Exhibit 10.8
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CREDIT AGREEMENT
Dated as of April 30, 2003
among
FIRST STATES INVESTORS BAI, LLC,
as the Borrower,
and
Each of the Subsidiaries of the Borrower
from time to time party hereto,
as Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent and L/C Issuer,
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent,
BANK OF MONTREAL and
UBS WARBURG LLC,
as Co-Documentation Agents,
and
The Other Lenders Party Hereto
TABLE OF CONTENTS
Section Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS .................................................................. 1
1.01 Defined Terms. ................................................................................... 1
1.02 Other Interpretive Provisions. ................................................................... 19
1.03 Accounting Terms. ................................................................................ 20
1.04 Rounding. ........................................................................................ 20
1.05 References to Agreements and Laws. ............................................................... 20
1.06 Times of Day. .................................................................................... 21
1.07 Letter of Credit Amounts. ........................................................................ 21
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS ............................................................ 21
2.01 Revolving Loans. ................................................................................. 21
2.02 Borrowings, Conversions and Continuations of Loans. .............................................. 21
2.03 Letters of Credit. ............................................................................... 22
2.04 Prepayments. ..................................................................................... 28
2.05 Termination, Reduction or Increase of Aggregate Revolving Commitments. ........................... 29
2.06 Repayment of Loans. .............................................................................. 29
2.07 Interest. ........................................................................................ 30
2.08 Fees. ............................................................................................ 30
2.09 Computation of Interest and Fees. ................................................................ 31
2.10 Evidence of Debt. ................................................................................ 31
2.11 Payments Generally. .............................................................................. 31
2.12 Sharing of Payments. ............................................................................. 32
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY .......................................................... 33
3.01 Taxes. ........................................................................................... 33
3.02 Illegality. ...................................................................................... 34
3.03 Inability to Determine Rates. .................................................................... 34
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans. .......... 34
3.05 Funding Losses. .................................................................................. 35
3.06 Matters Applicable to all Requests for Compensation. ............................................. 35
3.07 Survival. ........................................................................................ 35
ARTICLE IV GUARANTY ......................................................................................... 36
4.01 The Guaranty. .................................................................................... 36
4.02 Obligations Unconditional. ....................................................................... 36
4.03 Reinstatement. ................................................................................... 37
4.04 Certain Additional Waivers. ...................................................................... 37
4.05 Remedies. ........................................................................................ 37
4.06 Rights of Contribution. .......................................................................... 37
4.07 Guarantee of Payment; Continuing Guarantee. ...................................................... 38
ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS ......................................................... 38
5.01 Conditions of Initial Credit Extension. .......................................................... 38
5.02 Conditions to all Credit Extensions. ............................................................. 41
ARTICLE VI REPRESENTATIONS AND WARRANTIES ................................................................... 42
6.01 Existence, Qualification and Power; Compliance with Laws. ........................................ 42
6.02 Authorization; No Contravention. ................................................................. 42
6.03 Governmental Authorization; Other Consents. ...................................................... 42
6.04 Binding Effect. .................................................................................. 42
6.05 Financial Statements; No Material Adverse Effect. ................................................ 43
6.06 Litigation. ...................................................................................... 43
6.07 No Default. ...................................................................................... 43
6.08 Ownership of Property; Liens. .................................................................... 43
6.09 Environmental Compliance. ........................................................................ 43
6.10 Insurance. ....................................................................................... 44
6.11 Taxes. ........................................................................................... 44
6.12 ERISA Compliance. ................................................................................ 44
