federal income taxation regardless of the source of its
income, (B) "U.S. Taxes" shall mean any present or
future tax, assessment or other charge or levy imposed
by or on behalf of the United States of America or any
taxing authority thereof or therein, (C) "Form 1001"
shall mean Form 1001 (Ownership, Exemption, or Reduced
Rate Certificate) of the Department of the Treasury of
the United States of America and (D) "Form 4224" shall
mean Form 4224 (Exemption from Withholding of Tax on
Income Effectively Connected with the Conduct of a Trade
or Business in the United States) of the Department of
Treasury of the United States of America (or in relation
to either such Form such successor and related forms as
may from time to time be adopted by the relevant taxing
authorities of the United States of America to document
a claim to which such Form relates). Each of the Forms
referred to in the foregoing clauses (C) and (D) shall
include such successor and related forms as may from
time to time be adopted by the relevant taxing
authorities of the United States of America to document
a claim to which such Form relates.
If a Financing Party or an Affiliate with whom such
Financing Party files a consolidated tax return (or
equivalent) subsequently receives the benefit in any
country of a tax credit or an allowance resulting from
U.S. Taxes with respect to which it has received a
payment of an additional amount under this Section
11.2(e), such Financing Party will pay to the Indemnity
Provider such part of that benefit as in the opinion of
such Financing Party will leave it (after such payment)
in a position no more and no less favorable than it
would have been in if no additional payment had been
required to be paid, provided always that (i) such
Financing Party will be the sole judge of the amount of
any such benefit and of the date on which it is
received, (ii) such Financing Party will have the
absolute discretion as to the order and manner in which
it employs or claims tax credits and allowances
available to it and (iii) such Financing Party will not
be obliged to disclose to the Borrower any information
regarding its tax affairs or tax computations.
Each non-U.S. Person that shall become a Financing
Party after the date hereof shall, upon the
effectiveness of the related transfer or otherwise upon
becoming a Financing Party hereunder, be required to
provide all of the forms and statements referenced above
or other evidences of exemption from Withholdings.
(f) If a written Claim is made against any
Indemnified Person or if any proceeding shall be
commenced against such Indemnified Person (including
without limitation a written notice of such proceeding),
for any Impositions, the provisions in Section 11.1
relating to notification and rights to contest shall
apply; provided, however, that the Indemnity Provider
shall have the right to conduct and control such contest
only if such contest involves a Tax other than a Tax on
net income of the Indemnified Person and can be pursued
independently from any other proceeding involving a Tax
liability of such Indemnified Person.
11.3. Increased Costs, Illegality, etc.
(a) If, due to either (i) the introduction of or
any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or
request hereafter adopted, promulgated or made by any
central bank or other governmental authority (whether or
not having the force of law), there shall be any
increase in the cost to any Financing Party of agreeing
to make or making, funding or maintaining Eurodollar
Loans and Eurodollar Holder Advances, then the Lessee
shall from time to time, upon demand by such Financing
Party (with a copy of such demand to the Agent but
subject to Section 11.6 and to the terms of Section 2.11
of the Credit Agreement and 3.9 of the Trust Agreement,
as the case may be), pay to the Agent for the account of
such Financing Party additional amounts sufficient to
compensate such Financing Party for such increased cost.
A certificate as to the amount of such increased cost,
submitted to the Lessee and the Agent by such Financing
Party, shall be conclusive and binding for all purposes,
absent manifest error.
(b) If any Financing Party determines that
compliance with any law or regulation or any guideline
or request from any central bank or other governmental
authority (whether or not having the force of law, but
in each case promulgated or made after the date hereof)
affects or would affect the amount of capital required
or expected to be maintained by such Financing Party or
any corporation controlling such Financing Party and
that the amount of such capital is increased by or based
upon the existence of such Financing Party's commitment
to make Eurodollar Loans and Eurodollar Holder Advances
and other commitments of this type or upon the Advances,
then, upon demand by such Financing Party (with a copy
of such demand to the Agent but subject to Section 11.6
and to the terms of Section 2.11 of the Credit Agreement
and 3.9 of the Trust Agreement), the Lessee shall pay to
the Agent for the account of such Financing Party, from
time to time as specified by such Financing Party,
additional amounts sufficient to compensate such
Financing Party or such corporation in the light of such
circumstances, to the extent that such Financing Party
reasonably determines such increase in capital to be
allocable to the existence of such Financing Party's
commitment to make such Eurodollar Loans and Eurodollar
Holder Advances. A certificate as to such amounts
submitted to the Credit Parties and the Agent by such
Financing Party shall be conclusive and binding for all
purposes, absent manifest error.
(c) Without limiting the effect of the foregoing,
the Lessees shall, subject to Section 11.6, pay to each
Financing Party on the last day of the Interest Period
therefor so long as such Financing Party is maintaining
reserves against "Eurocurrency liabilities" under
Regulation D an additional amount (determined by such
Financing Party and notified to the Lessees through the
Agent) equal to the product of the following for each
Eurodollar Loan or Eurodollar Holder Advance, as the
case may be, for each day during such Interest Period:
(i) the principal amount of such Eurodollar
Loan or Eurodollar Holder Advance, as the case may
be, outstanding on such day; and
(ii) the remainder of (x) a fraction the
numerator of which is the rate (expressed as a
decimal) at which interest accrues on such
Eurodollar Loan or Eurodollar Holder Advance, as
the case may be, for such Interest Period as
provided in the Credit Agreement or the Trust
Agreement, as the case may be (less the Applicable
Percentage), and the denominator of which is one
(1) minus the effective rate (expressed as a
decimal) at which such reserve requirements are
imposed on such Financing Party on such day minus
(y) such numerator; and
(iii) 1/360.
(d) Without affecting its rights under Sections
11.3(a), 11.3(b) or 11.3(c) or any other provision of
any Operative Agreement, each Financing Party agrees
that if there is any increase in any cost to or
reduction in any amount receivable by such Financing
Party with respect to which the Lessees would be
obligated to compensate such Financing Party pursuant to
Sections 11.3(a) or 11.3(b), such Financing Party shall
use reasonable efforts to select an alternative office
for Advances which would not result in any such increase
in any cost to or reduction in any amount receivable by
such Financing Party; provided, however, that no
Financing Party shall be obligated to select an
alternative office for Advances if such Financing Party
determines that (i) as a result of such selection such
Financing Party would be in violation of any applicable
law, regulation, treaty, or guideline, or would incur
additional costs or expenses or (ii) such selection
would be inadvisable for regulatory reasons or
materially inconsistent with the interests of such
Financing Party.
(e) With reference to the obligations of the
Lessees set forth in Sections 11.3(a) through 11.3(d),
the Lessees shall not have any obligation to pay to any
Financing Party amounts owing under such Sections for
any period which is more than one (1) year prior to the
date upon which the request for payment therefor is
delivered to the Lessees.
(f) Notwithstanding any other provision of this
Agreement, if any Financing Party shall notify the Agent
that the introduction of or any change in or in the
interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Financing
Party to perform its obligations hereunder to make or
maintain Eurodollar Loans or Eurodollar Holder Advances,
as the case may be, then (i) each Eurodollar Loan or
Eurodollar Holder Advance, as the case may be, will
automatically, at the earlier of the end of the Interest
Period for such Eurodollar Loan or Eurodollar Holder
Advance, as the case may be, or the date required by
law, convert into an ABR Loan or an ABR Holder Advance,
as the case may be, and (iii) the obligation of the
Financing Parties to make, convert or continue
Eurodollar Loans or Eurodollar Holder Advances, as the
case may be, shall be suspended until the Agent shall
notify the Lessees that such Financing Party has
determined that the circumstances causing such
suspension no longer exist.
11.4. Funding/Contribution Indemnity.
Subject to Section 11.6 and to the provisions of Section
2.11(a) of the Credit Agreement and 3.9(a) of the Trust
Agreement, as the case may be, the applicable Lessee agrees
to indemnify each Financing Party and to hold each Financing
Party harmless from any loss or reasonable expense which such
Financing Party may sustain or incur as a consequence of (a)
any default by such Lessee in connection with the drawing of
funds for any Advance, (b) any default by such Lessee in
making any prepayment after a notice thereof has been given
in accordance with the provisions of the Operative Agreements
or (c) the making of a voluntary or involuntary payment of
Eurodollar Loans or Eurodollar Holder Advances, as the case
may be, on a day which is not the last day of an Interest
Period with respect thereto. Such indemnification shall be
in an amount equal to the excess, if any, of (x) the amount
of interest or Holder Yield, as the case may be, which would
have accrued on the amount so paid, or not so borrowed,
accepted, converted or continued for the period from the date
of such payment or of such failure to borrow, accept, convert
or continue to the last day of such Interest Period (or, in
the case of a failure to borrow, accept, convert or continue,
the Interest Period that would have commenced on the date of
such failure) in each case at the applicable Eurodollar Rate
plus the Applicable Percentage for such Loan or Holder
Advance, as the case may be, for such Interest Period over
(y) the amount of interest (as determined by such Financing
Party in its reasonable discretion) which would have accrued
to such Financing Party on such amount by (i) (in the case of
the Lenders) reemploying such funds in loans of the same type
and amount during the period from the date of payment or
failure to borrow to the last day of the then applicable
Interest Period (or, in the case of a failure to borrow, the
Interest Period that would have commenced on the date of such
failure) and (ii) (in the case of the Holders) placing such
amount on deposit for a comparable period with leading banks
in the relevant interest rate market. This covenant shall
survive the termination of the Operative Agreements and the
payment of all other amounts payable hereunder.
11.5. EXPRESS INDEMNIFICATION FOR ORDINARY
NEGLIGENCE, STRICT LIABILITY, ETC.
SUBJECT TO SECTION 11.6, WITHOUT LIMITING THE GENERALITY
OF THE INDEMNIFICATION PROVISIONS OF ANY AND ALL OF THE
OPERATIVE AGREEMENTS, EACH PERSON PROVIDING INDEMNIFICATION
OF ANOTHER PERSON UNDER ANY OPERATIVE AGREEMENT HEREBY
FURTHER EXPRESSLY RELEASES EACH BENEFICIARY OF ANY SUCH
INDEMNIFICATION FROM ALL CLAIMS FOR LOSS OR DAMAGE, DESCRIBED
IN ANY OPERATIVE AGREEMENT, CAUSED BY ANY ACT OR OMISSION ON
THE PART OF ANY SUCH BENEFICIARY ATTRIBUTABLE TO THE ORDINARY
NEGLIGENCE (WHETHER SOLE OR CONTRIBUTORY) OR STRICT LIABILITY
OF ANY SUCH BENEFICIARY, AND INDEMNIFIES, EXONERATES AND
HOLDS EACH SUCH BENEFICIARY FREE AND HARMLESS FROM AND
AGAINST ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS, CLAIMS,
LOSSES, COSTS, LIABILITIES, DAMAGES AND EXPENSES (INCLUDING
WITHOUT LIMITATION ATTORNEY'S FEES AND EXPENSES), DESCRIBED
ABOVE, INCURRED BY ANY SUCH BENEFICIARY (IRRESPECTIVE OF
WHETHER ANY SUCH BENEFICIARY IS A PARTY TO THE ACTION FOR
WHICH INDEMNIFICATION UNDER THIS AGREEMENT OR ANY OTHER
OPERATIVE AGREEMENT IS SOUGHT) ATTRIBUTABLE TO THE ORDINARY
NEGLIGENCE (WHETHER SOLE OR CONTRIBUTORY) OR STRICT LIABILITY
OF ANY SUCH BENEFICIARY.
11.6. Indemnity Prior to Completion Date /
Construction Period Termination Date.
Notwithstanding the provisions of Sections 11.1, 11.2,
11.3, 11.4 and 11.5, the Owner Trustee shall be the only
beneficiary of the provisions set forth in Sections 11.1,
11.2, 11.3, 11.4 and 11.5 with respect to any Claim arising
thereunder for the period prior to the earlier to occur of
the applicable Completion Date and the Construction Period
Termination Date related to the applicable Property;
provided, however, such limited rights of indemnification
referenced in this sentence (to the extent relating to third-
party claims) shall be limited to third-party claims caused
by or resulting from the Indemnity Provider's actions or
failures to act while such Construction Period Property is in
the possession or control of the applicable Indemnity
Provider. Notwithstanding the foregoing, to the extent that
the Owner Trustee becomes obligated to any Indemnified Person
pursuant to the next succeeding paragraph of Section 11.6,
the Owner Trustee shall be entitled to further indemnity from
the Indemnity Provider under Sections 11.1, 11.2, 11.3, 11.4
and 11.5, as applicable, with respect to all amounts owing or
paid by it under this Section 11.6.
To the extent the Indemnity Provider is not obligated to
indemnify any Indemnified Person with respect to Claims
arising under Sections 11.1, 11.2, 11.3, 11.4 or 11.5, prior
to the earlier to occur of the applicable Completion Date or
Construction Period Termination Date, the Owner Trustee shall
provide such indemnities in favor of such Indemnified Person
in accordance with the relevant provisions of Sections 11.1,
11.2, 11.3, 11.4 or 11.5 as the case may be. It is
acknowledged and agreed that any amount for which the Owner
Trustee becomes obligated to any Indemnified Person pursuant
hereto shall become a Claim for which the Owner Trustee is
entitled to indemnity from the Indemnity Provider.
THE INDEMNITY OBLIGATIONS UNDERTAKEN BY THE OWNER
TRUSTEE PURSUANT TO THIS SECTION 11.6 ARE IN ALL RESPECTS
SUBJECT TO THE LIMITATIONS ON LIABILITY REFERENCED IN SECTION
12.9.
SECTION 12. MISCELLANEOUS.
12.1. Survival of Agreements.
The representations, warranties, covenants, indemnities
and agreements of the parties provided for in the Operative
Agreements, and the parties' obligations under any and all
thereof, shall survive the execution and delivery of this
Agreement, the transfer of any Property to the Owner Trustee,
the acquisition of any Property (or any of its components),
the construction of any Improvements, the Completion of any
Property, any disposition of any interest of the Owner
Trustee in any Property or any interest of the Holders in the
Trust Estate, the payment of the Notes and any disposition
thereof and shall be and continue in effect notwithstanding
any investigation made by any party and the fact that any
party may waive compliance with any of the other terms,
provisions or conditions of any of the Operative Agreements.
Except as otherwise expressly set forth herein or in other
Operative Agreements, the indemnities of the parties provided
for in the Operative Agreements shall survive the expiration
or termination of any thereof.
12.2. Notices.
All notices required or permitted to be given under any
Operative Agreement shall be in writing. Notices may be
served by certified or registered mail, postage paid with
return receipt requested; by private courier, prepaid; by
telex, facsimile, or other telecommunication device capable
of transmitting or creating a written record; or personally.
Mailed notices shall be deemed delivered five (5) days after
mailing, properly addressed. Couriered notices shall be
deemed delivered when delivered as addressed, or if the
addressee refuses delivery, when presented for delivery
notwithstanding such refusal. Telex or telecommunicated
notices shall be deemed delivered when receipt is either
confirmed by confirming transmission equipment or
acknowledged by the addressee or its office. Personal
delivery shall be effective when accomplished. Unless a
party changes its address by giving notice to the other party
as provided herein, notices shall be delivered to the parties
at the following addresses:
If to any Construction Agent or any Lessee, to such
entity in care of the Guarantor at the address for the
Guarantor set forth herein.
If to the Guarantor, to such entity at the
following address:
Performance Food Group Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇,
Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Owner Trustee, to it at the following
address:
First Security Bank, National Association
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇,
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Holders, to each such Holder at the
address set forth for such Holder on Schedule I of the
Trust Agreement.
If to the Agent, to it at the following address:
First Union National Bank
c/o First Union Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Lender, to it at the address set forth
for such Lender in Schedule 2.1 of the Credit Agreement.
Each Lessee and each Construction Agent hereby
agrees that the Guarantor shall be appointed as its
exclusive agent to receive all notices delivered
pursuant hereto on its behalf, and the Guarantor hereby
accepts such appointment as agent and agrees to accept
such delivery on behalf of each Lessee and each
Construction Agent. Except as limited by the
immediately preceding sentence, from time to time any
party may designate additional parties and/or another
address for notice purposes by notice to each of the
other parties hereto. Each notice hereunder shall be
effective upon receipt or refusal thereof.
12.3. Counterparts.
This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts
shall together constitute but one (1) and the same
instrument.
12.4. Terminations, Amendments, Waivers, Etc.;
Unanimous Vote Matters.
Each Basic Document may be terminated, amended,
supplemented, waived or modified only by an instrument in
writing signed by, subject to Article VIII of the Trust
Agreement regarding termination of the Trust Agreement, the
Majority Secured Parties and each Credit Party (to the extent
such Credit Party is a party to such Basic Document);
provided, to the extent no Default or Event of Default shall
have occurred and be continuing, the Majority Secured Parties
shall not amend, supplement, waive or modify any provision of
any Basic Document in such a manner as to adversely affect
the rights or obligations of any Credit Party without the
prior written consent (not to be unreasonably withheld or
delayed) of such Credit Party. Each Operative Agreement
which is not a Basic Document may be terminated, amended,
supplemented, waived or modified only by an instrument in
writing signed by the parties thereto and (without the
consent of any other Financing Party) the Agent. In
addition, the Unanimous Vote Matters shall require the
consent of each Lender and each Holder affected by such
matter.
Notwithstanding the foregoing, no such termination,
amendment, supplement, waiver or modification shall, without
the consent of the Agent and, to the extent affected thereby,
each Lender and each Holder (collectively, the "Unanimous
Vote Matters") (i) reduce the Lender Commitments and/or the
Holder Commitments except as otherwise provided in Section
2.5 of the Credit Agreement and Section 3.1(e) of the Trust
Agreement, extend the scheduled date of maturity of any Note,
extend the scheduled Expiration Date, extend any payment date
of any Note or Certificate, reduce the stated rate of
interest payable on any Note, reduce the stated Holder Yield
payable on any Certificate (other than as a result of waiving
the applicability of any post-default increase in interest
rates or Holder Yields), modify the priority of any Lien in
favor of the Agent under any Security Document, subordinate
any obligation owed to such Lender or Holder, reduce any
Lender Facility Fees or any Holder Facility Fees payable to
such Lender or Holder (as the case may be) under the
Participation Agreement, extend the scheduled date of payment
of any Lender Facility Fees or any Holder Facility Fees
payable to such Lender or Holder (as the case may be) or
extend the expiration date of such Lender's Commitment or the
Holder Commitment of such Holder, or (ii) terminate, amend,
supplement, waive or modify any provision of this Section
12.4 or reduce the percentages specified in the definitions
of Majority Lenders, Majority Holders or Majority Secured
Parties, or consent to the assignment or transfer by the
Owner Trustee of any of its rights and obligations under any
Credit Document or release a material portion of the
Collateral (except in accordance with Section 8.8) or release
any Credit Party from its obligations under any Operative
Agreement or otherwise alter any payment obligations of any
Credit Party to the Lessor or any Financing Party under the
Operative Agreements, or (iii) terminate, amend, supplement,
waive or modify any provision of Section 7 of the Credit
Agreement, or (iv) permit Advances for Work in excess of the
Construction Budget, or (v) eliminate the automatic option
under Section 5.3(b) of the Agency Agreement requiring that
the Construction Agent pay certain liquidated damages in
exchange for the conveyance of a Property to the Construction
Agent. Any such termination, amendment, supplement, waiver
or modification shall apply equally to each of the Lenders
and the Holders and shall be binding upon all the parties to
this Agreement. In the case of any waiver, each party to
this Agreement shall be restored to its former position and
rights under the Operative Agreements, and any Default or
Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent
or other Default or Event of Default, or impair any right
consequent thereon. The parties to this Agreement agree that
any increase in the Lender Commitment of any Lender and/or
any increase in the Holder Commitment of any Holder shall be
a matter decided by the Majority Secured Parties and not as a
Unanimous Vote Matter.
If at a time when the conditions precedent set forth in
the Operative Agreements to any Loan are, in the opinion of
the Majority Lenders, satisfied, any Lender shall fail to
fulfill its obligations to make such Loan (any such Lender, a
"Defaulting Lender") then, for so long as such failure shall
continue, the Defaulting Lender shall (unless the Lessee and
the Majority Lenders, determined as if the Defaulting Lender
were not a "Lender", shall otherwise consent in writing) be
deemed for all purposes relating to terminations, amendments,
supplements, waivers or modifications under the Operative
Agreements to have no Loans, shall not be treated as a
"Lender" when performing the computation of Majority Lenders
or Majority Secured Parties, and shall have no rights under
this Section 12.4; provided that any action taken pursuant to
the second paragraph of this Section 12.4 shall not be
effective as against the Defaulting Lender.