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6.13 Subsidiaries. .................................................................................... 45
6.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act. .................. 45
6.15 Disclosure. ...................................................................................... 45
6.16 Compliance with Laws. ............................................................................ 46
6.17 Solvency. ........................................................................................ 46
6.18 Investments; Indebtedness. ....................................................................... 46
6.19 Business Locations. .............................................................................. 46
6.20 Brokers' Fees. ................................................................................... 46
6.21 Labor Matters. ................................................................................... 46
6.22 Nature of Business. .............................................................................. 47
6.23 Representations and Warranties from Other Loan Documents. ........................................ 47
6.24 Survival of Representations and Warranties, Etc. ................................................. 47
6.25 Affiliate Transactions. .......................................................................... 47
6.26 Contractual Obligations. ......................................................................... 47
ARTICLE VII AFFIRMATIVE COVENANTS ........................................................................... 47
7.01 Financial Statements. ............................................................................ 48
7.02 Certificates; Other Information. ................................................................. 48
7.03 Notices and Information. ......................................................................... 49
7.04 Payment of Obligations. .......................................................................... 50
7.05 Preservation of Existence, Franchises, SPE Status, Etc. .......................................... 50
7.06 Maintenance of Properties. ....................................................................... 51
7.07 Maintenance of Insurance. ........................................................................ 51
7.08 Compliance with Laws. ............................................................................ 51
7.09 Books and Records. ............................................................................... 51
7.10 Inspection Rights. ............................................................................... 51
7.11 Use of Proceeds. ................................................................................. 51
7.12 Collateral Account and Agreement. ................................................................ 52
7.13 Additional Guarantors. ........................................................................... 52
7.14 Pledged Assets. .................................................................................. 53
7.15 Service Agreement. ............................................................................... 53
ARTICLE VIII NEGATIVE COVENANTS ............................................................................. 53
8.01 Liens. ........................................................................................... 53
8.02 Investments. ..................................................................................... 54
8.03 Indebtedness. .................................................................................... 54
8.04 Fundamental Changes. ............................................................................. 55
8.05 Dispositions. .................................................................................... 55
8.06 Equity Issuances; Debt Issuances. ................................................................ 55
8.07 Change in Nature of Business. .................................................................... 55
8.08 Transactions with Affiliates and Insiders. ....................................................... 55
8.09 Burdensome Agreements. ........................................................................... 56
8.10 Use of Proceeds. ................................................................................. 56
8.11 Subsidiaries. .................................................................................... 56
8.12 Removal/Addition of Underlying Assets and Eligible Leases; Acquisitions. ......................... 56
8.13 Prepayment of Other Indebtedness, Etc. ........................................................... 58
8.14 Organization Documents; Fiscal Year. ............................................................. 58
8.15 Sale Leasebacks. ................................................................................. 58
8.16 Operating Lease Obligations. ..................................................................... 59
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES ................................................................... 59
9.01 Events of Default. ............................................................................... 59
9.02 Remedies Upon Event of Default. .................................................................. 60
9.03 Application of Funds. ............................................................................ 61
ARTICLE X ADMINISTRATIVE AGENT .............................................................................. 62
10.01 Appointment and Authorization of Administrative Agent. ........................................... 62
10.02 Delegation of Duties. ............................................................................ 62
10.03 Liability of Administrative Agent. ............................................................... 62
10.04 Reliance by Administrative Agent. ................................................................ 62
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10.05 Notice of Default. ............................................................................... 63
10.06 Credit Decision; Disclosure of Information by Administrative Agent. .............................. 63
10.07 Indemnification of Administrative Agent. ......................................................... 64
10.08 Administrative Agent in its Individual Capacity. ................................................. 64
10.09 Successor Administrative Agent. .................................................................. 64
10.10 Administrative Agent May File Proofs of Claim. ................................................... 65
10.11 Collateral and Guaranty Matters. ................................................................. 66
10.12 Other Agents; Arrangers and Managers. ............................................................ 66
ARTICLE XI MISCELLANEOUS .................................................................................... 66
11.01 Amendments, Etc. ................................................................................. 66
11.02 Notices and Other Communications; Facsimile Copies. .............................................. 67
11.03 No Waiver; Cumulative Remedies. .................................................................. 68
11.04 Attorney Costs, Expenses and Taxes. .............................................................. 68
11.05 Indemnification by the Borrower. ................................................................. 69
11.06 Payments Set Aside. .............................................................................. 69
11.07 Successors and Assigns. .......................................................................... 70
11.08 Confidentiality. ................................................................................. 72
11.09 Set-off. ......................................................................................... 72
11.10 Interest Rate Limitation. ........................................................................ 72
11.11 Counterparts. .................................................................................... 73
11.12 Integration. ..................................................................................... 73
11.13 Survival of Representations and Warranties. ...................................................... 73
11.14 Severability. .................................................................................... 73
11.15 Tax Forms. ....................................................................................... 73
11.16 Replacement of Lenders. .......................................................................... 75
11.17 Governing Law. ................................................................................... 75
11.18 Waiver of Right to Trial by Jury. ................................................................ 75
SIGNATURES .................................................................................................. S-1
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SCHEDULES
1.01(a) Pre-Approved Eligible Leases
2.01 Commitments and Pro Rata Shares
6.03 Required Consents, Authorizations, Notices and Filings
6.05 Supplement to Interim Financial Statements
6.09 Environmental Matters
6.10 Insurance
6.13(a) Corporate Structure
6.13(b) Subsidiaries
6.19(a) Underlying Assets
6.19(b) Chief Executive Office, Jurisdiction of Incorporation, Principal Place of Business
11.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
A Form of Loan Notice
B-1 Form of Borrower Pledge Agreement
B-2 Form of Parent Pledge Agreement
C Form of Revolving Note
D Form of Borrowing Base Certificate [provide list of real properties]
E Form of Assignment and Assumption
F Form of Joinder Agreement
G Reserved
H Form of Collateral Account Agreement
I SPE Requirements
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CREDIT AGREEMENT
This CREDIT AGREEMENT (as amended, modified, restated or supplemented from
time to time, the "Agreement") is entered into as of April 30, 2003 by and among
FIRST STATES INVESTORS BAI, LLC, a Delaware limited liability company (together
with any permitted successors and assigns, the "Borrower"), the Guarantors (as
defined herein), the Lenders (as defined herein), and BANK OF AMERICA, N.A., as
Administrative Agent and L/C Issuer (each, as defined herein).
The Borrower has requested that the Lenders provide credit facilities in an
initial aggregate amount of $100,000,000 for the purposes hereinafter set forth,
and the Lenders are willing to do so on the terms and conditions set forth
herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms.
As used in this Agreement, the following terms shall have the meanings set
forth below:
"Acquisition", by any Person, means the acquisition by such Person, in a
single transaction or in a series of related transactions, of all of the Capital
Stock or all or substantially all of the Property of another Person, whether or
not involving a merger or consolidation with such other Person and whether for
cash, property, services, assumption of Indebtedness, securities or otherwise.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 11.02, or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto. Without limiting the generality
of the foregoing, a Person shall be deemed to be Controlled by another Person if
such other Person possesses, directly or indirectly, power to vote 5% or more of
the securities having ordinary voting power for the election of directors,
managing general partners or the equivalent.
"AFRT REIT" means American Financial Realty Trust, a Maryland real estate
investment trust, and its permitted successors and assigns.
"Agent-Related Persons" means the Administrative Agent, together with its
Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Revolving Commitments" means, as of any date of calculation, the
Revolving Commitments of all the Lenders, as such amount may be increased or
decreased pursuant to the terms and conditions set forth herein.
The initial amount of the Aggregate Revolving Commitments in effect on the
Closing Date is ONE HUNDRED MILLION AND NO/100 DOLLARS ($100,000,000.00).
"Agreement" shall have the meaning assigned to such term in the heading
hereof.
"Agreement Date" means the date as of which this Agreement is dated.