If at a time when the conditions precedent set forth in
the Operative Agreements to any Holder Advance are, in the
opinion of the Majority Holders, satisfied, any Holder shall
fail to fulfill its obligations to make such Holder Advance
(any such Holder, a "Defaulting Holder") then, for so long as
such failure shall continue, the Defaulting Holder shall
(unless the Lessee and the Majority Holders, determined as if
the Defaulting Holder were not a "Holder", shall otherwise
consent in writing) be deemed for all purposes relating to
terminations, amendments, supplements, waivers or
modifications under the Operative Agreements to have no
Holder Advances, shall not be treated as a "Holder" when
performing the computation of Majority Holders or Majority
Secured Parties, and shall have no rights under this Section
12.4; provided that any action taken pursuant to the second
paragraph of this Section 12.4 shall not be effective as
against the Defaulting Holder.
12.5. Headings, etc.
The Table of Contents and headings of the various
Articles and Sections of this Agreement are for convenience
of reference only and shall not modify, define, expand or
limit any of the terms or provisions hereof.
12.6. Parties in Interest.
Except as expressly provided herein, none of the
provisions of this Agreement are intended for the benefit of
any Person except the parties hereto.
12.7. GOVERNING LAW; SUBMISSION TO
JURISDICTION; WAIVER OF JURY TRIAL; VENUE;
ARBITRATION.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NORTH CAROLINA. Any legal
action or proceeding with respect to this Agreement or
any other Operative Agreement may be brought in the
courts of the State of North Carolina in Mecklenburg
County or of the United States for the Western District
of North Carolina, and, by execution and delivery of
this Agreement, each of the parties to this Agreement
hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the
nonexclusive jurisdiction of such courts. Each of the
parties to this Agreement further irrevocably consents
to the service of process out of any of the
aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or
certified mail, postage prepaid, to it at the address
set out for notices pursuant to Section 12.2, such
service to become effective three (3) days after such
mailing. Nothing herein shall affect the right of any
party to serve process in any other manner permitted by
Law or to commence legal proceedings or to otherwise
proceed against any party in any other jurisdiction.
(b) EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY, TO THE FULLEST EXTENT ALLOWED BY
APPLICABLE LAW, WAIVES TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO ANY DISPUTE OR THIS AGREEMENT,
ANY OTHER OPERATIVE AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.
(c) Each of the parties to this Agreement hereby
irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in
connection with this Agreement or any other Operative
Agreement brought in the courts referred to in
subsection (a) above and hereby further irrevocably
waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum.
(d) Notwithstanding the provisions of Section
12.7(a) or of any other Operative Agreement to the contrary,
upon demand of any party to this Agreement and/or any other
Operative Agreement, upon demand of any party hereto, whether
made before or after institution of any judicial proceeding,
any claim or controversy arising out of, or relating to the
Operative Agreements between or among the parties hereto (a
"Dispute") shall be resolved by binding arbitration conducted
under and governed by the Commercial Financial Disputes
Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and the Federal
Arbitration Act. Disputes may include without limitation
tort claims, counterclaims, disputes as to whether a matter
is subject to arbitration, claims brought as class actions,
or claims arising from documents executed in the future. A
judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding the foregoing, this
arbitration provision does not apply to disputes under or
related to swap agreements.
All arbitration hearings shall be conducted in the city
in which the principal office of the Agent (referenced
pursuant to Section 12.2 of this Agreement) is located. A
hearing shall begin within ninety (90) days of demand for
arbitration and all hearings shall be concluded within one
hundred and twenty (120) days of demand for arbitration.
These time limitations may not be extended unless a party
shows cause for extension and then for no more than a total
of sixty (60) days. The expedited procedures set forth in
Rule 51 et seq. of the Arbitration Rules shall be applicable
to claims of less than $1,000,000. Arbitrators shall be
licensed attorneys selected from the Commercial Financial
Dispute Arbitration Panel of the AAA. The parties do not
waive applicable federal or state substantive law except as
provided herein.
Notwithstanding the preceding binding arbitration
provisions, the parties agree to preserve, without
diminution, certain remedies that any party may exercise
before or after an arbitration proceeding is brought. The
parties shall have the right to proceed in any court of
proper jurisdiction or by self-help to exercise or prosecute
the following remedies, as applicable: (i) all rights to
foreclose against any real or personal property or other
security by exercising a power of sale or under applicable
law by judicial foreclosure including a proceeding to confirm
the sale; (ii) all rights of self-help including peaceful
occupation of real property and collection of rents, set-off
and peaceful possession of personal property; (iii) obtaining
provisional or ancillary remedies including injunctive
relief, sequestration, garnishment, attachment, appointment
of receiver and filing an involuntary bankruptcy proceedings;
and (iv) when applicable, a judgment by confession of
judgment. Any claim or controversy with regard to any
party's entitlement to such remedies is a Dispute.
Each party to this Agreement agrees that it shall not
have a remedy of punitive or exemplary damages against any
other party in any Dispute and hereby waive any right or
claim to punitive or exemplary damages they have now or which
may arise in the future in connection with any Dispute,
whether the Dispute is resolved by arbitration or judicially.
12.8. Severability.
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other
jurisdiction.
12.9. Liability Limited.
(a) The Lenders, the Agent, the Credit Parties,
the Owner Trustee and the Holders each acknowledge and
agree that the Owner Trustee is (except as otherwise
expressly provided herein or therein) entering into this
Agreement and the other Operative Agreements to which it
is a party (other than the Trust Agreement and to the
extent otherwise provided in Section 6.1 of this
Agreement), solely in its capacity as trustee under the
Trust Agreement and not in its individual capacity and
that the Trust Company shall not be liable or
accountable under any circumstances whatsoever in its
individual capacity for or on account of any statements,
representations, warranties, covenants or obligations
stated to be those of the Owner Trustee, except for its
own gross negligence or willful misconduct and as
otherwise expressly provided herein or in the other
Operative Agreements.
(b) Anything to the contrary contained in this
Agreement, the Credit Agreement, the Notes or in any
other Operative Agreement notwithstanding, no Exculpated
Person shall be personally liable in any respect for any
liability or obligation arising hereunder or in any
other Operative Agreement including without limitation
the payment of the principal of, or interest on, the
Notes, or for monetary damages for the breach of
performance of any of the covenants contained in the
Credit Agreement, the Notes, this Agreement, the
Security Agreement or any of the other Operative
Agreements. The Lenders, the Holders and the Agent
agree that, in the event any remedies under any
Operative Agreement are pursued, neither the Lenders,
the Holders nor the Agent shall have any recourse
against any Exculpated Person, for any deficiency, loss
or Claim for monetary damages or otherwise resulting
therefrom and recourse shall be had solely and
exclusively against the Trust Estate (excluding Excepted
Payments) and the Credit Parties (with respect to the
Credit Parties' obligations under the Operative
Agreements); but nothing contained herein shall be taken
to prevent recourse against or the enforcement of
remedies against the Trust Estate (excluding Excepted
Payments) in respect of any and all liabilities,
obligations and undertakings contained herein and/or in
any other Operative Agreement. Notwithstanding the
provisions of this Section, nothing in any Operative
Agreement shall: (i) constitute a waiver, release or
discharge of any indebtedness or obligation evidenced by
the Notes and/or the Certificates arising under any
Operative Agreement or secured by any Operative
Agreement, but the same shall continue until paid or
discharged; (ii) relieve any Exculpated Person from
liability and responsibility for (but only to the extent
of the damages arising by reason of): active waste
knowingly committed by any Exculpated Person with
respect to any Property, any fraud, gross negligence or
willful misconduct on the part of any Exculpated Person;
(iii) relieve any Exculpated Person from liability and
responsibility for (but only to the extent of the moneys
misappropriated, misapplied or not turned over) (A)
except for Excepted Payments, misappropriation or
misapplication by the Lessor (i.e., application in a
manner contrary to any of the Operative Agreements) of
any insurance proceeds or condemnation award paid or
delivered to the Lessor by any Person other than the
Agent, (B) except for Excepted Payments, any deposits or
any escrows or amounts owed by any Construction Agent
under the Agency Agreement held by the Lessor or (C)
except for Excepted Payments, any rent or other income
received by the Lessor from any Credit Party that is not
turned over to the Agent; or (iv) affect or in any way
limit the Agent's rights and remedies under any
Operative Agreement with respect to the Rents and rights
and powers of the Agent under the Operative Agreements
or to obtain a judgment against any Lessee's interest in
any Property or the Agent's rights and powers to obtain
a judgment against the Lessor or any Credit Party
(provided, that no deficiency judgment or other money
judgment shall be enforced against any Exculpated Person
except to the extent of the Lessor's interest in the
Trust Estate (excluding Excepted Payments) or to the
extent the Lessor may be liable as otherwise
contemplated in clauses (ii) and (iii) of this Section
12.9(b)).
12.10. Rights of the Credit Parties.
If at any time all obligations (i) of the Owner Trustee
under the Credit Agreement, the Security Documents and the
other Operative Agreements and (ii) of the Credit Parties
under the Operative Agreements have in each case been
satisfied or discharged in full, then the Credit Parties
shall be entitled to (a) terminate the Lease and guaranty
obligations under Section 6B and (b) receive all amounts then
held under the Operative Agreements and all proceeds with
respect to any of the Properties. Upon the termination of
the Lease and Section 6B pursuant to the foregoing clause
(a), the Lessor shall transfer to the respective Lessee that
is a party to a Lease Supplement respecting any particular
Property all of Lessor's right, title and interest free and
clear of the Lien of the Lease, the Lien of the Security
Documents and all Lessor Liens in and to any Properties then
subject to the Lease and any amounts or proceeds referred to
in the foregoing clause (b) shall be paid over to such
Lessee.
12.11. Further Assurances.
The parties hereto shall promptly cause to be taken,
executed, acknowledged or delivered, at the sole expense of
the Credit Parties, all such further acts, conveyances,
documents and assurances as the other parties may from time
to time reasonably request in order to carry out and
effectuate the intent and purposes of this Participation
Agreement, the other Operative Agreements and the
transactions contemplated hereby and thereby (including
without limitation the preparation, execution and filing of
any and all Uniform Commercial Code financing statements,
filings of Mortgage Instruments and other filings or
registrations which the parties hereto may from time to time
request to be filed or effected). Each Lessee, at its own
expense and without need of any prior request from any other
party, shall take such action as may be necessary (including
without limitation any action specified in the preceding
sentence), or (if the Owner Trustee shall so request) as so
requested, in order to maintain and protect all security
interests provided for hereunder or under any other Operative
Agreement. In addition, in connection with the sale or other
disposition of any Property or any portion thereof, each
Lessee agrees to execute such instruments of conveyance as
may be reasonably required in connection therewith.
12.12. Calculations under Operative Agreements.
The parties hereto agree that all calculations and
numerical determinations to be made under the Operative
Agreements by the Owner Trustee shall be made by the Agent
and that such calculations and determinations shall be
conclusive and binding on the parties hereto in the absence
of manifest error.
12.13. Confidentiality.
Each Financing Party severally agrees to use reasonable
efforts to keep confidential all non-public information
pertaining to any Credit Party or any of its Subsidiaries
which is provided to it by such Credit Party or any of its
Subsidiaries and which an officer of such Credit Party or any
of its Subsidiaries has requested in writing be kept
confidential, and shall not intentionally disclose such
information to any Person except:
(a) to the extent such information is public when
received by such Person or becomes public thereafter due
to the act or omission of any party other than such
Person;
(b) to the extent such information is
independently obtained from a source other than any
Credit Party or any of its Subsidiaries and such
information from such source is not, to such Person's
knowledge, subject to an obligation of confidentiality
or, if such information is subject to an obligation of
confidentiality, that disclosure of such information is
permitted;
(c) to counsel, auditors or accountants retained
by any such Person or any Affiliates of any such Person
(if such Affiliates are permitted to receive such
information pursuant to clause (f) or (g) below),
provided they agree to keep such information
confidential as if such Person or Affiliate were party
to this Agreement and to financial institution
regulators, including examiners of any Financing Party
or any Affiliate thereof in the course of examinations
of such Persons;
(d) in connection with any litigation or the
enforcement or preservation of the rights of any
Financing Party under the Operative Agreements;
(e) to the extent required by any applicable
statute, rule or regulation or court order (including
without limitation, by way of subpoena) or pursuant to
the request of any regulatory or Governmental Authority
having jurisdiction over any such Person; provided,
however, that such Person shall endeavor (if not
otherwise prohibited by Law) to notify the applicable
Credit Party prior to any disclosure made pursuant to
this clause (e), except that no such Person shall be
subject to any liability whatsoever for any failure to
so notify the Lessee;
(f) any Financing Party may disclose such
information to another Financing Party or to any
Affiliate of a Financing Party that is a direct or
indirect owner of any Financing Party;
(g) any Financing Party may disclose such
information to an Affiliate of any Financing Party to
the extent required in connection with the transactions
contemplated hereby or to the extent such Affiliate is
involved in, or provides advice or assistance to such
Person with respect to, such transactions (provided, in
each case that such Affiliate has agreed in writing to
maintain confidentiality as if it were such Financing
Party (as the case may be)); or
(h) to the extent disclosure to any other
financial institution or other Person is appropriate in
connection with any proposed or actual (i) assignment or
grant of a participation by any of the Lenders of
interests in the Credit Agreement or any Note to such
other financial institution (who will in turn be
required by the Agent to agree in writing to maintain
confidentiality as if it were a Lender originally party
to this Agreement) or (ii) assignment by any Holder of
interests in the Trust Agreement to another Person (who
will in turn be required by the transferring Holder to
agree in writing to maintain confidentiality as if it
were a Holder originally party to this Agreement).
Subject to the foregoing terms of Sections 12.13(a)-
12.13(h), under the terms of any one or more of which
circumstances disclosure shall be permitted, each Financing
Party severally agrees to use reasonable efforts to keep
confidential all non-public information pertaining to the
financing structure described in the unrecorded Operative
Agreements.
12.14. Financial Reporting/Tax Characterization.
The Credit Parties agree to obtain advice from their own
accountants and tax counsel regarding the financial reporting
treatment and the tax characterization of the transactions
described in the Operative Agreements. The Credit Parties
further agree that they shall not rely upon any statement of
any Financing Party or any of their respective Affiliates
and/or Subsidiaries regarding any such financial reporting
treatment and/or tax characterization.
12.15. Set-off.
In addition to any rights now or hereafter granted under
applicable Law and not by way of limitation of any such
rights, upon and after the occurrence of any Event of Default
and during the continuance thereof, the Lenders, the Holders,
their respective Affiliates and any assignee or participant
of a Lender or a Holder in accordance with the applicable
provisions of the Operative Agreements are hereby authorized
by the Credit Parties at any time or from time to time,
without notice to the Credit Parties or to any other Person,
any such notice being hereby expressly waived, to set-off and
to appropriate and to apply any and all deposits (general or
special, time or demand, including without limitation
indebtedness evidenced by certificates of deposit, whether
matured or unmatured) and any other indebtedness at any time
held or owing by the Lenders, the Holders, their respective
Affiliates or any assignee or participant of a Lender or a
Holder in accordance with the applicable provisions of the
Operative Agreements to or for the credit or the account of
such Credit Party against and on account of the obligations
of such Credit Party under the Operative Agreements
irrespective of whether or not (a) the Lenders or the Holders
shall have made any demand under any Operative Agreement or
(b) the Agent shall have declared any or all of the
obligations of such Credit Party under the Operative
Agreements to be due and payable and although such
obligations shall be contingent or unmatured.
Notwithstanding the foregoing, neither the Agent nor any
other Financing Party shall exercise, or attempt to exercise,
any right of setoff, banker's lien, or the like, against any
deposit account or property of any Credit Party held by the
Agent or any other Financing Party, without the prior written
consent of the Majority Secured Parties, and any Financing
Party violating this provision shall indemnify the Agent and
the other Financing Parties from any and all costs, expenses,
liabilities and damages resulting therefrom. The contractual
restriction on the exercise of setoff rights provided in the
foregoing sentence is solely for the benefit of the Agent and
the Financing Parties and may not be enforced by any Credit
Party.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above
written.
CONSTRUCTION AGENT
AND LESSEE: PERFORMANCE FOOD GROUP COMPANY,
as the Construction Agent and
as the Lessee
By:
Name:
Title:
[signature pages continued]
GUARANTOR: PERFORMANCE FOOD GROUP COMPANY,
as the Guarantor
By:
Name:
Title:
[signature pages continued]
OWNER TRUSTEE
AND LESSOR: FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually,
except as expressly stated
herein, but solely as the Owner
Trustee under the PFG Real
Estate Trust 2000-1
By:
Name:
Title:
[signature pages continued]
AGENT AND LENDERS: FIRST UNION NATIONAL BANK, as a
Lender and as the Agent
By:
Name:
Title:
[signature pages continued]
BANK ONE, NA, as a Lender
(Main Office Chicago)
By:
Name:
Title:
[signature pages continued]
SUNTRUST BANK, as a Lender
By:
Name:
Title:
[signature pages continued]
HOLDERS: FIRST UNION NATIONAL BANK, as a
Holder
By:
Name:
Title:
[signature pages continued]
SUNTRUST BANK, as a Holder
By:
Name:
Title:
[signature pages end]
SCHEDULE 5.3(n)(ii)
LESSEE JOINDER
(Pursuant to Section 5.3(n)(ii) of the Participation
Agreement)
THIS LESSEE JOINDER (as amended, modified, supplemented,
restated and/or replaced from time to time, the "Agreement"),
dated as of _____________, ______, is by and between
___________________, a ___________ (the "Company"), and FIRST
UNION NATIONAL BANK, as the Agent for the Lenders and
respecting the Security Documents, as the Agent for the
Lender and the Holders, to the extent of their interests (the
"Agent"). Capitalized terms not otherwise defined herein
shall have the meanings set forth therefor in the
Participation Agreement dated as of June 9, 2000 (as amended,
modified, supplemented, restated and/or replaced from time to
time, the "Participation Agreement") among the various
parties thereto from time to time, as the Lessees and the
Construction Agents, Performance Food Group Company, as
Guarantor, First Security Bank, National Association, as the
Owner Trustee under the PFG Realty Trust 2000-1, the various
banks and other lending institutions which are parties
thereto from time to time, as the Lenders, the various banks
and other lending institutions which are parties thereto from
time to time, as the Holders, and the Agent.
The Company is an Eligible Lessee and desires to act as
the Lessee and as the Construction Agent with respect to one
or more Properties, as more specifically identified in one or
more Lease Supplements relating to such Property or
Properties.
Accordingly, the Company hereby agrees as follows with
the Agent:
1. The Company hereby acknowledges, agrees and
confirms that, by its execution of this Agreement, the
Company will be deemed to be a party to the Participation
Agreement, the Agency Agreement, the Lease, the Security
Agreement and such other of the Operative Agreements as are
necessary or desirable to accomplish the purposes of this
Agreement and each of the other Operative Agreements to which
any Credit Party is intended to be a party. The Company
further acknowledges, agrees and confirms that it shall have
all of the obligations of the Lessee and the Construction
Agent under such Operative Agreements with respect to each
Property subject to a Lease Supplement in which the Company
is identified as Lessee as if the Company had executed such
Operative Agreements. The Company hereby ratifies, as of the
date hereof, and agrees to be bound by, all of the terms,
provisions and conditions applicable to a Lessee or a
Construction Agent contained in the Operative Agreements.
2. THE COMPANY HEREBY EXPRESSLY ACKNOWLEDGES AND
AGREES TO THE PROVISIONS OF SECTION 12.7 OF THE PARTICIPATION
AGREEMENT, INCLUDING WITHOUT LIMITATION THOSE PROVISIONS
REGARDING GOVERNING LAW, SUBMISSION TO JURISDICTION, WAIVER
OF JURY TRIAL, VENUE AND ARBITRATION. THIS PROVISION HAS
BEEN SPECIFICALLY REVIEWED BY THE COMPANY.
3. The chief executive office and principal place of
business of the Company and the office where all records
regarding such Property or Properties are located at the
location(s) set forth on Annex 1 attached hereto.
4. All notices and other communications to be
delivered to the Company shall be directed to the Company at
its address set forth in Section 12.2 of the Participation
Agreement or such other address as may be specified, in
accordance with the terms of the Participation Agreement, by
the Company from time to time.
5. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original but
all of which when taken together shall constitute one
contract.
6. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NORTH CAROLINA.
IN WITNESS WHEREOF, the Company has caused this
Agreement to be duly executed by its authorized officers, and
the Agent has caused the same to be accepted by its
authorized officer, as of the day and year first above
written.
[COMPANY]
By:
Name:
Title:
Acknowledged and accepted:
FIRST UNION NATIONAL BANK,
as the Agent
By:
Name:
Title:
Annex 1
[Chief Executive Office and
Principal Place of Business of the Company
and Office where All Records Regarding
Properties are kept]
Schedule 5.11
[Description of Elizabeth, New Jersey Real Property]
That certain 12-acre parcel of real property located in
Union County, New Jersey at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, and currently owned by the Port Authority of New York
and New Jersey.
EXHIBIT A
REQUISITION FORM
(Pursuant to Sections 4.2, 5.2, 5.3 and 5.4 of the
Participation Agreement)
PERFORMANCE FOOD GROUP COMPANY, a Tennessee corporation
(the "Company") hereby certifies as true and correct and
delivers the following Requisition to FIRST UNION NATIONAL
BANK, as the agent for the Lenders (hereinafter defined) and
respecting the Security Documents, as the agent for the
Lenders and the Holders (hereinafter defined), to the extent
of their interests (the "Agent"):
Reference is made herein to that certain Participation
Agreement dated as of June 9, 2000 (as amended, modified,
extended, supplemented, restated and/or replaced from time to
time, the "Participation Agreement") among the various
parties thereto from time to time, as the Lessees and as the
Construction Agents, the Company, as the Guarantor, First
Security Bank, National Association, as the Owner Trustee,
the various banks and other lending institutions which are
parties thereto from time to time, as holders (the
"Holders"), the various banks and other lending institutions
which are parties thereto from time to time, as lenders (the
"Lenders"), and the Agent. Capitalized terms used herein but
not otherwise defined herein shall have the meanings set
forth therefor in the Participation Agreement.
Check one:
____ INITIAL CLOSING DATE: _________________
(three (3) Business Days prior notice required for
Advance)
____ PROPERTY CLOSING DATE:_________________
(three (3) Business Days prior notice required for
Advance)
____ CONSTRUCTION ADVANCE
DATE:_____________
(three (3) Business Days prior
notice required for Advance)
1. Transaction Expenses and other fees, expenses and
disbursements under Sections 7.1(a) or 7.1(b) of the
Participation Agreement and any and all other amounts
contemplated to be financed under the Participation
Agreement including without limitation any Work,
broker's fees, taxes, recording fees and the like (with
supporting invoices or closing statement attached):
Party to Whom Amount Owed
Amount is Owed (in U.S. Dollars)
______________ ______________
______________ ______________
______________ ______________
______________ ______________
______________ ______________
2. Description of Land (which shall be a legal description
of the Land in connection with an Advance to pay
Property Acquisition Costs): See attached Schedule 1
3. Description of Improvements: See attached Schedule 2
4. Description of Equipment: See attached Schedule 3
5. Description of Work: See attached Schedule 4
6. Aggregate Loans and Holder Advances requested since the
Initial Closing Date with respect to each Property for
which Advances are requested under this Requisition
(listed on a Property by Property basis), including
without limitation all amounts requested under this
Requisition: [identify on a Property by Property basis]
$______________ [Property]
In connection with this Requisition, the Company hereby
requests that the Lenders make Loans to the Lessor in the
amount of $______________ and that the Holders make Holder
Advances to the Lessor in the amount of $________________.
The Company hereby certifies (i) that the foregoing amounts
requested do not exceed the total aggregate of the Available
Commitments plus the Available Holder Commitments and (ii)
each of the provisions of the Participation Agreement
applicable to the Loans and Holder Advances requested
hereunder have been complied with as of the date of this
Requisition.
The Company requests the Loans be allocated as follows:
$______________ ABR Loans
$______________ Eurodollar Loans
The Company requests the Holder Advances be allocated as
follows:
$______________ ABR Holder Advances
$______________ Eurodollar Holder Advances
7. Each and every representation and warranty of the
Company contained in the Operative Agreements to which
it is a party is true and correct on and as of the date
hereof.
8. No Default or Event of Default has occurred and is
continuing under any Operative Agreement.
9. Each Operative Agreement to which the Company is a party
is in full force and effect with respect to it.
10. The Company has duly performed and complied with all
covenants, agreements and conditions contained in the
Participation Agreement or in any Operative Agreement
required to be performed or complied with by it on or
prior to the date hereof.
The Company has caused this Requisition to the executed
by its duly authorized officer as of this _____ day of
__________, ______.
PERFORMANCE GOOD GROUP COMPANY
By:
Name:
Title:
Schedule 1
Description of Land
(Legal Description and Street Address)
Schedule 2
Description of Improvements
Schedule 3
Description of Equipment
General Description Make Model Serial Number
Schedule 4
Work
Work Performed for which the Advance is requested:
EXHIBIT B
[CONFORM TO NEGOTIATED OPINION]
[Outside Counsel Opinion for the Lessee]
(Pursuant to Section 5.3(j) of the
Participation Agreement)
____________, ______
TO THOSE ON THE ATTACHED DISTRIBUTION LIST
Re: Synthetic Lease Financing Provided in favor of
Performance Food Group Company
Dear Sirs:
We have acted as special counsel to Performance Food Group
Company, a Tennessee corporation (the "Guarantor") and the
various parties to the Participation Agreement (hereinafter
defined) from time to time, as the construction agents and as
the lessees (individually, a "Lessee" and collectively, the
"Lessees"; individually, each Lessee and the Guarantor may be
referred to herein as a "Credit Party" or collectively, as
the "Credit Parties") in connection with certain transactions
contemplated by the Participation Agreement dated as of June
9, 2000 (the "Participation Agreement"), among the Lessees,
the Guarantor, First Security Bank, National Association, as
the Owner Trustee (the "Owner Trustee"), the various banks
and other lending institutions which are parties thereto from
time to time, as holders (the "Holders"), the various banks
and other lending institutions which are parties thereto from
time to time, as lenders (the "Lenders") and First Union
National Bank, as the agent for the Lenders and respecting
the Security Documents, as the agent for the Lenders and the
Holders, to the extent of their interests (the "Agent").
This opinion is delivered pursuant to Section 5.3(j) of the
Participation Agreement. All capitalized terms used herein,
and not otherwise defined herein, shall have the meanings
assigned thereto in Appendix A to the Participation
Agreement.
In connection with the foregoing, we have examined originals,
or copies certified to our satisfaction, of [identify the
applicable Operative Agreements, including each Mortgage
Instrument, related UCC fixture filings, Additional UCCs
(hereinafter defined), Deeds and Memoranda of Lease] and such
other corporate documents and records of the Credit Parties,
certificates of public officials and representatives of the
Credit Parties as to certain factual matters, and such other
instruments and documents which we have deemed necessary or
advisable to examine for the purpose of this opinion. With
respect to such examination, we have assumed (i) the
statements of fact made in all such certificates, documents
and instruments are true, accurate and complete; (ii) the due
authorization, execution and delivery of the Operative
Agreements by the parties thereto; (iii) the genuineness of
all signatures, the authenticity and completeness of all
documents, certificates, instruments, records and corporate
records submitted to us as originals and the conformity to
the original instruments of all documents submitted to us as
copies, and the authenticity and completeness of the
originals of such copies; (iv) that all parties have all
requisite corporate power and authority to execute, deliver
and perform the Operative Agreements; and (v) except as to
the Credit Parties, the enforceability of the Mortgage
Instrument, the Memorandum of Lease and the UCC financing
statements against all parties thereto.
Based on the foregoing, and having due regard for such legal
considerations as we deem relevant, and subject to the
limitations and assumptions set forth herein, including
without limitation the matters set forth in the last two (2)
paragraphs hereof, we are of the opinion that:
(a) The Mortgage Instrument and Memorandum of Lease are
enforceable in accordance with their respective terms, except
as limited by laws generally affecting the enforcement of
creditors' rights, which laws will not materially prevent the
realization of the benefits intended by such documents.
(b) Each form of Mortgage Instrument and UCC fixture
filing relating thereto, attached hereto as Schedules 1 and
2, respectively, is in proper form for filing and recording
with the offices of [identify the recording offices of the
respective county clerks where the Properties are to be
located]. Upon filing of each Mortgage Instrument and UCC
fixture filing in [identify the recording offices of the
respective county clerks where the Properties are to be
located], the Agent will have a valid, perfected lien and
security interest in that portion of the Collateral described
in such Mortgage Instrument or UCC fixture filing to the
extent such Collateral is comprised of real property and/or
fixtures.
(c) The forms of UCC financing statements relating to
the Security Documents, attached hereto as Schedule 3 (the
"Additional UCCs"), are in proper form for filing and
recording with the offices of [identify (i) the recording
offices of the respective county clerks where the Properties
are to be located and (ii) the Secretary of State where the
Properties are to be located]. Upon filing of the Additional
UCCs in [identify (i) the recording offices of the respective
county clerks where the Properties are to be located and (ii)
the Secretary of State where the Properties are to be
located], the Agent will have a valid, perfected lien and
security interest in that portion of the Collateral which can
be perfected by filing UCC-1 financing statements under
Article 9 of the UCC.
(d) Each form of Deed and Memorandum of Lease is in
appropriate form for filing and recording with the [identify
the recording offices of the respective county clerks for the
counties where the Properties are to be located].
(e) Each Memorandum of Lease, when filed and recorded
with the [identify the recording offices of the respective
county clerks for the counties where the Properties are to be
located], will have been filed and recorded in all public
offices in the State of [__________] in which filing or
recording is necessary to provide constructive notice of the
Lease to third Persons and to establish of record the
interest of the Lessor thereunder as to the Properties
described in each such Memorandum of Lease.
(f) Title to the Properties located in the State of
[___________] may be held in the name of the Owner Trustee as
follows: First Security Bank, National Association, not
individually, but solely as the Owner Trustee under the PFG
Real Estate Trust 2000-1.
(g) The execution and delivery by First Security Bank,
National Association, individually or as the Owner Trustee,
as the case may be, of the Operative Agreements to which it
is a party and compliance by First Security Bank, National
Association, individually or as the Owner Trustee, with all
of the provisions thereof do not and will not contravene any
law, rule or regulation of [identify the state].
(h) By reason of their participation in the transaction
contemplated under the Operative Agreements, none of the
Agent, the Lenders, the Holders or the Owner Trustee has to
(a) qualify as a foreign corporation in [identify the state],
(b) file any application or any designation for service of
process in [identify the state] or (c) pay any franchise,
income, sales, excise, stamp or other taxes of any kind to
[identify the state].
(i) The provisions in the Operative Agreements
concerning Rent, interest, fees, prepayment premiums and
other similar charges do not violate the usury laws or other
similar laws regulating the use or forbearance of money of
[identify the state].
(j) If the transactions contemplated by the Operative
Agreements are characterized as a lease transaction by a
court of competent jurisdiction, the Lease and the applicable
Lease Supplement shall demise to the Lessee a valid leasehold
interest in the Properties described in such Lease
Supplement.
(k) If the transactions contemplated by the Operative
Agreements are characterized as a loan transaction by a court
of competent jurisdiction, the combination of the Mortgage
Instruments, the Deeds, the Lease and the applicable Lease
Supplements (and the other Operative Agreements incorporated
therein by reference) are sufficient to create a valid,
perfected lien or security interest in the Properties therein
described, enforceable as a mortgage in [identify the state].
This opinion is limited to the matters stated herein and no
opinion is implied or may be inferred beyond the matters
stated herein. This opinion is based on and is limited to
the laws of the State of [___________] and the federal laws
of the United States of America. Insofar as the foregoing
opinion relates to matters of law other than the foregoing,
no opinion is hereby given.
This opinion is for the sole benefit of the Lessees, the
Construction Agents, the Guarantor, the Owner Trustee, the
Holders, the Lenders, the Agent and their respective
successors and assigns and may not be relied upon by any
other person other than such parties and their respective
successors and assigns without the express written consent of
the undersigned. The opinions expressed herein are as of the
date hereof and we make no undertaking to amend or supplement
such opinions if facts come to our attention or changes in
the current law of the jurisdictions mentioned herein occur
which could affect such opinions.
Very truly yours,
[LESSEE'S OUTSIDE COUNSEL]
Distribution List
First Union National Bank, as the Agent, a Holder and a
Lender
The various banks and other lending institutions which are
parties to the Participation Agreement from time to time, as
additional Holders
The various banks and other lending institutions which are
parties to the Participation Agreement from time to time, as
additional Lenders
Performance Food Group Company, as the Guarantor
The various parties to the Participation Agreement from time
to time, as the Construction Agents and the Lessees
First Security Bank, National Association, not individually,
but solely as the Owner Trustee under the PFG Real Estate
Trust 2000-1
Schedule 1
Form of Mortgage Instrument
Schedule 2
Forms of UCC Fixture Filings
Schedule 3
Forms of UCC Financing Statements
EXHIBIT C
[NAME OF CREDIT PARTY]
OFFICER'S CERTIFICATE
(Pursuant to Section 5.3(z) of the Participation Agreement)
[NAME OF CREDIT PARTY], a ___________ corporation (the
"Company"), DOES HEREBY CERTIFY as follows:
1. Each and every representation and warranty of
the Company contained in the Operative Agreements
to which it is a party is true and correct on and
as of the date hereof.
2. No Default or Event of Default has occurred
and is continuing under any Operative Agreement.
3. Each Operative Agreement to which the Company
is a party is in full force and effect with respect
to it.
4. The Company has duly performed and complied
with all covenants, agreements and conditions
contained in the Participation Agreement
(hereinafter defined) or in any Operative Agreement
required to be performed or complied with by it on
or prior to the date hereof.
Capitalized terms used in this Officer's Certificate and not
otherwise defined herein have the respective meanings
ascribed thereto in the Participation Agreement dated as of
June 9, 2000 among the parties thereto from time to time, as
the Lessees and as the Construction Agents, Performance Food
Group Company, as the Guarantor (the "Guarantor"), First
Security Bank, National Association, as the Owner Trustee,
the various banks and other lending institutions which are
parties thereto from time to time, as holders (the
"Holders"), the various banks and other lending institutions
which are parties thereto from time to time, as lenders (the
"Lenders") and First Union National Bank, as the agent for
the Lenders and respecting the Security Documents, as the
agent for the Lenders and the Holders, to the extent of their
interests (the "Agent").
IN WITNESS WHEREOF, the Company has caused this Officer's
Certificate to be duly executed and delivered as of this
_____ day of __________, ______.
[NAME OF CREDIT PARTY]
By:
Name:
Title:
EXHIBIT D
[NAME OF CREDIT PARTY]
SECRETARY'S CERTIFICATE
(Pursuant to Section 5.3(aa) of the Participation Agreement)
[NAME OF CREDIT PARTY], a ______________ corporation
(the "Company") DOES HEREBY CERTIFY as follows:
1. Attached hereto as Schedule 1 is a true, correct
and complete copy of the resolutions of the Board
of Directors of the Company duly adopted by the
Board of Directors of the Company on __________.
Such resolutions have not been amended, modified or
rescinded since their date of adoption and remain
in full force and effect as of the date hereof.
2. Attached hereto as Schedule 2 is a true, correct
and complete copy of the Articles of Incorporation
of the Company on file in the Office of the
Secretary of State of __________. Such Articles of
Incorporation have not been amended, modified or
rescinded since their date of adoption and remain
in full force and effect as of the date hereof.
3. Attached hereto as Schedule 3 is a true, correct
and complete copy of the Bylaws of the Company.
Such Bylaws have not been amended, modified or
rescinded since their date of adoption and remain
in full force and effect as of the date hereof.
4. The persons named below now hold the offices set
forth opposite their names, and the signatures
opposite their names and titles are their true and
correct signatures.
Name Office Signature
___________________ _______________________
___________________ _______________________
IN WITNESS WHEREOF, the Company has caused this Secretary's
Certificate to be duly executed and delivered as of this
_____ day of ___________, ______.
[NAME OF CREDIT PARTY]
By:
Name:
Title:
Schedule 1
Board Resolutions
Schedule 2
Articles of Incorporation
Schedule 3
Bylaws
EXHIBIT E
FIRST SECURITY BANK, NATIONAL ASSOCIATION
OFFICER'S CERTIFICATE
(Pursuant to Section 5.3(bb) of the Participation Agreement)
FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association, not individually (except with respect to
paragraph 1 below, to the extent any such representations and
warranties are made in its individual capacity) but solely as
the owner trustee under the PFG Real Estate Trust 2000-1 (the
"Owner Trustee"), DOES HEREBY CERTIFY as follows:
1. Each and every representation and warranty of the
Owner Trustee contained in the Operative Agreements
to which it is a party is true and correct on and
as of the date hereof.
2. Each Operative Agreement to which the Owner Trustee
is a party is in full force and effect with respect
to it.
3. The Owner Trustee has duly performed and complied
with all covenants, agreements and conditions
contained in the Participation Agreement
(hereinafter defined) or in any Operative Agreement
required to be performed or complied with by it on
or prior to the date hereof.
Capitalized terms used in this Officer's Certificate and not
otherwise defined herein have the respective meanings
ascribed thereto in the Participation Agreement dated as of
June 9, 2000 among the various parties thereto from time to
time, as the Lessees and as the Construction Agents,
Performance Food Group Company, as the Guarantor (the
"Guarantor"), the Owner Trustee, the various banks and other
lending institutions which are parties thereto from time to
time, as holders (the "Holders"), the various banks and other
lending institutions which are parties thereto from time to
time, as lenders (the "Lenders") and First Union National
Bank, as the agent for the Lenders and respecting the
Security Documents, as the agent for the Lenders and the
Holders, to the extent of their interests (the "Agent").
IN WITNESS WHEREOF, the Owner Trustee has caused this
Officer's Certificate to be duly executed and delivered as of
this _____ day of __________, ______.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually,
except as expressly stated
herein, but solely as the Owner
Trustee under the PFG Real
Estate Trust 2000-1
By:
Name:
Title:
EXHIBIT F
FIRST SECURITY BANK, NATIONAL ASSOCIATION
SECRETARY'S CERTIFICATE
(Pursuant to Section 5.3(cc) of the Participation Agreement)
CERTIFICATE OF ASSISTANT SECRETARY
I, ______________________, duly elected and qualified
Assistant Secretary of the Board of Directors of First
Security Bank, National Association (the "Association"),
hereby certify as follows:
1. The Association is a National Banking Association
duly organized, validly existing and in good standing under
the laws of the United States. With respect thereto the
following is noted:
A. Pursuant to Revised Statutes 324, et
seq., as amended, 12 U.S.C. 1, et seq., the
Comptroller of the Currency charters and
exercises regulatory and supervisory authority
over all National Banking Associations;
B. On December 9, 1881, the First National
Bank of Ogden, Utah was chartered as a
National Banking Association under the laws of
the United States and under Charter No. 2597;
C. On October 2, 1922, in connection with a
consolidation of The First National Bank of
Ogden, Ogden, Utah, and The Utah National Bank
of Ogden, Ogden, Utah, the title was changed
to "The First & Utah National Bank of Ogden";
on January 18, 1923, The First & Utah National
Bank of Ogden changed its title to "First Utah
National Bank of Ogden"; on January 19, 1926,
the title was changed to "First National Bank
of Ogden"; on February 24, 1934, the title was
changed to "First Security Bank of Utah,
National Association"; on June 21, 1996, the
title was changed to "First Security Bank,
National Association"; and
D. First Security Bank, National
Association, Ogden, Utah, continues to hold a
valid certificate to do business as a National
Banking Association.
2. The Association's Articles of Association, as
amended, are in full force and effect, and a true, correct
and complete copy is attached hereto as Schedule A and
incorporated herein by reference. Said Articles were last
amended October 20, 1975, as required by law on notice at a
duly called special meeting of the shareholders of the
Association.
3. The Association's By-Laws, as amended, are in full
force and effect; and a true, correct and complete copy is
attached hereto as Schedule B and incorporated herein by
reference. Said By-Laws, still in full force and effect,
were adopted September 17, 1942, by resolution, after proper
notice of consideration and adoption of By-Laws was given to
each and every shareholder, at a regularly called meeting of
the Board of Directors with a quorum present.