"Applicable CR Factor" means, for any Eligible Lease, as of any Certificate
Delivery Date, the following percentages per annum, based on the Credit Rating
of the lessee thereunder as accurately set forth in the Borrowing Base
Certificate delivered on such date:
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Credit Rating of Applicable CR Factor
Applicable Lessee
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1. AAA, AA+ 1.90%
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2. AA, AA-, A+ 2.00%
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3. A, A- 2.10%
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Any increase or decrease in the Applicable CR Factor with respect to any
Eligible Lease resulting from a change in the applicable lessee's Credit Rating
shall, for purposes of calculating the Applicable Discount Factor in any
Borrowing Base Certificate, be deemed effective as of the first day of the
calendar month during which such change occurs.
"Applicable Discount Factor" means, for any Eligible Lease as of any date
of calculation, an amount equal to (a) the Applicable Index Rate for such
Eligible Lease, plus (b) the Applicable CR Factor for such Eligible Lease.
"Applicable Index Rate" means, for each Eligible Lease, as of any
Certificate Delivery Date and based on the remaining Term of the applicable
Eligible Lease as of the Certificate Delivery Date, the per annum percentage
yield for the instrument set across from the category to which such Term
belongs:
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Remaining Term of Eligible Lease Applicable Index Rate
(in whole calendar months) (per annum percentage yield on the
applicable instrument)
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1. *** 42 calendar months 3 year U.S. Treasury Note
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2. ** 42 calendar months, but *** 96 5 year U.S. Treasury Note
calendar months
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3. ** 96 calendar months 10 year U.S. Treasury Note
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** denotes greater than
*** denotes less than or equal to
Any increase or decrease in the Applicable Index Rate with respect to any
Eligible Lease resulting from a change in the applicable per annum percentage
yield of a given instrument or resulting from a change in the remaining Term of
the applicable Eligible Lease shall, for purposes of calculating the Applicable
Index Rate in any Borrowing Base Certificate, be deemed effective as of the
first day of the calendar month during which such change occurs.
"Applicable Spread" means (a) with respect to Eurodollar Rate Loans, 1.25%
per annum and (b) with respect to Base Rate Loans, 0.5% per annum.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
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"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit E.
"Assignment of Leases" means an assignment of leases, rents and/or profits
to the Collateral Agent (for the benefit of the Secured Parties) with respect to
Borrower's interests in any Eligible Lease and the applicable Underlying Asset
associated therewith; provided that each such Assignment of Leases shall,
subject to the terms of the applicable underlying Eligible Lease, directly
assign to the Collateral Agent all of Borrower's rights, title and interest in
and to the following: (a) the Eligible Lease and all other leases, subleases,
tenancies, licenses, occupancy agreements or agreements to lease all or any
portion of the applicable Underlying Asset, together with any extensions,
renewals, amendments, modifications or replacements thereof, and any options,
rights of first refusal or guarantees of any tenant's obligations under any
lease now or hereafter in effect with respect to the applicable Underlying
Asset; (b) all rents, income, receipts, revenues, reserves, issues and profits
arising under such Eligible Lease and any other lease with respect to the
applicable Underlying Asset, including, without limitation, minimum rents,
additional rents, percentage rents, parking, maintenance and deficiency rents
with respect to the applicable Underlying Asset; (c) all awards and payments of
any kind derived from or relating to the Eligible Lease or any other lease
related to the applicable Underlying Asset including, without limitation, (i)
claims for the recovery of damages to the applicable Underlying Asset by
proceeds of any policy of insurance or otherwise, or for the abatement of any
nuisance existing thereon, (ii) claims for damages resulting from acts of
insolvency or bankruptcy or otherwise, (iii) lump sum payments for the
cancellation or termination of the Eligible Lease or any other lease related to
the applicable Underlying Asset, the waiver of any term thereof, or the exercise
of any right of first refusal or option to purchase and (iv) the return of any
insurance premiums or ad valorem tax payments made in advance and subsequently
refunded; (d) the proceeds of any casualty, rental or loss of rents or other
insurance carried by Borrower on the applicable Underlying Asset; (e) all
security deposits and escrow accounts made by any tenant or subtenant under the
Eligible Lease or any other lease related to the applicable Underlying Asset and
(f) any letter of credit delivered by a tenant in connection with an Eligible
Lease. Such Assignments of Leases shall assign to the Collateral Agent any and
all of the Borrower's rights to collect or receive any payments with respect to
the applicable Underlying Asset; and "Assignments of Leases" means a collective
reference to each such Assignment of Leases.