4. Pursuant to the authority vested in it by an Act of
Congress approved December 23, 1913 and known as the Federal
Reserve Act, as amended, the Federal Reserve Board (now the
Board of Governors of the Federal Reserve System) has granted
to the Association now known as "First Security Bank,
National Association" of Ogden, Utah, the right to act, when
not in contravention of State or local law, as trustee,
executor, administrator, registrar of stocks and bonds,
guardian of estates, assignee, receiver, committee of estates
of lunatics, or in any other fiduciary capacity in which
State banks, trust companies or other corporations which come
into competition with National Banks are permitted to act
under the laws of the State of Utah; and under the provisions
of applicable law, the authority so granted remains in full
force and effect.
5. Pursuant to authority vested by Act of Congress (12
▇.▇.▇. ▇▇▇ ▇▇▇ ▇▇ ▇.▇.▇. ▇▇▇, as amended) the Comptroller of
the Currency has issued Regulation 9, as amended, dealing, in
part, with the Fiduciary Powers of National Banks, said
regulation providing in subparagraph 9.7 (a) (1-2):
(1) The board of directors is
responsible for the proper exercise of
fiduciary powers by the Bank. All
matters pertinent thereto, including the
determination of policies, the investment
and disposition of property held in
fiduciary capacity, and the direction and
review of the actions of all officers,
employees, and committees utilized by the
Bank in the exercise of its fiduciary
powers, are the responsibility of the
board. In discharging this
responsibility, the board of directors
may assign, by action duly entered in the
minutes, the administration of such of
the Bank's fiduciary powers as it may
consider proper to assign to such
director(s), officer(s), employee(s) or
committee(s) as it may designate.
(2) No fiduciary account shall be
accepted without the prior approval of
the board, or of the director(s),
officer(s), or committee(s) to whom the
board may have designated the performance
of that responsibility. . . .
6. A Resolution relating to Exercise of Fiduciary
Powers was adopted by the Board of Directors at a meeting
held July 26, 1994 at which time there was a quorum present;
said resolution is still in full force and effect and has not
been rescinded. Said resolution is attached hereto as
Schedule C and incorporated herein by reference.
7. A Resolution relating to the Designation of
Officers and Employees to Exercise Fiduciary Powers was
adopted by the Trust Policy Committee at a meeting held
February 7, 1996 at which time a quorum was present; said
resolution is still in full force and effect and has not been
rescinded. Said resolution is attached hereto as Schedule D
and is incorporated herein by reference.
8. Attached hereto as Schedule E and incorporated
herein by reference, is a listing of facsimile signatures of
persons authorized (herein "Authorized Signatory or
Signatories") on behalf of the Association and its Trust
Group to act in exercise of its fiduciary powers subject to
the resolutions in Paragraphs 6 and 7, above.
9. The principal office of the First Security Bank,
National Association, Trust Group and of its departments,
except for the St. ▇▇▇▇▇▇, Utah, Ogden, Utah, and Provo,
Utah, branch offices, is located at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and all records relating to
fiduciary accounts are located at such principal office of
the Trust Group or in storage facilities within Salt Lake
County, Utah, except for those of the Ogden, Utah, St.
▇▇▇▇▇▇, Utah, and Provo, Utah, branch offices, which are
located at said office.
10. Each Authorized Signatory (i) is a duly elected or
appointed, duly qualified officer or employee of the
Association; (ii) holds the office or job title set forth
below his or her name on the date hereof; (iii) and the
facsimile signature appearing opposite the name of each such
officer or employee is a true replica of his or her
signature.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
the seal of the Association this __________ day of
_________________, ______.
(SEAL)
________________________________________
R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Senior Vice President
Assistant Secretary
Schedule A
Articles of Association
Schedule B
Bylaws
Schedule C
Resolution Relating to
Exercise of Fiduciary Powers
Schedule D
Resolution Relating to the
Designation of Officers and Employees
to Exercise Fiduciary Powers
Schedule E
Authorized Signatory or Signatories
EXHIBIT G
[Outside Counsel Opinion for the Owner Trustee]
(Pursuant to Section 5.3(dd) of the
Participation Agreement)
___________, ______
TO THOSE ON THE ATTACHED DISTRIBUTION LIST
Re: Trust Agreement dated as of June 9, 2000
Dear Sirs:
We have acted as special counsel for First Security
Bank, National Association, a national banking association,
in its individual capacity ("FSB") and in its capacity as
trustee (the "Owner Trustee") under the Trust Agreement dated
as of June 9, 2000 (the "Trust Agreement") by and among it
and the various banks and other lending institutions which
are parties thereto from time to time, as holders (the
"Holders"), in connection with the execution and delivery by
the Owner Trustee of the Operative Agreements to which it is
a party. Except as otherwise defined herein, the terms used
herein shall have the meanings set forth in Appendix A to the
Participation Agreement dated as of June 9, 2000 (the
"Participation Agreement") by and among the various parties
thereto from time to time, as the lessees and the
construction agents (the "Lessees"), Performance Food Group
Company (the "Guarantor"), First Security Bank, National
Association, as the Owner Trustee, the Holders, the various
banks and other lending institutions which are parties
thereto from time to time, as lenders (the "Lenders") and
First Union National Bank, as the agent for the Lenders and
respecting the Security Documents, as the agent for the
Lenders and the Holders, to the extent of their interests
(the "Agent").
We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed
necessary or advisable for the purpose of rendering this
opinion.
Based upon the foregoing, we are of the opinion that:
1. FSB is a national banking association duly
organized, validly existing and in good standing under the
laws of the United States of America and each of FSB and the
Owner Trustee has under the laws of the State of Utah and
federal banking law the power and authority to enter into and
perform its obligations under the Trust Agreement and each
other Operative Agreement to which it is a party.
2. The Owner Trustee is the duly appointed trustee
under the Trust Agreement.
3. The Trust Agreement has been duly authorized,
executed and delivered by one (1) of the officers of FSB and,
assuming due authorization, execution and delivery by the
Holders, is a legal, valid and binding obligation of the
Owner Trustee (and to the extent set forth therein, against
FSB), enforceable against the Owner Trustee (and to the
extent set forth therein, against FSB) in accordance with its
terms, and the Trust Agreement creates under the laws of the
State of Utah for the Holders the beneficial interest in the
Trust Estate it purports to create and is a valid trust under
the laws of the State of Utah.
4. The Operative Agreements to which it is party have
been duly authorized, executed and delivered by FSB, and,
assuming due authorization, execution and delivery by the
other parties thereto, are legal, valid and binding
obligations of FSB, enforceable against FSB in accordance
with their respective terms.
5. The Operative Agreements to which it is party have
been duly authorized, executed and delivered by the Owner
Trustee, and, assuming due authorization, execution and
delivery by the other parties thereto, are legal, valid and
binding obligations of the Owner Trustee, enforceable against
the Owner Trustee in accordance with their respective terms.
The Notes and Certificates have been duly issued, executed
and delivered by the Owner Trustee, pursuant to authorization
contained in the Trust Agreement, and the Certificates are
entitled to the benefits and security afforded by the Trust
Agreement in accordance with its terms and the terms of the
Trust Agreement.
6. The execution and delivery by each of FSB and the
Owner Trustee of the Trust Agreement and the Operative
Agreements to which it is a party, and compliance by FSB or
the Owner Trustee, as the case may be, with all of the
provisions thereof do not and will not contravene any Laws
applicable to or binding on FSB, or as the Owner Trustee, or
contravene the provisions of, or constitute a default under,
its charter documents or by-laws or, to our knowledge after
due inquiry, any indenture, mortgage contract or other
agreement or instrument to which FSB or Owner Trustee is a
party or by which it or any of its property may be bound or
affected.
7. The execution and delivery of the Operative
Agreements by each of FSB and the Owner Trustee and the
performance by each of FSB and the Owner Trustee of their
respective obligations thereunder does not require on or
prior to the date hereof the consent or approval of, the
giving of notice to, the registration or filing with, or the
taking of any action in respect of any Governmental Authority
or any court.
8. Assuming that the trust created by the Trust
Agreement is treated as a grantor trust for federal income
tax purposes within the contemplation of Section 671 through
678 of the Internal Revenue Code of 1986, there are no fees,
taxes, or other charges (except taxes imposed on fees payable
to the Owner Trustee) payable to the State of Utah or any
political subdivision thereof in connection with the
execution, delivery or performance by the Owner Trustee, the
Agent, the Lenders, the Lessee or the Holders, as the case
may be, of the Operative Agreements or in connection with the
acquisition of any Property by the Owner Trustee or in
connection with the making by any Holder of its investment in
the Trust or its acquisition of the beneficial interest in
the Trust Estate or in connection with the issuance and
acquisition of the Certificates, or the Notes, and neither
the Owner Trustee, the Trust Estate nor the trust created by
the Trust Agreement will be subject to any fee, tax or other
governmental charge (except taxes on fees payable to the
Owner Trustee) under the laws of the State of Utah or any
political subdivision thereof on, based on or measured by,
directly or indirectly, the gross receipts, net income or
value of the Trust Estate by reason of the creation or
continued existence of the trust under the terms of the Trust
Agreement pursuant to the laws of the State of Utah or the
Owner Trustee's performance of its duties under the Trust
Agreement.
9. There is no fee, tax or other governmental charge
under the laws of the State of Utah or any political
subdivision thereof in existence on the date hereof on, based
on or measured by any payments under the Certificates, Notes
or the beneficial interest in the Trust Estate, by reason of
the creation of the trust under the Trust Agreement pursuant
to the laws of the State of Utah or the Owner Trustee's
performance of its duties under the Trust Agreement within
the State of Utah.
10. Upon the filing of the financing statement on form
UCC-1 (a copy of which has been provided to the Owner Trustee
and reviewed by us) with the Utah Division of Corporations
and Commercial Code, the Agent's security interest in the
Trust Estate, for the benefit of the Lenders and the Holders,
will be perfected, to the extent that such perfection is
governed by Article 9 of the Uniform Commercial Code as in
effect in the State of Utah (the "Utah UCC").
Your attention is directed to the Utah UCC, which
provides, in part, that a filed financing statement which
does not state a maturity date or which states a maturity
date of more than five (5) years is effective only for a
period of five (5) years from the date of filing, unless
within six (6) months prior to the expiration of said period
a continuation statement is filed in the same office or
offices in which the original statement was filed. The
continuation statement must be signed by the secured party,
identify the original statement by file number and state that
the original statement is still effective. Upon the timely
filing of a continuation statement, the effectiveness of the
original financing statement is continued for five (5) years
after the last date to which the original statement was
effective. Succeeding continuation statements may be filed
in the same manner to continue the effectiveness of the
original statement.
The foregoing opinions are subject to the following
assumptions, exceptions and qualifications:
A. We are attorneys admitted to practice in the State
of Utah and in rendering the foregoing opinions we have not
passed upon, or purported to pass upon, the laws of any
jurisdictions other than the State of Utah and the federal
banking law governing the banking and trust powers of FSB.
In addition, without limiting the foregoing we express no
opinion with respect to (i) federal securities laws,
including the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the Trust
Indenture Act of 1939, as amended, (ii) Title 49 of the
United States Code Annotated (previously the Federal Aviation
Act of 1958), as amended, (iii) the Federal Communications
Act of 1934, as amended, or (iv) state securities or blue sky
laws. Insofar as the foregoing opinions relate to the
legality, validity, binding effect and enforceability of the
documents involved in these transactions, which by their
terms are governed by the laws of a state other than Utah, we
have assumed that the laws of such state (as to which we
express no opinion), are in all material aspects identical to
the laws of the State of Utah.
B. The opinions set forth in paragraphs 3, 4, and 5
above are subject to the qualification that enforceability of
the Trust Agreement and the other Operative Agreements to
which FSB and the Owner Trustee are parties, in accordance
with their respective terms, may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium,
receivership or similar laws affecting enforcement of
creditors' rights generally, and (ii) general principles of
equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
C. As to the documents involved in these transactions,
we have assumed that each is a legal, valid and binding
obligation of each party thereto, other than FSB or the Owner
Trustee, and is enforceable against each such party in
accordance with their respective terms.
D. We have assumed that all signatures, other than
those of the Owner Trustee or FSB, on documents and
instruments involved in these transactions are genuine, that
all documents and instruments submitted to us as originals
are authentic, and that all documents and instruments
submitted to us as copies conform with the originals, which
facts we have not independently verified.
E. We do not purport to be experts in respect of, or
express any opinion concerning laws, rules or regulations
applicable to the particular nature of the equipment or
property involved in these transactions.
F. We have made no investigation of, and we express no
opinion concerning, the nature of the title to any part of
the equipment or property involved in these transactions or
the priority of any mortgage or security interest.
G. We have assumed that the Participation Agreement
and the transactions contemplated thereby are not within the
prohibitions of Section 406 of the Employee Retirement Income
Security Act of 1974.
H. In addition to any other limitation by operation of
law upon the scope, meaning, or purpose of this opinion, the
opinions expressed herein speak only as of the date hereof.
We have no obligation to advise the recipients of this
opinion (or any third party) and make no undertaking to amend
or supplement such opinions if facts come to our attention or
changes in the current law of the jurisdictions mentioned
herein occur which could affect such opinions the legal
analysis, a legal conclusion or any information confirmation
herein.
I. This opinion is for the sole benefit of the
Lessees, the Construction Agents, the Guarantor, the Owner
Trustee, the Holders, the Lenders, the Agent and their
respective successors and assigns in matters directly related
to the Participation Agreement or the transaction
contemplated thereunder and may not be relied upon by any
other person other than such parties and their respective
successors and assigns without the express written consent of
the undersigned. The opinions expressed in this letter are
limited to the matter set forth in this letter, and no other
opinions should be inferred beyond the matters expressly
stated.
Very truly yours,
RAY, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
M. ▇▇▇▇ ▇▇▇▇▇▇
Distribution List
First Union National Bank, as the Agent, a Holder and a
Lender
The various banks and other lending institutions which are
parties to the Participation Agreement from time to time, as
additional Holders
The various banks and other lending institutions which are
parties to the Participation Agreement from time to time, as
additional Lenders
Performance Food Group Company, as the Guarantor
The various parties to the Participation Agreement from time
to time, as the Construction Agents and the Lessees
First Security Bank, National Association, not individually,
but solely as the Owner Trustee under the PFG Real Estate
Trust 2000-1
EXHIBIT H
[CONFORM TO NEGOTIATED OPINION]
[Outside Counsel Opinion for the Lessee]
(Pursuant to Section 5.3(ee) of the Participation Agreement)
____________, ______
TO THOSE ON THE ATTACHED DISTRIBUTION LIST
Re: Synthetic Lease Financing Provided in favor of
Performance Food Group Company
Dear Sirs:
We have acted as special counsel to Performance Food Group
Company, a Tennessee corporation (the "Guarantor") and the
various parties to the Participation Agreement (hereinafter
defined) from time to time, as the construction agents and as
the lessees (individually, a "Lessee" and collectively, the
"Lessees"; individually, each Lessee and the Guarantor may be
referred to herein as a "Credit Party" or collectively, as
the "Credit Parties") in connection with certain transactions
contemplated by the Participation Agreement dated as of June
9, 2000 (the "Participation Agreement"), among the Lessees,
the Guarantor, First Security Bank, National Association, as
the Owner Trustee (the "Owner Trustee"), the various banks
and other lending institutions which are parties thereto from
time to time, as holders (the "Holders"), the various banks
and other lending institutions which are parties thereto from
time to time, as lenders (the "Lenders") and First Union
National Bank, as the agent for the Lenders and respecting
the Security Documents, as the agent for the Lenders and the
Holders, to the extent of their interests (the "Agent").
This opinion is delivered pursuant to Section 5.3(ee) of the
Participation Agreement. All capitalized terms used herein,
and not otherwise defined herein, shall have the meanings
assigned thereto in Appendix A to the Participation
Agreement.
In connection with the foregoing, we have examined originals,
or copies certified to our satisfaction, of the Operative
Agreements, and such other corporate, partnership or limited
liability company documents and records of the Credit
Parties, certificates of public officials and representatives
of the Credit Parties as to certain factual matters, and such
other instruments and documents which we have deemed
necessary or advisable to examine for the purpose of this
opinion. With respect to such examination, we have assumed
(i) the statements of fact made in all such certificates,
documents and instruments are true, accurate and complete;
(ii) the due authorization, execution and delivery of the
Operative Agreements by the parties thereto other than the
Credit Parties; (iii) the genuineness of all signatures
(other than the signatures of persons signing on behalf of
the Credit Parties), the authenticity and completeness of all
documents, certificates, instruments, records and corporate
records submitted to us as originals and the conformity to
the original instruments of all documents submitted to us as
copies, and the authenticity and completeness of the
originals of such copies; (iv) that all parties other than
the Credit Parties have all requisite corporate power and
authority to execute, deliver and perform the Operative
Agreements; and (v) the enforceability of the Operative
Agreements against all parties thereto other than the Credit
Parties and respecting the opinion set forth below in section
(i), First Security Bank, National Association, individually
or as the Owner Trustee, as the case may be. We have further
assumed that the laws of the States of [state of lawyer's
admission] and [governing law of Participation Agreement] are
substantively identical.
Based on the foregoing, and having due regard for such legal
considerations as we deem relevant, and subject to the
limitations and assumptions set forth herein, including
without limitation the matters set forth in the last two (2)
paragraphs hereof, we are of the opinion that:
(a) Each Credit Party is a corporation, duly
incorporated, validly existing and in good standing under the
laws of the state of its incorporation and has the power and
authority to conduct its business as presently conducted and
to execute, deliver and perform its obligations under the
Operative Agreements to which it is a party. Each Credit
Party is duly qualified to do business in all jurisdictions
in which its failure to so qualify would materially impair
its ability to perform its obligations under the Operative
Agreements to which it is a party or its financial position
or its business as now and now proposed to be conducted.
(b) The execution, delivery and performance by each
Credit Party of the Operative Agreements to which it is a
party have been duly authorized by all necessary corporate
action on the part of such Credit Party and the Operative
Agreements to which such Credit Party is a party have been
duly executed and delivered by such Credit Party.
(c) The Operative Agreements to which any Credit Party
is a party constitute valid and binding obligations of such
Credit Party enforceable against such Credit Party in
accordance with the terms thereof, subject to bankruptcy,
insolvency, liquidation, reorganization, fraudulent
conveyance, and similar laws affecting creditors' rights
generally, and general principles of equity (regardless of
whether the application of such principles is considered in a
proceeding in equity or at law).
(d) The execution and delivery by each Credit Party of
the Operative Agreements to which it is a party and
compliance by each Credit Party with all of the provisions
thereof do not and will not (i) contravene the provisions of,
or result in any breach of or constitute any default under,
or result in the creation of any Lien (other than Permitted
Liens and Lessor Liens) upon any of its property under, its
Articles of Incorporation or by-laws or any indenture,
mortgage, chattel mortgage, deed of trust, lease, conditional
sales contract, bank loan or credit agreement or other
agreement or instrument to which any Credit Party is a party
or by which it or any property of any Credit Party may be
bound or affected, or (ii) contravene any Laws or any order
of any Governmental Authority applicable to or binding on any
Credit Party.
(e) No Governmental Action by, and no notice to or
filing with, any Governmental Authority is required for the
due execution, delivery or performance by any Credit Party of
any of the Operative Agreements to which any Credit Party is
a party or for the acquisition, ownership, construction and
completion of the Properties, except for those which have
been obtained.
(f) Except as set forth on Schedule 1 hereto, there are
no actions, suits or proceedings pending or to our knowledge,
threatened against any Credit Party in any court or before
any Governmental Authority, that concern the Properties or
the interest of any Credit Party therein or that question the
validity or enforceability of any Operative Agreement to
which any Credit Party is a party or the overall transaction
described in the Operative Agreements to which any Credit
Party is a party.
(g) Neither the nature of the Properties, nor any
relationship between any Credit Party and any other Person,
nor any circumstance in connection with the execution,
delivery and performance of the Operative Agreements to which
any Credit Party is a party is such as to require any
approval of stockholders of, or approval or consent of any
trustee or holders of indebtedness of, any Credit Party,
except for such approvals and consents which have been duly
obtained and are in full force and effect.
(h) The Security Documents which have been executed and
delivered as of the date of this opinion create, for the
benefit of the Agent, the security interests in the
Collateral described therein which by their terms such
Security Documents purport to create. Upon filing of the UCC-
1 financing statements (attached hereto as Schedule 2)
relating to the Security Documents in the recording offices
of (A) the respective county clerk where the principal place
of business of the Lessee is located and (B) the Secretary of
State where the principal place of business of the Lessee is
located, the Agent will have a valid, perfected lien and
security interest in that portion of the Collateral which can
be perfected by the filing of UCC-1 financing statements
under Article 9 of the UCC in [identify the state].
(i) The Operative Agreements to which First Security
Bank, National Association, individually or as the Owner
Trustee, is a party constitute valid and binding obligations
of such party and are enforceable against First Security
Bank, National Association, individually or as the Owner
Trustee, as the case may be, in accordance with the terms
thereof, subject to bankruptcy, insolvency, liquidation,
reorganization, fraudulent conveyance, and similar laws
affecting creditors, rights generally, and general principles
of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at
law).
(j) The offer, issuance, sale and delivery of the Notes
and the offer, issuance, sale and delivery of the
Certificates under the circumstances contemplated by the
Participation Agreement do not, under existing law, require
registration of the Notes or the Certificates being issued on
the date hereof under the Securities Act of 1933, as amended,
or the qualification of the Trust Agreement under the Trust
Indenture Act of 1939, as amended.
This opinion is limited to the matters stated herein and no
opinion is implied or may be inferred beyond the matters
stated herein. This opinion is based on and is limited to
the laws of the States of [__________], and the federal laws
of the United States of America. Insofar as the foregoing
opinion relates to matters of law other than the foregoing,
no opinion is hereby given.
This opinion is for the sole benefit of the Lessees, the
Construction Agents, the Guarantor, the Owner Trustee, the
Holders, the Lenders, the Agent and their respective
successors and assigns and may not be relied upon by any
other person other than such parties and their respective
successors and assigns without the express written consent of
the undersigned. The opinions expressed herein are as of the
date hereof and we make no undertaking to amend or
supplement such opinions if facts come to our attention or
changes in the current law of the jurisdictions mentioned
herein occur which could affect such opinions.
Very truly yours,
[LESSEE'S OUTSIDE COUNSEL]
Distribution List
First Union National Bank, as the Agent, a Holder and a
Lender
Performance Food Group Company, as the Guarantor
The various parties to the Participation Agreement from time
to time, as the Construction Agents and the Lessees
The various banks and other lending institutions which are
parties to the Participation Agreement from time to time, as
additional Holders
The various banks and other lending institutions which are
parties to the Participation Agreement from time to time, as
additional Lenders
First Security Bank, National Association, not individually,
but solely as the Owner Trustee under the PFG Real Estate
Trust 2000-1
Schedule 1
(Litigation)
Schedule 2
(UCC-1 Financing Statements)
EXHIBIT I
[NAME OF LESSEE]
OFFICER'S CERTIFICATE
(Pursuant to Section 5.5 of the Participation Agreement)
[NAME OF LESSEE], a _______________ corporation (the
"Company") DOES HEREBY CERTIFY as follows:
1. The address for the subject Property is
________________________________________
________________________________.
2. The Completion Date for the construction of Improvements
at the Property occurred on ______________.
3. The aggregate Property Cost for the Property was
$___________.
4. Attached hereto as Schedule 1 is the detailed, itemized
documentation supporting the asserted Property Cost
figures.
5. All representations and warranties of the Company in
each Operative Agreement and in each certificate
delivered pursuant thereto (including without limitation
the Incorporated Representations and Warranties) are
true and correct as of the Completion Date.
Capitalized terms used in this Officer's Certificate and not
otherwise defined have the respective meanings ascribed
thereto in the Participation Agreement dated as of June
9, 2000 among the various parties thereto from time to time,
as the Lessees and as the Construction Agents, Performance
Food Group Company, as the guarantor (the "Guarantor") First
Security Bank, National Association, as the Owner Trustee,
the various banks and other lending institutions which are
parties thereto from time to time, as holders (the
"Holders"), the various banks and other lending institutions
which are parties thereto from time to time, as lenders (the
"Lenders"), First Union National Bank, as the agent for the
Lenders and respecting the Security Documents, as the agent
for the Lenders and the Holders, to the extent of their
interests.
[The remainder of this page has been intentionally left
blank.]
IN WITNESS WHEREOF, the Company has caused this Officer's
Certificate to be duly executed and delivered as of this ____
day of ______________, ______.
[NAME OF LESSEE]
By:
Name:
Title:
Schedule I
(Itemized Documentation in Support of Asserted Property Cost)
EXHIBIT J
[Description of Material Litigation]
(Pursuant to Section 6.2(d) of the Participation Agreement)
NONE
EXHIBIT K
[States of Incorporation/Formation and Principal Place of
Business of Each Credit Party]
(Pursuant to Section 6.2(i) of the Participation Agreement)
Location of
State of Office where
Chief Records
State of Executive concerning
Credit Party Incorporation/ Office and Accounts and
Formation Principal Contract Rights
Place of Relating to Any
Business Property are Kept
Performance Tennessee Virginia 6800 Paragon Place
Food Ste. 500
Group Company ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Appendix A
Rules of Usage and Definitions
I. Rules of Usage
The following rules of usage shall apply to this Appendix A
and the Operative Agreements (and each appendix, schedule,
exhibit and annex to the foregoing) unless otherwise required
by the context or unless otherwise defined therein:
(a) Except as otherwise expressly provided, any
definitions set forth herein or in any other document shall
be equally applicable to the singular and plural forms of the
terms defined.
(b) Except as otherwise expressly provided, references
in any document to articles, sections, paragraphs, clauses,
annexes, appendices, schedules or exhibits are references to
articles, sections, paragraphs, clauses, annexes, appendices,
schedules or exhibits in or to such document.
(c) The headings, subheadings and table of contents
used in any document are solely for convenience of reference
and shall not constitute a part of any such document nor
shall they affect the meaning, construction or effect of any
provision thereof.
(d) References to any Person shall include such Person,
its successors, permitted assigns and permitted transferees.
(e) Except as otherwise expressly provided, reference
to any agreement means such agreement as amended, modified,
extended, supplemented, restated and/or replaced from time to
time in accordance with the applicable provisions thereof.
(f) Except as otherwise expressly provided, references
to any law includes any amendment or modification to such law
and any rules or regulations issued thereunder or any law
enacted in substitution or replacement therefor.
(g) When used in any document, words such as
"hereunder", "hereto", "hereof" and "herein" and other words
of like import shall, unless the context clearly indicates to
the contrary, refer to the whole of the applicable document
and not to any particular article, section, subsection,
paragraph or clause thereof.
(h) References to "including" means including without
limiting the generality of any description preceding such
term and for purposes hereof the rule of ejusdem generis
shall not be applicable to limit a general statement,
followed by or referable to an enumeration of specific
matters, to matters similar to those specifically mentioned.
(i) References herein to "attorney's fees", "legal
fees", "costs of counsel" or other such references shall be
deemed to include the allocated cost of in-house counsel.
(j) Each of the parties to the Operative Agreements and
their counsel have reviewed and revised, or requested
revisions to, the Operative Agreements, and the usual rule of
construction that any ambiguities are to be resolved against
the drafting party shall be inapplicable in the construction
and interpretation of the Operative Agreements and any
amendments or exhibits thereto.
(k) Capitalized terms used in any Operative Agreements
which are not defined in this Appendix A but are defined in
another Operative Agreement shall have the meaning so
ascribed to such term in the applicable Operative Agreement.
(l) In computing any period of time for purposes of any
Operative Agreement, the mechanics for counting the number of
days set forth in Rule 6 of the Federal Rules of Civil
Procedure shall be observed.
II. Definitions
"AAA" shall have the meaning given to such term in
Section 12.7(d) of the Participation Agreement.
"ABR" shall mean, for any day, a rate per annum equal to
the greater of (a) the Prime Lending Rate in effect on such
day, and (b) the Federal Funds Effective Rate in effect on
such day plus one-half of one percent (0.5%). For purposes
hereof: "Prime Lending Rate" shall mean the rate announced
by the Agent from time to time as its prime lending rate as
in effect from time to time. The Prime Lending Rate is a
reference rate and is one of several interest rate bases used
by the Agent and does not necessarily represent the lowest or
most favorable rate offered by the Agent actually charged to
any customer. Any Lender may make commercial loans or other
loans at rates of interest at, above or below the Prime
Lending Rate. The Prime Lending Rate shall change
automatically and without notice from time to time as and
when the prime lending rate of the Agent changes. "Federal
Funds Effective Rate" shall mean, for any period, a
fluctuating interest rate per annum equal for each day during
such period to the weighted average of the rates on overnight
Federal funds transactions with members or the Federal
Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by
the Agent from three (3) Federal funds brokers of recognized
standing selected by it. Any change in the ABR due to a
change in the Prime Lending Rate or the Federal Funds
Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime
Lending Rate or the Federal Funds Effective Rate,
respectively.
"ABR Holder Advance" shall mean a Holder Advance bearing
a Holder Yield based on the ABR.
"ABR Loans" shall mean Loans the rate of interest
applicable to which is based upon the ABR.
"Acceleration" shall have the meaning given to such term
in Section 6 of the Credit Agreement.
"Accounts" shall have the meaning given to such term in
Section 1 of the Security Agreement.
"Acquisition Advance" shall have the meaning given to
such term in Section 5.3 of the Participation Agreement.
"Acquisition Loan" shall mean any Loan made in
connection with an Acquisition Advance.
"Additional Incorporated Terms" shall have the meaning
given to such term in Section 28.1 of the Lease.
"Advance" shall mean a Construction Advance or an
Acquisition Advance.
"Affiliate" shall mean, with respect to any Person, any
Person or group acting in concert in respect of the Person in
question that, directly or indirectly, controls or is
controlled by or is under common control with such Person.
"After Tax Basis" shall mean, with respect to any
payment to be received, the amount of such payment increased
so that, after deduction of the amount of all taxes required
to be paid by the recipient calculated at the then maximum
marginal rates generally applicable to Persons of the same
type as the recipients with respect to the receipt by the
recipient of such amounts (less any tax savings realized as a
result of the payment of the indemnified amount), such
increased payment (as so reduced) is equal to the payment
otherwise required to be made.
"Agency Agreement" shall mean the Agency Agreement,
dated on or about the Initial Closing Date between the
Construction Agents that are parties thereto from time to
time and the Lessor.
"Agency Agreement Event of Default" shall mean an "Event
of Default" as defined in Section 5.1 of the Agency
Agreement.
"Agent" shall mean First Union National Bank, as agent
for the Lenders pursuant to the Credit Agreement, or any
successor agent appointed in accordance with the terms of the
Credit Agreement and respecting the Security Documents, for
the Lenders and the Holders, to the extent of their
interests.
"Applicable Percentage" shall mean for Eurodollar Loans
and Eurodollar Holder Advances, the appropriate applicable
percentages corresponding to the Leverage Ratio in effect as
of the most recent Calculation Date as shown below:
Pricing Level Leverage Ratio Eurodollar Loans Holder Advances
Level I >.50 to 1.0 0.750% 1.500%
Level II >.40 to 1, but <=.50 to 1.0 0.625% 1.400%
Level III >.30 to 1, but <=.40 to 1.0 0.500% 1.250%
Level IV <=.30 to 1.0 0.425% 1.175%
The Applicable Percentage for Eurodollar Loans and
Eurodollar Holder Advances shall, in each case, be determined
and adjusted quarterly on the tenth (10th) Business Day after
receipt by the Agent of quarterly financial statements for
the Guarantor and its Subsidiaries and the accompanying
Officer's Compliance Certificate setting forth the Leverage
Ratio of the Guarantor and its Subsidiaries as of the most
recent fiscal quarter end, as required pursuant to Sections
7.1 and 7.2 of the Lessee Credit Agreement and, by
incorporation, pursuant to Section 28.1 of the Lease (each a
"Calculation Date"); provided, however, that (i) the initial
Applicable Percentage, in each case, shall be based on
Pricing Level ___ (as shown above) and shall remain at
Pricing Level ___ until the next occurring Calculation Date
and, thereafter, the Pricing Level shall be determined by the
then current Leverage Ratio, and (ii) if the Guarantor fails
to provide the financial statements and related Officer's
Compliance Certificate required pursuant to Sections 7.1 and
7.2 of the Lessee Credit Agreement (and, by incorporation,
pursuant to Section 28.1 of the Lease) to the Agent on or
before the most recent Calculation Date, the Applicable
Percentage, in each case, from such Calculation Date shall be
based on Pricing Level I until such time that such financial
statements and related Officer's Compliance Certificate are
provided, whereupon the Pricing Level shall be determined by
the then current Leverage Ratio. Each Applicable Percentage
shall be effective from one Calculation Date until the next
Calculation Date. Any adjustment in the Applicable
Percentage shall be applicable to all existing Eurodollar
Loans and Eurodollar Holder Advances as well as any new
Eurodollar Loans and Eurodollar Holder Advances made or
issued.
"Appraisal" shall mean, with respect to any Property, an
appraisal to be delivered in connection with the
Participation Agreement or in accordance with the terms of
the Lease, in each case prepared by a reputable appraiser
reasonably acceptable to the Agent, which in the judgment of
counsel to the Agent, complies with all of the provisions of
the Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended, the rules and regulations adopted
pursuant thereto, and all other applicable Legal
Requirements.
"Appraisal Procedure" shall have the meaning given such
term in Section 22.4 of the Lease.
"Approved State" shall mean each of the following:
Virginia and any other state within the continental United
States proposed by the Guarantor and consented to in writing
by the Agent in its reasonable discretion.
"Appurtenant Rights" shall mean (a) all agreements,
easements, rights of way or use, rights of ingress or egress,
privileges, appurtenances, tenements, hereditaments and other
rights and benefits at any time belonging or pertaining to
the Land underlying the Improvements or the Improvements,
including without limitation the use of any streets, ways,
alleys, vaults or strips of land adjoining, abutting,
adjacent or contiguous to the Land and (b) all permits,
licenses and rights, whether or not of record, appurtenant to
such Land or the Improvements.
"Arbitration Rules" shall have the meaning given to such
term in Section 12.7(d) of the Participation Agreement.
"Assignment and Acceptance" shall mean the Assignment
and Acceptance in the form attached to the Credit Agreement
as EXHIBIT B.
"Available Commitment" shall mean, as to any Lender at
any time, an amount equal to the excess, if any, of (a) the
amount of such Lender's Commitment over (b) the aggregate
principal amount of all Loans made by such Lender as of such
date after giving effect to Section 5.2(d) of the
Participation Agreement (but without giving effect to any
other repayments or prepayments of any Loans hereunder).
"Available Holder Commitments" shall mean an amount
equal to the excess, if any, of (a) the aggregate amount of
the Holder Commitments over (b) the aggregate amount of the
Holder Advances made since the Initial Closing Date after
giving effect to Section 5.2(d) of the Participation
Agreement (but without giving effect to any other repayments
or prepayments of any Holder Advances).
"Bankruptcy Code" shall mean Title 11 of the U. S. Code
entitled "Bankruptcy," as now or hereafter in effect or any
successor thereto.
"Basic Documents" shall mean the following: the
Participation Agreement, the Agency Agreement, the Trust
Agreement, the Certificates, the Credit Agreement, the Notes,
the Lease (including each Lease Supplement and the related
memorandum of Lease and such Lease Supplement) and the
Security Agreement.
"Basic Rent" shall mean, the sum of (a) the Loan Basic
Rent and (b) the Lessor Basic Rent, calculated as of the
applicable date on which Basic Rent is due.
"Benefited Lender" shall have the meaning specified in
Section 9.10(a) of the Credit Agreement.
"▇▇▇▇ of Sale" shall mean a ▇▇▇▇ of Sale regarding
Equipment in form and substance satisfactory to the Agent.
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States (or any successor).
"Borrower" shall mean the Owner Trustee, not in its
individual capacity but as Borrower under the Credit
Agreement.
"Borrowing Date" shall mean any Business Day specified
in a notice delivered pursuant to Section 2.3 of the Credit
Agreement as a date on which the Lessor requests the Lenders
to make Loans hereunder.
"Budgeted Total Property Cost" shall mean, at any date
of determination with respect to any Construction Period
Property, an amount equal to the aggregate amount which the
applicable Construction Agent in good faith expects to be
expended in order to achieve Completion with respect to such
Property.
"Business Day" shall mean a day other than a Saturday,
Sunday or other day on which commercial banks in North
Carolina or any other states from which the Agent, any Lender
or any Holder funds or engages in administrative activities
with respect to the transactions under the Operative
Agreements are authorized or required by law to close;
provided, however, that when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar
deposits in the London interbank market.
"Capital Lease" means, with respect to the Guarantor and
its Subsidiaries, any lease of any property that should, in
accordance with GAAP, be classified and accounted for as a
capital lease on a Consolidated balance sheet of the
Guarantor and its Subsidiaries.
"Capital Stock" means any nonredeemable capital stock of
the Guarantor or any Subsidiary thereof, whether common or
preferred.
"Capitalization" means, with respect to the Guarantor
and its Subsidiaries at any date and without duplication, the
sum of the following calculated in accordance with GAAP: (a)
Total Debt plus (b) Consolidated Stockholders' Equity.
"Capitalized Lease" shall mean, as applied to any
Person, any lease of property (whether real, personal,
tangible, intangible or mixed of such Person) by such Person
as the lessee which would be capitalized on a balance sheet
of such Person prepared in accordance with GAAP.
"Casualty" shall mean any damage or destruction of all
or any portion of the Property as a result of a fire or other
casualty.
"CERCLA" shall mean the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, 42 U.S.C.
9601 et seq., as amended by the Superfund Amendments and
Reauthorization Act of 1986.
"Certificate" shall mean a Certificate in favor of each
Holder regarding the Holder Commitment of such Holder issued
pursuant to the terms and conditions of the Trust Agreement
in favor of each Holder.
"Chattel Paper" shall have the meaning given to such
term in Section 1 of the Security Agreement.
"Claims" shall mean any and all obligations,
liabilities, losses, actions, suits, penalties, claims,
demands, costs and expenses (including without limitation
reasonable attorney's fees and expenses) of any nature
whatsoever.
"Closing Date" shall mean the Initial Closing Date and
each Property Closing Date.
"Code" shall mean the Internal Revenue Code of 1986
together with rules and regulations promulgated thereunder,
as amended from time to time, or any successor statute
thereto.
"Collateral" shall mean all assets of the Lessor, each
Construction Agent and each Lessee, now owned or hereafter
acquired, upon which a Lien is purported to be created by one
or more of the Security Documents.
"Commencement Date" shall have the meaning specified in
Section 2.2 of the Lease.
"Commitment" shall mean, as to any Lender, the Lender
Commitment of such Lender.
"Commitment Percentage" shall mean, as to any Lender at
any time, the percentage which such Lender's Commitment then
constitutes of the aggregate Commitments (or, at any time
after the Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such
Lender's Loans then outstanding constitutes of the aggregate
principal amount of all of the Loans then outstanding), and
such Commitment Percentage shall take into account both the
Lender's Tranche A Commitment and the Lender's Tranche B
Commitment.
"Commitment Period" shall mean the period from and
including the Initial Closing Date to and including the
Construction Period Termination Date, or such earlier date as
the Commitments shall terminate as provided in the Credit
Agreement or the Holder Commitment shall terminate as
provided in the Trust Agreement.
"Company Obligations" shall mean, with respect to any
Lessee or any Construction Agent, the obligations of such
Lessee or Construction Agent, in any and all capacities under
and with respect to the Operative Agreements and each
Property of which it is a Lessee or Construction Agent.
"Completion" shall mean, with respect to a Property,
such time as the acquisition, installation, testing and final
completion of the Improvements on such Property has been
achieved in accordance with the Plans and Specifications, the
Agency Agreement and/or the Lease, and in compliance with all
Legal Requirements and Insurance Requirements and a
certificate of occupancy has been issued with respect to such
Property by the appropriate governmental entity (except if
non-compliance, individually or in the aggregate, shall not
have and could not reasonably be expected to have a Material
Adverse Effect). If the Lessor purchases a Property that
includes existing Improvements that are to be immediately
occupied by the Lessee without any contemplated improvements
that are to be financed pursuant to the Operative Agreements,
the date of Completion for such Property shall be the
Property Closing Date.
"Completion Date" shall mean, with respect to a
Property, the earlier of (a) the date on which Completion for
such Property has occurred or (b) the Construction Period
Termination Date.
"Condemnation" shall mean any taking or sale of the use,
access, occupancy, easement rights or title to any Property
or any part thereof, wholly or partially (temporarily or
permanently), by or on account of any actual or threatened
eminent domain proceeding or other taking of action by any
Person having the power of eminent domain, including without
limitation an action by a Governmental Authority to change
the grade of, or widen the streets adjacent to, any Property
or alter the pedestrian or vehicular traffic flow to any
Property so as to result in a change in access to such
Property, or by or on account of an eviction by paramount
title or any transfer made in lieu of any such proceeding or
action.
"Consolidated" means, when used with reference to
financial statements or financial statement items of the
Guarantor and its Subsidiaries, such statements or items on a
consolidated basis in accordance with applicable principles
of consolidation under GAAP.
"Consolidated Subsidiary" shall mean, as to any Person,
any Subsidiary of such Person which under the rules of GAAP
consistently applied should have its financial results
consolidated with those of such Person for purposes of
financial accounting statements.
"Construction Advance" shall mean an advance of funds to
pay Property Costs pursuant to Section 5.4 of the
Participation Agreement.
"Construction Agent" shall mean any Eligible Lessee
designated as lessee (or construction agent) in any Lease
Supplement respecting any Property if such Eligible Lessee
shall have also executed a Lessee Joinder or is otherwise a
party to certain of the Operative Agreements by execution
thereof on or prior to the Initial Closing Date, as the
construction agent under the Agency Agreement respecting such
Property.
"Construction Budget" shall mean the cost of
acquisition, installation, testing, constructing and
developing any Property as determined by any Construction
Agent in its reasonable, good faith judgment.
"Construction Commencement Date" shall mean, with
respect to Improvements, the date on which construction of
such Improvements commences pursuant to the Agency Agreement.
"Construction Contract" shall mean any contract entered
into between any Construction Agent or any Lessee with a
Contractor for the construction of Improvements or any
portion thereof on the Property.
"Construction Loan" shall mean any Loan made in
connection with a Construction Advance.
"Construction Loan Property Cost" shall mean with
respect to each Construction Period Property at the date of
determination, an amount equal to (a) the aggregate principal
amount of Construction Loans made on or prior to such date
with respect to the Property minus (b) the aggregate
principal amount of prepayments or repayments of the Loans
allocated to reduce the Construction Loan Property Cost of
such Property pursuant to Section 2.6(c) of the Credit
Agreement.
"Construction Period" shall mean, with respect to a
Property, the period commencing on the Construction
Commencement Date for such Property and ending on the
Completion Date for such Property.
"Construction Period Property" means, at any date of
determination, any Property as to which the Rent Commencement
Date has not occurred on or prior to such date.
"Construction Period Termination Date" shall mean (a)
the earlier of (i) the date that the Commitments have been
terminated in their entirety in accordance with the terms of
Section 2.5(a) of the Credit Agreement, or (ii) the second
anniversary of the Initial Closing Date or (b) such later
date as shall be agreed to by the Majority Secured Parties.
"Contractor" shall mean each entity with whom any
Construction Agent or any Lessee contracts to construct any
Improvements or any portion thereof on the Property.
"Controlled Group" shall mean all members of a
controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which,
together with any Credit Party, are treated as a single
employer under Section 414 of the Code.
"Co-Owner Trustee" shall have the meaning specified in
Section 9.2 of the Trust Agreement.
"Credit Agreement" shall mean the Credit Agreement,
dated on or about the Initial Closing Date, among the Lessor,
the Agent and the Lenders, as specified therein.
"Credit Agreement Default" shall mean any event or
condition which, with the lapse of time or the giving of
notice, or both, would constitute a Credit Agreement Event of
Default.
"Credit Agreement Event of Default" shall mean any event
or condition defined as an "Event of Default" in Section 6 of
the Credit Agreement.
"Credit Documents" shall mean the Participation
Agreement, the Credit Agreement, the Notes and the Security
Documents.
"Credit Parties" shall mean each Construction Agent, each
Lessee and the Guarantor.
"Debt" means, with respect to the Guarantor and its
Subsidiaries at any date and without duplication, the sum of
the following calculated on a Consolidated basis in
accordance with GAAP: (a) all liabilities, obligations and
indebtedness for borrowed money including but not limited to
obligations evidenced by bonds, debentures, notes or other
similar instruments of the Guarantor or any Subsidiary
thereof, (b) all obligations to pay the deferred purchase
price of property or services of the Guarantor or any
Subsidiary thereof, including without limitation all
obligations under non-competition agreements but excluding
(i) trade payables arising in the ordinary course of business
and (ii) all amounts payable under any earn-out agreement
unless any such earn-out payment is payable in cash and has
been deemed earned and required to be included on the
financial statements of the Guarantor or any Subsidiary
thereof in accordance with GAAP, (c) all obligations of the
Guarantor or any Subsidiary thereof as lessee under Capital
Leases, (d) all Debt of any other Person secured by a Lien on
any asset of the Guarantor or any Subsidiary thereof, (e) all
Guaranty Obligations of the Guarantor or any Subsidiary
thereof (excluding any Guaranty Obligations on account of
trade payables arising in the ordinary course of business),
(f) all obligations, contingent or otherwise, of the
Guarantor or any Subsidiary thereof relative to the face
amount of letters of credit, whether or not drawn, including
without limitation any Reimbursement Obligation, and banker's
acceptances issued for the account of the Guarantor or any
Subsidiary thereof, (g) all obligations of the Guarantor or
any Subsidiary thereof to redeem, repurchase, exchange,
defease or otherwise make payments in respect of capital
stock or other securities of the Guarantor or any Subsidiary
thereof and (h) all obligations incurred by the Guarantor or
any Subsidiary thereof pursuant to Hedging Agreements.
"Deed" shall mean a warranty deed regarding the Land
and/or Improvements in form and substance satisfactory to the
Agent.
"Default" shall mean any event, act or condition which
with notice or lapse of time, or both, would constitute an
Event of Default.
"Defaulting Holder" shall have the meaning given to such
term in Section 12.4 of the Participation Agreement.
"Defaulting Lender" shall have the meaning given to such
term in Section 12.4 of the Participation Agreement.
"Deficiency Balance" shall have the meaning given in
Section 22.1(b) of the Lease Agreement.
"Disputes" shall have the meaning given to such term in
Section 12.7(d) of the Participation Agreement.
"Documents" shall have the meaning given to such term in
Section 1 of the Security Agreement.
"Dollars" and "$" shall mean dollars in lawful currency
of the United States of America.
"ELLF" means, at any date with respect to any Credit
Party and its Subsidiaries, any synthetic lease, end loaded
lease financing, tax retention operating lease, off-balance
sheet loan or similar off-balance sheet financing product to
which such Credit Party or any Subsidiary thereof is a party,
where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an
operating lease in accordance with GAAP on a consistent
basis.
"Election Date" shall have the meaning given to such
term in Section 20.1 of the Lease.
"Election Notice" shall have the meaning given to such
term in Section 20.1 of the Lease.
"Eligible Lessee" shall mean the Guarantor or any Wholly-
Owned Entity.
"Employee Benefit Plan" or "Plan" shall mean an employee
benefit plan (within the meaning of Section 3(3) of ERISA,
including without limitation any Multiemployer Plan), or any
"plan" as defined in Section 4975(e)(1) of the Code and as
interpreted by the Internal Revenue Service and the
Department of Labor in rules, regulations, releases or
bulletins in effect on any Closing Date.
"Environmental Claims" shall mean any investigation,
notice, violation, demand, allegation, action, suit,
injunction, judgment, order, consent decree, penalty, fine,
lien, proceeding, or claim (whether administrative, judicial,
or private in nature) arising (a) pursuant to, or in
connection with, an actual or alleged violation of, any
Environmental Law, (b) in connection with any Hazardous
Substance, (c) from any abatement, removal, remedial,
corrective, or other response action in connection with a
Hazardous Substance, Environmental Law, or other order of a
Tribunal or (d) from any actual or alleged damage, injury,
threat, or harm to health, safety, natural resources, or the
environment.
"Environmental Laws" shall mean any Law, permit,
consent, approval, license, award, or other authorization or
requirement of any Tribunal relating to emissions,
discharges, releases, threatened releases of any Hazardous
Substance into ambient air, surface water, ground water,
publicly owned treatment works, septic system, or land, or
otherwise relating to the handling, storage, treatment,
generation, use, or disposal of Hazardous Substances,
pollution or to the protection of health or the environment,
including without limitation CERCLA, the Resource
Conservation and Recovery Act, 42 U.S.C. 6901, et seq., and
state statutes analogous thereto.
"Environmental Violation" shall mean any activity,
occurrence or condition that violates or threatens (if the
threat requires remediation under any Environmental Law and
is not remediated during any grace period allowed under such
Environmental Law) to violate or results in or threatens (if
the threat requires remediation under any Environmental Law
and is not remediated during any grace period allowed under
such Environmental Law) to result in noncompliance with any
Environmental Law.
"Equipment" shall mean equipment, apparatus,
furnishings, fittings and personal property of every kind and
nature whatsoever purchased, leased or otherwise acquired
using the proceeds of the Loans or the Holder Advances by the
applicable Construction Agent, the applicable Lessee or the
Lessor and all improvements and modifications thereto and
replacements thereof, whether or not now owned or hereafter
acquired or now or subsequently attached to, contained in or
used or usable in any way in connection with any operation of
any Improvements, including but without limiting the
generality of the foregoing, all equipment described in the
Appraisal including without limitation all heating,
electrical, and mechanical equipment, lighting, switchboards,
plumbing, ventilation, air conditioning and air-cooling
apparatus, refrigerating, and incinerating equipment,
escalators, elevators, loading and unloading equipment and
systems, cleaning systems (including without limitation
window cleaning apparatus), telephones, communication systems
(including without limitation satellite dishes and antennae),
televisions, computers, sprinkler systems and other fire
prevention and extinguishing apparatus and materials,
security systems, motors, engines, machinery, pipes, pumps,
tanks, conduits, appliances, fittings and fixtures of every
kind and description.
"Equipment Schedule" shall mean (a) each Equipment
Schedule attached to the applicable Requisition and (b) each
Equipment Schedule attached to the applicable Lease
Supplement.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
"ERISA Affiliate" shall mean each entity required to be
aggregated with any Credit Party pursuant to the requirements
of Section 414(b) or (c) of the Code.
"Eurocurrency Reserve Requirements" shall mean for any
day as applied to a Eurodollar Loan, the aggregate (without
duplication) of the maximum rates (expressed as a decimal) of
reserve requirements in effect on such day (including without
limitation basic, supplemental, marginal and emergency
reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect
thereto) dealing with reserve requirements prescribed on
eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D) maintained by a member bank of
the Federal Reserve System.
"Eurodollar Holder Advance" shall mean a Holder Advance
bearing a Holder Yield based on the Eurodollar Rate.
"Eurodollar Loans" shall mean Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate" shall mean for the Interest Period for
each Eurodollar Loan or Eurodollar Holder Advance comprising
part of the same borrowing or advance (including without
limitation conversions, extensions and renewals), a per annum
interest rate equal to the per annum rate determined by the
Agent on the basis of the offered rates for deposits in
dollars for a period of time corresponding to such Interest
Period (and commencing on the first day of such Interest
Period), reported on Telerate page 3750 as of 11:00 a.m.
(London time) two (2) Business Days before the first day of
such Interest Period. In the event no such offered rates
appear on Telerate page 3750, "Eurodollar Rate" shall mean
for the Interest Period for each Eurodollar Loan or
Eurodollar Holder Advance comprising part of the same
borrowing or advance (including without limitation
conversions, extensions and renewals), a per annum interest
rate equal to the per annum rate determined by the Agent on
the basis of the offered rates for deposits in dollars for a
period of time corresponding to such Interest Period (and
commencing on the first day of such Interest Period), which
appear on the Reuters Screen LIBO Page as of 11:00 a.m.
(London time) two (2) Business Days before the first day of
such Interest Period (provided that if at least two (2) such
offered rates appear on the Reuters Screen LIBO Page, the
rate in respect of such Interest Period will be the
arithmetic mean of such offered rates). As used herein,
"Reuters Screen LIBO Page" means the display designated as
page "LIBO" on the Reuters Monitor Money Rates Service (or
such other page as may replace the LIBO page on that service
for the purpose of displaying London interbank offered rates
of major banks) ("RMMRS"). In the event the RMMRS is not
then quoting such offered rates, "Eurodollar Rate" shall mean
for the Interest Period for each Eurodollar Loan or
Eurodollar Holder Advance comprising part of the same
borrowing or advance (including without limitation
conversions, extensions and renewals), the average (rounded
upward to the nearest one-sixteenth (1/16) of one percent
(1%)) per annum rate of interest determined by the office of
the Agent (each such determination to be conclusive and
binding) as of two (2) Business Days prior to the first day
of such Interest Period, as the effective rate at which
deposits in immediately available funds in U.S. dollars are
being, have been, or would be offered or quoted by the Agent
to major banks in the applicable interbank market for
Eurodollar deposits at any time during the Business Day which
is the second Business Day immediately preceding the first
day of such Interest Period, for a term comparable to such
Interest Period and in the amount of the requested Eurodollar
Loan and/or Eurodollar Holder Advance. If no such offers or
quotes are generally available for such amount, then the
Agent shall be entitled to determine the Eurodollar Rate from
another recognized service or interbank quotation, or by
estimating in its reasonable judgment the per annum rate (as
described above) that would be applicable if such quote or
offers were generally available.
"Event of Default" shall mean a Lease Event of Default,
an Agency Agreement Event of Default or a Credit Agreement
Event of Default.
"Excepted Payments" shall mean:
(a) all indemnity payments (including without
limitation indemnity payments made pursuant to Section
11 of the Participation Agreement), whether made by
adjustment to Basic Rent or otherwise, to which the
Owner Trustee, any Holder or any of their respective
Affiliates, agents, officers, directors or employees is
entitled;
(b) any amounts (other than Basic Rent or
Termination Value) payable under any Operative Agreement
to reimburse the Owner Trustee, any Holder or any of
their respective Affiliates (including without
limitation the reasonable expenses of the Owner Trustee,
the Trust Company and the Holders incurred in connection
with any such payment) for performing or complying with
any of the obligations of any Lessee under and as
permitted by any Operative Agreement;
(c) any amount payable to a Holder by any
transferee of such interest of a Holder as the purchase
price of such Holder's interest in the Trust Estate (or
a portion thereof);
(d) any insurance proceeds (or payments with
respect to risks self-insured or policy deductibles)
under liability policies other than such proceeds or
payments payable to the Agent or any Lender;
(e) any insurance proceeds under policies
maintained by the Owner Trustee or any Holder;
(f) Transaction Expenses or other amounts, fees,
disbursements or expenses paid or payable to or for the
benefit of the Owner Trustee;
(g) any payments in respect of interest to the
extent attributable to payments referred to in clauses
(a) through (f) above; and
(h) any rights of either the Owner Trustee or the
Trust Company to demand, collect, ▇▇▇ for or otherwise
receive and enforce payment of any of the foregoing
amounts, provided that such rights shall not include the
right to terminate the Lease.
"Excess Proceeds" shall mean the excess, if any, of the
aggregate of all awards, compensation or insurance proceeds
payable in connection with a Casualty or Condemnation over
the Termination Value paid by any Lessee pursuant to the
Lease with respect to such Casualty or Condemnation.
"Exculpated Persons" shall mean the Trust Company
(except with respect to the representations and warranties
and the other obligations of the Trust Company pursuant to
the Operative Agreements expressly undertaken in its
individual capacity, including without limitation the
representations and warranties of the Trust Company pursuant
to Section 6.1 of the Participation Agreement, the
obligations of the Trust Company pursuant to Section 8.2 of
the Participation Agreement and the obligations of the Trust
Company pursuant to the Trust Agreement), the Holders (except
with respect to the obligations of the Holders pursuant to
the Participation Agreement and the Trust Agreement expressly
undertaken in their respective individual capacities), their
officers, directors, shareholders and partners.
"Exempt Payments" shall have the meaning specified in
Section 11.2(e) of the Participation Agreement.
"Expiration Date" shall mean the last day of the Term;
provided, in no event shall the Expiration Date be later than
the fifth annual anniversary of the Initial Closing Date,
unless such later date has been expressly agreed to in
writing by each of the Lessor, the Guarantor (on behalf of
each Credit Party), the Agent, the Lenders and the Holders.
"Facility Fee" shall mean, collectively, the Holder
Facility Fee and the Lender Facility Fee.
"Facility Fee Payment Date" shall mean the last Business
Day of each March, June, September and December and the
Expiration Date.
"Fair Market Sales Value" shall mean, with respect to
any Property, the amount, which in any event, shall not be
less than zero (0), that would be paid in cash in an arms-
length transaction between an informed and willing purchaser
and an informed and willing seller, neither of whom is under
any compulsion to purchase or sell, respectively, such
Property. Fair Market Sales Value of any Property shall be
determined based on the assumption that, except for purposes
of Section 17 of the Lease, such Property is in the condition
and state of repair required under Section 10.1 of the Lease
and each Credit Party is in compliance with the other
requirements of the Operative Agreements.
"Federal Funds Effective Rate" shall have the meaning
given to such term in the definition of ABR.
"Financing Parties" shall mean the Lessor, the Owner
Trustee, in its trust capacity, the Agent, the Holders and
the Lenders.
"Fixtures" shall mean all fixtures relating to the
Improvements, including without limitation all components
thereof, located in or on the Improvements, together with all
replacements, modifications, alterations and additions
thereto.
"Force Majeure Event" shall mean any event beyond the
control of the Construction Agent that has executed a Lease
Supplement with respect to a particular Property, other than
a Casualty or Condemnation, including without limitation
strikes, lockouts, adverse soil conditions, acts of God,
adverse weather conditions, inability to obtain labor or
materials, governmental activities, civil commotion and enemy
action; but excluding any event, cause or condition that
results from such Construction Agent's financial condition.
"Form 1001" shall have the meaning specified in Section
11.2(e) of the Participation Agreement.
"Form 4224" shall have the meaning specified in Section
11.2(e) of the Participation Agreement.
"GAAP" means generally accepted accounting principles,
as recognized by the American Institute of Certified Public
Accountants and the Financial Accounting Standards Board,
consistently applied and maintained on a consistent basis for
the Guarantor and its Subsidiaries throughout the period
indicated and consistent with the prior financial practice of
the Guarantor and its Subsidiaries.
"Governmental Action" shall mean all permits,
authorizations, registrations, consents, approvals, waivers,
exceptions, variances, orders, judgments, written
interpretations, decrees, licenses, exemptions, publications,
filings, notices to and declarations of or with, or required
by, any Governmental Authority, or required by any Legal
Requirement, and shall include, without limitation, all
environmental and operating permits and licenses that are
required for the full use, occupancy, zoning and operating of
the Property.
"Governmental Authority" shall mean any nation or
government, any state or other political subdivision thereof
and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
"Ground Lease" shall mean a ground lease (in form and
substance satisfactory to the Agent) respecting any Property
(a) owned by any Credit Party (or a parent corporation or any
Subsidiary of any Credit Party) and leased to the Lessor
where such lease has at least a ninety-nine (99) year term
and payments set at no more than $1.00 per year, or (b) where
such lease is subject to such other terms and conditions as
are satisfactory to the Agent.
"Guarantor" shall mean Performance Food Group Company, a
Tennessee corporation, as guarantor of the Construction
Agents and the Lessees with respect to the Operative
Agreements and the Properties.
"Guaranty Obligation" means, with respect to each Credit
Party and its Subsidiaries, without duplication, any
obligation, contingent or otherwise, of any such Person
pursuant to which such Person has directly or indirectly
guaranteed any Debt or other obligation of any other Person
and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of
any such Person (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or other
obligation (whether arising by virtue of partnership
arrangements, by agreement to keep well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain
financial statement condition or otherwise) or (b) entered
into for the purpose of assuring in any other manner the
obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided, that the term
Guaranty Obligation shall not include endorsements for
collection or deposit in the ordinary course of business.
"Hard Costs" shall mean all costs and expenses payable
for supplies, materials, labor and profit with respect to the
Improvements under any Construction Contract.
"Hazardous Substance" shall mean any of the following:
(a) any petroleum or petroleum product, explosives,
radioactive materials, asbestos, formaldehyde,
polychlorinated biphenyls, lead and radon gas; (b) any
substance, material, product, derivative, compound or
mixture, mineral, chemical, waste, gas, medical waste, or
pollutant, in each case whether naturally occurring, man-made
or the by-product of any process, that is toxic, harmful or
hazardous to the environment or human health or safety as
determined in accordance with any Environmental Law; or (c)
any substance, material, product, derivative, compound or
mixture, mineral, chemical, waste, gas, medical waste or
pollutant that would support the assertion of any claim under
any Environmental Law, whether or not defined as hazardous as
such under any Environmental Law.
"Hedging Agreement" means any agreement with respect to
an interest rate swap, collar, cap, floor or a forward rate
agreement or other agreement regarding the hedging of
interest rate risk exposure executed in connection with
hedging the interest rate exposure of any Credit Party, and
any confirming letter executed pursuant to such hedging
agreement, all as amended, restated or otherwise modified.
"Holder Advance" shall mean any advance made by any
Holder to the Owner Trustee pursuant to the terms of the
Trust Agreement or the Participation Agreement.
"Holder Amount" shall mean as of any date, the aggregate
amount of Holder Advances made by each Holder to the Trust
Estate pursuant to Section 2 of the Participation Agreement
and Section 3.1 of the Trust Agreement less any payments of
any Holder Advances received by the Holders pursuant to
Section 3.4 of the Trust Agreement.
"Holder Commitments" shall mean the Holder Commitment of
each Holder as set forth in Schedule I to the Trust Agreement
as such Schedule I may be amended and replaced from time to
time.
"Holder Construction Property Cost" shall mean, with
respect to each Construction Period Property, at any date of
determination, an amount equal to the outstanding Holder
Advances made with respect thereto under the Trust Agreement.
"Holder Overdue Rate" shall mean the lesser of (a) the
then current rate of Holder Yield respecting the particular
amount in question plus two percent (2%) and (b) the highest
rate permitted by applicable law.
"Holder Property Cost" shall mean with respect to a
Property an amount equal to the outstanding Holder Advances
with respect thereto.
"Holder Facility Fee" shall have the meaning given to
such term in Section 7.4 of the Participation Agreement.
"Holder Yield" shall mean with respect to Holder
Advances from time to time either the Eurodollar Rate plus
the Applicable Percentage or the ABR as elected by the Owner
Trustee from time to time with respect to such Holder
Advances in accordance with the terms of the Trust Agreement;
provided, however, (a) upon delivery of the notice described
in Section 3.7(c) of the Trust Agreement, the outstanding
Holder Advances of each Holder shall bear a yield at the ABR
applicable from time to time from and after the dates and
during the periods specified in Section 3.7(c) of the Trust
Agreement, and (b) upon the delivery by a Holder of the
notice described in Section 11.3(f) of the Participation
Agreement, the Holder Advances of such Holder shall bear a
yield at the ABR applicable from time to time after the dates
and during the periods specified in Section 11.3(f) of the
Participation Agreement.
"Holders" shall mean First Union National Bank and shall
include the other banks and financial institutions which may
be from time to time holders of Certificates in connection
with the PFG Real Estate Trust 2000-1.
Impositions" shall mean any and all liabilities, losses,
expenses, costs, charges and Liens of any kind whatsoever for
fees, taxes, levies, imposts, duties, charges, assessments or
withholdings ("Taxes") including but not limited to (i) real
and personal property taxes, including without limitation
personal property taxes on any property covered by the Lease
that is classified by Governmental Authorities as personal
property, and real estate or ad valorem taxes in the nature
of property taxes; (ii) sales taxes, use taxes and other
similar taxes (including rent taxes and intangibles taxes);
(iii) excise taxes; (iv) real estate transfer taxes,
conveyance taxes, stamp taxes and documentary recording taxes
and fees; (v) taxes that are or are in the nature of
franchise, income, value added, privilege and doing business
taxes, license and registration fees; (vi) assessments on any
Property, including without limitation all assessments for
public Improvements or benefits, whether or not such
improvements are commenced or completed within the Term; and
(vii) taxes, Liens, assessments or charges asserted, imposed
or assessed by the PBGC or any governmental authority
succeeding to or performing functions similar to, the PBGC;
and in each case all interest, additions to tax and penalties
thereon, which at any time prior to, during or with respect
to the Term or in respect of any period for which any Credit
Party shall be obligated to pay Supplemental Rent, may be
levied, assessed or imposed by any Governmental Authority
upon or with respect to (a) any Property or any part thereof
or interest therein; (b) the leasing, financing, refinancing,
demolition, construction, substitution, subleasing,
assignment, control, condition, occupancy, servicing,
maintenance, repair, ownership, possession, activity
conducted on, delivery, insuring, use, operation,
improvement, sale, transfer of title, return or other
disposition of such Property or any part thereof or interest
therein; (c) the Notes, other indebtedness with respect to
any Property, or the Certificates, or any part thereof or
interest therein; (d) the rentals, receipts or earnings
arising from any Property or any part thereof or interest
therein; (e) the Operative Agreements, the performance
thereof, or any payment made or accrued pursuant thereto; (f)
the income or other proceeds received with respect to any
Property or any part thereof or interest therein upon the
sale or disposition thereof; (g) any contract (including the
Agency Agreement) relating to the construction, acquisition
or delivery of the Improvements or any part thereof or
interest therein; (h) the issuance of the Notes or the
Certificates; (i) the Owner Trustee, the Trust or the Trust
Estate; or (j) otherwise in connection with the transactions
contemplated by the Operative Agreements.
"Improvements" shall mean, with respect to the
construction, renovations and/or Modifications on any Land,
all buildings, structures, Fixtures, and other improvements
of every kind existing at any time and from time to time on
or under the Land purchased or otherwise acquired using the
proceeds of the Loans or the Holder Advances or which is
subject to a Ground Lease, together with any and all
appurtenances to such buildings, structures or improvements,
including without limitation sidewalks, utility pipes,
conduits and lines, parking areas and roadways, and including
without limitation all Modifications and other additions to
or changes in the Improvements at any time, including without
limitation (a) any Improvements existing as of the Property
Closing Date as such Improvements may be referenced on the
applicable Requisition and (b) any Improvements made
subsequent to such Property Closing Date.
"Incorporated Covenants" shall have the meaning given to
such term in Section 28.1 of the Lease.
"Incorporated Representations and Warranties" shall have
the meaning given to such term in Section 28.1 of the Lease.
"Indebtedness" of any Person shall mean the Debt of such
Person.
"Indemnified Person" shall mean the Lessor, the Owner
Trustee, in its individual and its trust capacity, the Trust,
the Trust Company, the Agent, First Union Securities, Inc.,
the Holders, the Lenders and their respective successors,
assigns, directors, shareholders, partners, officers,
employees, agents and Affiliates.
"Indemnity Provider" shall mean (a) to the extent the
matter giving rise to the particular indemnity claim relates
to a particular Property, the applicable Lessee respecting
such Property, and (b) to the extent the matter giving rise
to the particular indemnity claim does not relate to a
particular Property, the Guarantor.
"Initial Closing Date" shall mean June 9, 2000.
"Initial Construction Advance" shall mean any initial
Advance to pay for: (a) Property Costs for construction of
any Improvements; and (b) the Property Costs of restoring or
repairing any Property which is required to be restored or
repaired in accordance with Section 15.1(e) of the Lease.
"Instruments" shall have the meaning given to such term
in Section 1 of the Security Agreement.
"Insurance Requirements" shall mean all terms and
conditions of any insurance policy either required by the
Lease to be maintained by any Lessee or required by the
Agency Agreement to be maintained by any Construction Agent,
and all requirements of the issuer of any such policy and,
regarding self insurance, any other requirements of the
applicable Lessee.
"Interest Period" shall mean during the Commitment
Period and thereafter as to any Eurodollar Loan or Eurodollar
Holder Advance (i) with respect to the initial Interest
Period, the period beginning on the date of the first
Eurodollar Loan and Eurodollar Holder Advance and ending one
(1) month, two (2) months, three (3) months or (to the extent
available to all Lenders and all Holders) six (6) months
thereafter, as selected by the Lessor (in the case of a
Eurodollar Loan) or the Owner Trustee (in the case of a
Eurodollar Holder Advance) in its applicable notice given
with respect thereto and (ii) thereafter, each period
commencing on the last day of the next preceding Interest
Period applicable to such Eurodollar Loan or Eurodollar
Holder Advance and ending one (1) month, two (2) months,
three (3) months or (to the extent available to all Lenders
and all Holders) six (6) months thereafter, as selected by
the Lessor by irrevocable notice to the Agent (in the case of
a Eurodollar Loan) or by the Owner Trustee (in the case of a
Eurodollar Holder Advance) in each case not less than three
(3) Business Days prior to the last day of the then current
Interest Period with respect thereto; provided, however, that
all of the foregoing provisions relating to Interest Periods
are subject to the following: (A) if any Interest Period
would end on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day
(except that where the next succeeding Business Day falls in
the next succeeding calendar month, then on the next
preceding Business Day), (B) no Interest Period shall extend
beyond the Maturity Date or the Expiration Date, as the case
may be, (C) where an Interest Period begins on a day for
which there is no numerically corresponding day in the
calendar month in which the Interest Period is to end, such
Interest Period shall end on the last Business Day of such
calendar month, (D) there shall not be more than four (4)
Interest Periods outstanding at any one (1) time.
"Investment Company Act" shall mean the Investment
Company Act of 1940, as amended, together with the rules and
regulations promulgated thereunder.
"Issuing Lender" means First Union, in its capacity as
issuer of any Letter of Credit, or any successor thereto.
"Land" shall mean a parcel of real property described on
(a) the Requisition issued by the Construction Agent on the
Property Closing Date relating to such parcel and (b) the
schedules to each applicable Lease Supplement executed and
delivered in accordance with the requirements of Section 2.4
of the Lease.
"Land Cost" shall have the meaning specified in Section
5.4 of the Agency Agreement.
"Law" shall mean any statute, law, ordinance,
regulation, rule, directive, order, writ, injunction or
decree of any Tribunal.
"Lease" or "Lease Agreement" shall mean the Lease
Agreement dated on or about the Initial Closing Date, between
the Lessor and the Lessees, together with each Lease
Supplement (and the related memorandum of Lease and such
Lease Supplement) thereto.
"Lease Default" shall mean any event or condition which,
with the lapse of time or the giving of notice, or both,
would constitute a Lease Event of Default.
"Lease Event of Default" shall have the meaning
specified in Section 17.1 of the Lease.
"Lease Supplement" shall mean each Lease Supplement
substantially in the form of EXHIBIT A to the Lease, together
with all attachments and schedules thereto.
"Legal Requirements" shall mean all foreign, federal,
state, county, municipal and other governmental statutes,
laws, rules, orders, regulations, ordinances, judgments,
decrees and injunctions affecting the Owner Trustee, any
Holder, the Lessor, any Credit Party, the Agent, any Lender
or any Property, Land, Improvement, Equipment or the
taxation, demolition, construction, use or alteration of such
Improvements, whether now or hereafter enacted and in force,
including without limitation any that require repairs,
modifications or alterations in or to any Property or in any
way limit the use and enjoyment thereof (including without
limitation all building, zoning and fire codes and the
Americans with Disabilities Act of 1990, 42 U.S.C. 12101
et. seq., and any other similar federal, state or local laws
or ordinances and the regulations promulgated thereunder) and
any that may relate to environmental requirements (including
without limitation all Environmental Laws), and all permits,
certificates of occupancy, licenses, authorizations and
regulations relating thereto, and all covenants, agreements,
restrictions and encumbrances contained in any instruments
which are either of record or known to any Credit Party
affecting any Property or the Appurtenant Rights.
"Lender Commitments" shall mean the Lender Commitment of
each Lender as set forth in Schedule 2.1 to the Credit
Agreement as such Schedule 2.1 may be amended and replaced
from time to time.
"Lender Financing Statements" shall mean UCC financing
statements and fixture filings appropriately completed and
executed for filing in the applicable jurisdiction in order
to procure a security interest in favor of the Agent in the
Collateral subject to the Security Documents.
"Lender Facility Fee" shall have the meaning given to
such term in Section 7.4 of the Participation Agreement.
"Lenders" shall mean First Union National Bank and shall
include the other banks and financial institutions which may
be from time to time party to the Participation Agreement and
the Credit Agreement.
"Lessee" shall mean any Eligible Lessee designated as
lessee in any Lease Supplement respecting any Property;
provided, such Eligible Lessee shall also have executed a
Lessee Joinder or is otherwise a party to certain of the
Operative Agreements as lessee by execution thereof on or
prior to the Initial Closing Date.
"Lessee Joinder" shall mean a joinder agreement, in the form
of Schedule 5.3(n)(ii) to the Participation Agreement,
executed from time to time between an Eligible Lessee and the
Agent.
"Lessee Credit Agreement" shall mean that certain Credit
Agreement dated as of March 5, 1999 among the Guarantor and
the lenders referred to therein and First Union National
Bank, as Administrative Agent, as such may hereafter be
amended, modified, supplemented, restated and/or replaced
from time to time.
"Lessee Credit Agreement Event of Default" shall mean an
Event of Default as defined in Article XI of the Lessee
Credit Agreement.
"Lessor" shall mean the Owner Trustee, not in its
individual capacity, but as the Lessor under the Lease.
"Lessor Basic Rent" shall mean the scheduled Holder
Yield due on the Holder Advances on any Scheduled Interest
Payment Date pursuant to the Trust Agreement (but not
including interest on (a) any such scheduled Holder Yield due
on the Holder Advances prior to the Rent Commencement Date
with respect to the Property to which such Holder Advances
relate or (b) overdue amounts under the Trust Agreement or
otherwise).
"Lessor Financing Statements" shall mean UCC financing
statements and fixture filings appropriately completed and
executed for filing in the applicable jurisdictions in order
to protect the Lessor's interest under the Lease to the
extent the Lease is a security agreement or a mortgage.
"Lessor Lien" shall mean any Lien, true lease or
sublease or disposition of title arising as a result of (a)
any claim against the Lessor or the Trust Company, in its
individual capacity, not resulting from the transactions
contemplated by the Operative Agreements, (b) any act or
omission of the Lessor or the Trust Company, in its
individual capacity, which is not required by the Operative
Agreements or is in violation of any of the terms of the
Operative Agreements, (c) any claim against the Lessor or the
Trust Company, in its individual capacity, with respect to
Taxes or Transaction Expenses against which no Lessee is
required to indemnify the Lessor or the Trust Company, in its
individual capacity, pursuant to Section 11 of the
Participation Agreement or (d) any claim against the Lessor
arising out of any transfer by the Lessor of all or any
portion of the interest of the Lessor in the Properties, the
Trust Estate or the Operative Agreements other than the
transfer of title to or possession of any Properties by the
Lessor pursuant to and in accordance with the Lease, the
Credit Agreement, the Security Agreement or the Participation
Agreement or pursuant to the exercise of the remedies set
forth in Article XVII of the Lease.
"Letters of Credit" shall have the meaning assigned
thereto in Section 3.1 of the Lessee Credit Agreement.
"Leverage Ratio" shall mean the ratio of Total Debt to
Capitalization.
"Lien" shall mean any mortgage, pledge, security
interest, encumbrance, lien, option or charge of any kind.
"Limited Recourse Amount" shall mean with respect to all
the Properties on an aggregate basis, an amount equal to the
sum of the Termination Values with respect to all the
Properties on an aggregate basis on each Payment Date, less
the Maximum Residual Guarantee Amount as of such date with
respect to all the Properties on an aggregate basis.
"Loan Basic Rent" shall mean the scheduled interest due
on the Loans on any Scheduled Interest Payment Date pursuant
to the Credit Agreement (but not including interest on (a)
any such Loan due prior to the Rent Commencement Date with
respect to the Property to which such Loan relates or (b) any
overdue amounts under Section 2.8(b) of the Credit Agreement
or otherwise).
"Loan Property Cost" shall mean, with respect to each
Property at any date of determination, an amount equal to (a)
the aggregate principal amount all Loans (including without
limitation all Acquisition Loans and Construction Loans) made
on or prior to such date with respect to such Property minus
(b) the aggregate amount of prepayments or repayments as the
case may be of the Loans allocated to reduce the Loan
Property Cost of such Property pursuant to Section 2.6(c) of
the Credit Agreement.
"Loans" shall mean the loans extended pursuant to the
Credit Agreement.
"Majority Holders" shall mean at any time, Holders whose
Holder Advances outstanding represent at least sixty-six and
two thirds percent (66 2/3%) of (a) the aggregate Holder
Advances outstanding or (b) to the extent there are no Holder
Advances outstanding, the aggregate Holder Commitments.
"Majority Lenders" shall mean at any time, Lenders whose
Loans outstanding represent at least sixty-six and two thirds
percent (66 2/3%) of (a) the aggregate Loans outstanding or
(b) to the extent there are no Loans outstanding, the
aggregate of the Lender Commitments.
"Majority Secured Parties" shall mean at any time,
Lenders and Holders whose Loans and Holder Advances
outstanding represent at least sixty-six and two thirds
percent (66 2/3%) of (a) the aggregate Advances outstanding
or (b) to the extent there are no Advances outstanding, the
sum of the aggregate Holder Commitments plus the aggregate
Lender Commitments.
"Marketing Period" shall mean, if the Lessee has given a
Sale Notice in accordance with Section 20.1 of the Lease, the
period commencing on the date such Sale Notice is given and
ending on the Expiration Date.
"Material Adverse Effect" shall, mean a material adverse
effect on (a) the business, condition (financial or
otherwise), assets, liabilities or operations of the Credit
Parties, (b) the ability of any Credit Party to perform its
respective obligations under any Operative Agreement to which
it is a party, (c) the validity or enforceability of any
Operative Agreement or the rights and remedies of the Agent,
the Lenders, the Holders, or the Lessor thereunder, (d) the
validity, priority or enforceability of any Lien on any
Property created by any of the Operative Agreements, or (e)
the value, utility or useful life of any Property or the use,
or ability of the Lessee that has executed a Lease Supplement
with respect to any particular Property to use, such Property
for the purpose for which it was intended.
"Maturity Date" shall mean the Expiration Date.
"Maximum Residual Guarantee Amount" shall mean an amount
equal to the product of the aggregate Property Cost for all
of Properties times eighty-five percent (85%).
"Modifications" shall have the meaning specified in
Section 11.1(a) of the Lease.
"Mortgage Instrument" shall mean any mortgage, deed of
trust or any other instrument executed by the Owner Trustee
and the Lessee that has executed a Lease Supplement
respecting a particular Property (or regarding any Property
subject to a Ground Lease, the applicable Affiliate of such
Lessee) in favor of the Agent (for the benefit of the Lenders
and the Holders) and evidencing a Lien on the Property, in
form and substance reasonably acceptable to the Agent.
"Multiemployer Plan" shall mean any plan described in
Section 4001(a)(3) of ERISA to which contributions are or
have been made or required by any Credit Party or any of its
Subsidiaries or ERISA Affiliates.
"Multiple Employer Plan" shall mean a plan to which any
Credit Party or any ERISA Affiliate and at least one (1)
other employer other than an ERISA Affiliate is making or
accruing an obligation to make, or has made or accrued an
obligation to make, contributions.
"New Facility" shall have the meaning given to such term
in Section 28.1 of the Lease.
"New Jersey ELLF" shall have the meaning given to such
term in Section 5.11 of the Participation Agreement.
"Notes" shall mean those notes issued to the Lenders
pursuant to the Credit Agreement and shall include both the
Tranche A Notes and the Tranche B Notes.
"Obligations" shall have the meaning given to such term
in Section 1 of the Security Agreement.
"Officer's Certificate" with respect to any person shall
mean a certificate executed on behalf of such person by a
Responsible Officer who has made or caused to be made such
examination or investigation as is necessary to enable such
Responsible Officer to express an informed opinion with
respect to the subject matter of such Officer's Certificate.
"Officer's Compliance Certificate" shall have the
meaning given to such term in Section 7.2 of the Lessee
Credit Agreement.
"Operative Agreements" shall mean the following: the
Participation Agreement, the Agency Agreement, the Trust
Agreement, the Certificates, the Credit Agreement, the Notes,
the Lease, the Lease Supplements (and memoranda of the Lease
and each Lease Supplement in a form reasonably acceptable to
the Agent), the Security Agreement, the Mortgage Instruments,
the other Security Documents, the Ground Leases, the Deeds
and the Bills of Sale and any and all other agreements,
documents and instruments executed in connection with any of
the foregoing.
"Original Executed Counterpart" shall have the meaning
given to such term in Section 5 of EXHIBIT A to the Lease.
"Overdue Interest" shall mean any interest payable
pursuant to Section 2.8(b) of the Credit Agreement.
"Overdue Rate" shall mean (a) with respect to the Loan
Basic Rent, and any other amount owed under or with respect
to the Credit Agreement or the Security Documents, the rate
specified in Section 2.8(b) of the Credit Agreement, (b) with
respect to the Lessor Basic Rent, the Holder Yield and any
other amount owed under or with respect to the Trust
Agreement, the Holder Overdue Rate, and (c) with respect to
any other amount, the amount referred to in clause (y) of
Section 2.8(b) of the Credit Agreement.
"Owner Trustee," "Borrower" or "Lessor" shall mean First
Security Bank, National Association, not individually, except
as expressly stated in the various Operative Agreements, but
solely as the Owner Trustee under the PFG Real Estate Trust
2000-1, and any successor, replacement and/or additional
Owner Trustee expressly permitted under the Operative
Agreements.
"Participant" shall have the meaning given to such term
in Section 9.7 of the Credit Agreement.
"Participation Agreement" shall mean the Participation
Agreement dated on or about the Initial Closing Date, among
the Lessees, the Guarantor, the Owner Trustee, not in its
individual capacity except as expressly stated therein, the
Holders, the Lenders and the Agent.
"Payment Date" shall mean any Scheduled Interest Payment
Date and any date on which interest or Holder Yield in
connection with a prepayment of principal on the Loans or of
the Holder Advances is due under the Credit Agreement or the
Trust Agreement.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation created by Section 4002(a) of ERISA or any
successor thereto.
"Pension Plan" shall mean a "pension plan", as such term
is defined in section 3(2) of ERISA, which is subject to
title IV of ERISA (other than a Multiemployer Plan), and to
which any Credit Party or any ERISA Affiliate may have any
liability, including without limitation any liability by
reason of having been a substantial employer within the
meaning of section 4063 of ERISA at any time during the
preceding five (5) years, or by reason of being deemed to be
a contributing sponsor under section 4069 of ERISA.
"Permitted Facility" shall mean a warehouse and
distribution facility or a headquarters facility of the type
and size customarily used and operated by the applicable
Lessee in its ordinary course of business as of the Initial
Closing Date.
"Permitted Liens" shall mean:
(a) the respective rights and interests of the
parties to the Operative Agreements as provided in the
Operative Agreements;
(b) the rights of any sublessee or assignee under
a sublease or an assignment expressly permitted by the
terms of the Lease for no longer than the duration of
the Lease;
(c) Liens for Taxes that either are not yet due or
are being contested in accordance with the provisions of
Section 13.1 of the Lease;
(d) Liens arising by operation of law,
materialmen's, mechanics', workmen's, repairmen's,
employees', carriers', warehousemen's and other like
Liens relating to the construction of the Improvements
or in connection with any Modifications or arising in
the ordinary course of business for amounts that either
are not more than thirty (30) days past due or are being
diligently contested in good faith by appropriate
proceedings, so long as such proceedings satisfy the
conditions for the continuation of proceedings to
contest Taxes set forth in Section 13.1 of the Lease;
(e) Liens of any of the types referred to in
clause (d) above that have been bonded for not less than
the full amount in dispute (or as to which other
security arrangements satisfactory to the Lessor and the
Agent have been made), which bonding (or arrangements)
shall comply with applicable Legal Requirements, and
shall have effectively stayed any execution or
enforcement of such Liens;
(f) Liens arising out of judgments or awards with
respect to which appeals or other proceedings for review
are being prosecuted in good faith and for the payment
of which adequate reserves have been provided as
required by GAAP or other appropriate provisions have
been made, so long as such proceedings have the effect
of staying the execution of such judgments or awards and
satisfy the conditions for the continuation of
proceedings to contest Taxes set forth in Section 13.1
of the Lease; and
(g) Liens in favor of municipalities to the extent
agreed to by the Lessor.
"Person" shall mean any individual, corporation,
partnership, limited liability company, joint venture,
association, joint stock company, trust, unincorporated
organization, governmental authority or any other entity.
"PFG" shall mean Performance Food Group Company, a
Tennessee corporation, and its successors and permitted
assigns.
"PFG Real Estate Trust 2000-1" shall mean the grantor
trust created pursuant to the terms and conditions of the
Trust Agreement.
"Plans and Specifications" shall mean, with respect to
Improvements, the plans and specifications for such
Improvements to be constructed or already existing, as such
Plans and Specifications may be amended, modified or
supplemented from time to time in accordance with the terms
of the Operative Agreements.
"Prime Lending Rate" shall have the meaning given to
such term in the definition of ABR.
"Property" shall mean, with respect to each Permitted
Facility that is (or is to be) acquired, constructed and/or
renovated pursuant to the terms of the Operative Agreements,
the Land and each item of Equipment and the various
Improvements, in each case located on such Land, including
without limitation each Construction Period Property, each
Property subject to a Ground Lease and each Property for
which the Term has commenced.
"Property Acquisition Cost" shall mean the cost to the
Lessor to purchase a Property on a Property Closing Date.
"Property Closing Date" shall mean the date on which the
Lessor purchases a Property or, with respect to the first
Advance, the date on which the Lessor seeks reimbursement for
Property previously purchased by the Lessor.
"Property Cost" shall mean with respect to a Property
the aggregate amount (and/or the various items and
occurrences giving rise to such amounts) of the Loan Property
Cost plus the Holder Property Cost for such Property (as such
amounts shall be increased equally among all Properties
respecting the Holder Advances and the Loans extended from
time to time to pay for the Transaction Expenses, fees,
expenses and other disbursements referenced in Sections
7.1(a) and 7.1(b) of the Participation Agreement).
"Purchase Option" shall have the meaning given to such
term in Section 20.1 of the Lease.
"Purchasing Lender" shall have the meaning given to such
term in Section 9.8(a) of the Credit Agreement.
"Register" shall have the meaning given to such term in
Section 9.9(a) of the Credit Agreement.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System (or any successor),
as the same may be modified and supplemented and in effect
from time to time.
"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System (or any successor),
as the same may be modified and supplemented and in effect
from time to time.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System (or any successor),
as the same may be modified and supplemented and in effect
from time to time.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System (or any successor),
as the same may be modified and supplemented and in effect
from time to time.
"Reimbursement Obligation" means the obligation of the
Guarantor to reimburse the Issuing Lender pursuant to Section
3.5 of the Lessee Credit Agreement for amounts drawn under
Letters of Credit.
"Release" shall mean any release, pumping, pouring,
emptying, injecting, escaping, leaching, dumping, seepage,
spill, leak, flow, discharge, disposal or emission of a
Hazardous Substance.
"Rent" shall mean, collectively, the Basic Rent and the
Supplemental Rent, in each case payable under the Lease.
"Rent Commencement Date" shall mean, regarding each
Property, the Completion Date.
"Reportable Event" shall have the meaning specified in
ERISA.
"Requested Funds" shall mean any funds requested by any
Lessee or any Construction Agent, as applicable, in
accordance with Section 5 of the Participation Agreement.
"Requisition" shall have the meaning specified in
Section 4.2 of the Participation Agreement.
"Responsible Officer" shall mean the Chairman or Vice
Chairman of the Board of Directors, the Chairman or Vice
Chairman of the Executive Committee of the Board of
Directors, the President, any Senior Vice President or
Executive Vice President, any Vice President, the Secretary,
any Assistant Secretary, the Treasurer, or any Assistant
Treasurer, except that when used with respect to the Trust
Company or the Owner Trustee, "Responsible Officer" shall
also include the Cashier, any Assistant Cashier, any Trust
Officer or Assistant Trust Officer, the Controller and any
Assistant Controller or any other officer of the Trust
Company or the Owner Trustee customarily performing functions
similar to those performed by any of the above designated
officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter
is referred because of his knowledge of and familiarity with
the particular subject.
"Sale Date" shall have the meaning given to such term in
Section 20.3(a) of the Lease.
"Sale Notice" shall mean a notice given to the Lessor in
connection with the election by the Lessees of the Sale
Option.
"Sale Option" shall have the meaning given to such term
in Section 20.1 of the Lease.
"Sale Proceeds Shortfall" shall mean the amount by which
the proceeds of a sale described in Section 22.1 of the Lease
are less than the Limited Recourse Amount with respect to the
Properties if it has been determined that the Fair Market
Sales Value of the Properties at the expiration of the term
of the Lease has been impaired by greater than ordinary wear
and tear during the Term of the Lease.
"Scheduled Interest Payment Date" shall mean (a) as to
any Eurodollar Loan or Eurodollar Holder Advance, the last
day of the Interest Period applicable to such Eurodollar Loan
or Eurodollar Holder Advance (or respecting any Eurodollar
Loan or Eurodollar Holder Advance having an Interest Period
of six (6) months, the three (3) month anniversary of such
Interest Period), (b) as to any ABR Loan or any ABR Holder
Advance, the fifteenth day of each month, unless such day is
not a Business Day and in such case on the next occurring
Business Day and (c) as to all Loans and Holder Advances, the
date of any voluntary or involuntary payment, prepayment,
return or redemption, and the Maturity Date or the Expiration
Date, as the case may be.
"Secured Parties" shall have the meaning given to such
term in the Security Agreement.
"Securities Act" shall mean the Securities Act of 1933,
as amended, together with the rules and regulations
promulgated thereunder.
"Security Agreement" shall mean the Security Agreement
dated on or about the Initial Closing Date between the Lessor
and the Agent, for the benefit of the Secured Parties, and
accepted and agreed to by the Lessees.
"Security Documents" shall mean the collective reference
to the Security Agreement, the Mortgage Instruments, (to the
extent the Lease is construed as a security instrument) the
Lease, the UCC Financing Statements and all other security
documents hereafter delivered to the Agent granting a lien on
any asset or assets of any Person to secure the obligations
and liabilities of the Lessor under the Credit Agreement
and/or under any of the other Credit Documents or to secure
any guarantee of any such obligations and liabilities.
"Soft Costs" shall mean all costs which are ordinarily
and reasonably incurred in relation to the acquisition,
development, installation, construction, improvement and
testing of the Properties other than Hard Costs, including
without limitation structuring fees, administrative fees,
legal fees, upfront fees, fees and expenses related to
appraisals, title examinations, title insurance, document
recordation, surveys, environmental site assessments,
geotechnical soil investigations and similar costs and
professional fees customarily associated with a real estate
closing, the Lender Facility Fee, the Holder Facility Fee,
fees and expenses of the Owner Trustee payable or
reimbursable under the Operative Agreements and costs and
expenses incurred pursuant to Sections 7.3(a) and 7.3(b) of
the Participation Agreement.
"Stockholders' Equity" means, as of any date of
determination, the shareholders' equity of the Guarantor and
its Subsidiaries, as set forth or reflected on the most
recent Consolidated balance sheet of the Guarantor and its
Subsidiaries prepared in accordance with GAAP, (a) including
but not limited to (i) the par or stated value of all
outstanding Capital Stock, (ii) capital surplus, (iii)
retained earnings and (b) excluding items such as (i)
purchases of treasury stock, (ii) valuation allowances, (iii)
receivables due from an employee stock ownership plan, (iv)
employee stock ownership plan debt guarantees (to the extent
not included in item (b)(iii) hereof) and (v) translation
adjustments for foreign currency transactions.
"Subsidiary" shall mean, as to any Person, any
corporation of which at least a majority of the outstanding
stock having by the terms thereof ordinary voting power to
elect a majority of the board of directors of such
corporation (irrespective of whether or not at the time stock
of any other class or classes of such corporation shall have
or might have voting power by reason of the happening of any
contingency) is at the time owned by such Person, or by one
(1) or more Subsidiaries, or by such Person and one (1) or
more Subsidiaries.
"Supplemental Amounts" shall have the meaning given to
such term in Section 9.18 of the Credit Agreement.
"Supplemental Rent" shall mean all amounts, liabilities
and obligations (other than Basic Rent) which any particular
Lessee assumes or agrees to pay to the Lessor, the Trust
Company, the Holders, the Agent, the Lenders or any other
Person under the Lease or under any of the other Operative
Agreements including without limitation payments of the
Termination Value and the Maximum Residual Guarantee Amount
and all indemnification amounts, liabilities and obligations.
"Taxes" shall have the meaning specified in the
definition of "Impositions".
"Term" shall have the meaning specified in Section 2.2
of the Lease.
"Termination Date" shall have the meaning specified in
Section 16.2(a) of the Lease.
"Termination Event" shall mean (a) with respect to any
Pension Plan, the occurrence of a Reportable Event or an
event described in Section 4062(e) of ERISA, (b) the
withdrawal of any Credit Party or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a
substantial employer (as such term is defined in Section
4001(a)(2) of ERISA), or the termination of a Multiple
Employer Plan, (c) the distribution of a notice of intent to
terminate a Plan or Multiemployer Plan pursuant to Section
4041(a)(2) or 4041A of ERISA, (d) the institution of
proceedings to terminate a Plan or Multiemployer Plan by the
PBGC under Section 4042 of ERISA, (e) any other event or
condition which might constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan or Multiemployer Plan, or (f)
the complete or partial withdrawal of any Credit Party or any
ERISA Affiliate from a Multiemployer Plan.
"Termination Notice" shall have the meaning specified in
Section 16.1 of the Lease.
"Termination Value" shall mean the sum of (a) either (i)
with respect to all Properties, an amount equal to the
aggregate outstanding Property Cost for all the Properties,
in each case as of the last occurring Payment Date, or (ii)
with respect to a particular Property, an amount equal to the
Property Cost allocable to such Property, plus (b) respecting
the amounts described in each of the foregoing subclause (i)
or (ii), as applicable, any and all accrued but unpaid
interest on the Loans and any and all Holder Yield on the
Holder Advances related to the applicable Property Cost, plus
(c) to the extent the same is not duplicative of the amounts
payable under clause (b) above, all other Rent and other
amounts then due and payable or accrued under the Agency
Agreement, Lease and/or under any other Operative Agreement
(including without limitation amounts under Sections 11.1 and
11.2 of the Participation Agreement and all costs and
expenses referred to in clause FIRST of Section 22.2 of the
Lease).
"Total Debt" means, as of any date of determination with
respect to the Guarantor and its Subsidiaries on a
Consolidated basis without duplication, the sum of (a) Debt
plus (b) all outstanding indebtedness obligations actually
incurred under or on account of any ELLF, each in accordance
with GAAP.
"Tranche A Commitments" shall mean the obligation of the
Tranche A Lenders to make the Tranche A Loans to the Lessor
in an aggregate principal amount at any one (1) time
outstanding not to exceed the aggregate of the amounts set
forth opposite each Tranche A Lender's name on Schedule 2.1
to the Credit Agreement, as such amount may be increased or
reduced from time to time in accordance with the provisions
of the Operative Agreements; provided, no Tranche A Lender
shall be obligated to make Tranche A Loans in excess of such
Tranche A Lender's share of the Tranche A Commitments as set
forth adjacent to such Tranche A Lender's name on Schedule
2.1 to Credit Agreement.
"Tranche A Lenders" shall mean First Union National Bank
and shall include the several banks and other financial
institutions from time to time party to the Credit Agreement
that commit to make the Tranche A Loans.
"Tranche A Loans" shall mean the Loans made pursuant to
the Tranche A Commitment.
"Tranche A Note" shall have the meaning given to it in
Section 2.2 of the Credit Agreement.
"Tranche B Commitments" shall mean the obligation of the
Tranche B Lenders to make the Tranche B Loans to the Lessor
in an aggregate principal amount at any one (1) time
outstanding not to exceed the aggregate of the amounts set
forth opposite each Tranche B Lender's name on Schedule 2.1
to the Credit Agreement, as such amount may be increased or
reduced from time to time in accordance with the provisions
of the Operative Agreements; provided, no Tranche B Lender
shall be obligated to make Tranche B Loans in excess of such
Tranche B Lender's share of the Tranche B Commitments as set
forth adjacent to such Tranche B Lender's name on Schedule
2.1 to Credit Agreement.
"Tranche B Lenders" shall mean First Union National Bank
and shall include the several banks and other financial
institutions from time to time party to the Credit Agreement
that commit to make the Tranche B Loans.
"Tranche B Loan" shall mean the Loans made pursuant to
the Tranche B Commitment.
"Tranche B Note" shall have the meaning given to it in
Section 2.2 of the Credit Agreement.
"Transaction Expenses" shall mean all Soft Costs and all
other costs and expenses incurred in connection with the
preparation, execution and delivery of the Operative
Agreements and the transactions contemplated by the Operative
Agreements including without limitation all costs and
expenses described in Section 7.1 of the Participation
Agreement and the following:
(a) the reasonable fees, out-of-pocket expenses
and disbursements of counsel in negotiating the terms of
the Operative Agreements and the other transaction
documents, preparing for the closings under, and
rendering opinions in connection with, such transactions
and in rendering other services customary for counsel
representing parties to transactions of the types
involved in the transactions contemplated by the
Operative Agreements;
(b) the reasonable fees, out-of-pocket expenses
and disbursements of accountants for any Credit Party in
connection with the transactions contemplated by the
Operative Agreements;
(c) any and all other reasonable fees, charges or
other amounts payable to the Lenders, the Agent, the
Holders, the Owner Trustee or any broker which arises
under any of the Operative Agreements;
(d) any other reasonable fee, out-of-pocket
expenses, disbursement or cost of any party to the
Operative Agreements or any of the other transaction
documents; and
(e) any and all Taxes and fees incurred in
recording or filing any Operative Agreement or any other
transaction document, any deed, declaration, mortgage,
security agreement, notice or financing statement with
any public office, registry or governmental agency in
connection with the transactions contemplated by the
Operative Agreement.
"Tribunal" shall mean any state, commonwealth, federal,
foreign, territorial, or other court or government body,
subdivision agency, department, commission, board, bureau or
instrumentality of a governmental body.
"Trust" shall mean the PFG Real Estate Trust 2000-1.
"Trust Agreement" shall mean the Trust Agreement dated
on or about the Initial Closing Date between the Holders and
the Owner Trustee.
"Trust Company" shall mean First Security Bank, National
Association, in its individual capacity, and any successor
owner trustee under the Trust Agreement in its individual
capacity.
"Trust Estate" shall have the meaning specified in
Section 2.2 of the Trust Agreement.
"Type" shall mean, as to any Loan, whether it is an ABR
Loan or a Eurodollar Loan.
"UCC Financing Statements" shall mean collectively the
Lender Financing Statements and the Lessor Financing
Statements.
"Unanimous Vote Matters" shall have the meaning given it
in Section 12.4 of the Participation Agreement.
"Unfunded Amount" shall have the meaning specified in
Section 3.2 of the Agency Agreement.
"Unfunded Liability" shall mean, with respect to any
Plan, at any time, the amount (if any) by which (a) the
present value of all benefits under such Plan exceeds (b) the
fair market value of all Plan assets allocable to such
benefits, all determined as of the then most recent valuation
date for such Plan, but only to the extent that such excess
represents a potential liability of the Company or any member
of the Controlled Group to the PBGC or such Plan under Title
IV of ERISA.
"Uniform Commercial Code" and "UCC" shall mean the
Uniform Commercial Code as in effect in any applicable
jurisdiction.
"United States Bankruptcy Code" shall mean Title 11 of
the United States Code.
"U.S. Person" shall have the meaning specified in
Section 11.2(e) of the Participation Agreement.
"U.S. Taxes" shall have the meaning specified in Section
11.2(e) of the Participation Agreement.
"Wholly-Owned Entity" shall mean a Person all of the
shares of capital stock or other ownership interest of which
are owned by the Guarantor and/or one of its wholly-owned
Subsidiaries or other wholly-owned entities.
"Withholdings" shall have the meaning specified in
Section 11.2(e) of the Participation Agreement.
"Work" shall mean the furnishing of labor, materials,
components, furniture, furnishings, fixtures, appliances,
machinery, equipment, tools, power, water, fuel, lubricants,
supplies, goods and/or services with respect to any Property.