"Attorney Costs" means and includes all reasonable fees, costs, expenses
and disbursements of any law firm or other external counsel and, without
duplication, the allocated reasonable cost of internal legal services and all
reasonable expenses and disbursements of internal counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a Capital Lease.
"Audited Financial Statements" means the audited consolidated balance sheet
of the AFRT REIT for the fiscal year December 31, 2002, and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such fiscal year of the AFRT REIT, including the notes thereto.
"Availability Period" means, with respect to the Revolving Commitments, the
period from the Closing Date to the earliest of (a) the Maturity Date, (b) the
date of termination of the Aggregate Revolving Commitments pursuant to Section
2.05 and (c) the date of termination of the commitment of each Lender to make
Loans and of the obligation of the of the L/C Issuer to make L/C Credit
Extensions pursuant to Section 9.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Bankruptcy Event" means, with respect to any Person, the occurrence of any
of the following: (a) the entry of a decree or order for relief by a court or
governmental agency in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or the appointment
by a court or governmental agency of a
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receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or the
ordering of the winding up or liquidation of its affairs by a court or
governmental agency; or (b) the commencement against such Person of an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or of any case, proceeding or other action for
the appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of
its Property or for the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall remain
undismissed for a period of sixty (60) consecutive days, or the repossession or
seizure by a creditor of such Person of a substantial part of its Property; or
(c) such Person shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or consent to the
entry of an order for relief in an involuntary case under any such law, or
consent to the appointment of or the taking possession by a receiver,
liquidator, assignee, creditor in possession, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its Property
or make any general assignment for the benefit of creditors; or (d) such Person
shall be unable to, or shall admit in writing its inability to, pay its debts
generally as they become due.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Administrative
Agent as its "prime rate." The "prime rate" is a rate set by Administrative
Agent based upon various factors including Administrative Agent's costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Administrative Agent
shall take effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rent" means, for any lease agreement during any period, an amount
equal to (a) the aggregate projected gross rental payments (including, without
limitation, all payments of "base rent", "adjusted base rent", "additional rent"
or similar payments made in exchange for a lessee's right to occupy real
property) to be made by the lessee under such lease agreement during such
period, less (b) all amounts of such rental payments allocated to the payment of
taxes, utilities, insurance, maintenance or other costs associated with the
applicable rental property or otherwise in the nature of reimbursements to
Borrower.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
"Bondable Net Lease" means a lease (a) which, in the reasonable judgment of
the Administrative Agent, is a triple net lease such that the tenant thereunder
is required to pay all taxes, utilities, insurance, maintenance, casualty
insurance payments and other expenses with respect to the subject Real Property
(whether in the form of reimbursements or additional rent) in addition to the
base rental payments required thereunder such that net operating income for such
Real Property (before non-cash items) equals the base rent paid thereunder; and
(b) with respect to which the rental payments may not be reduced, offset or
otherwise curtailed (including, without limitation, in connection with the
occurrence of any casualty event, condemnation event, property release, transfer
or substitution, environmental contamination or lack of economic viability of
the applicable Real Property or the making of any pre- or bulk payment of rent
under the applicable lease) during the remaining term of such Lease, whether
such provision is set forth in such lease or in a writing executed by the tenant
thereunder and addressed to the Administrative Agent and Collateral Agent,
except to the extent (i) any such offset, reduction or curtailment is required
to be accompanied by a payment from the applicable lessee in an amount equal to
or greater than the difference between the Eligible Lease NPV that would exist
with respect to the applicable lease immediately before such offset, reduction
or curtailment and the Eligible Lease NPV that would exist immediately after
such offset, reduction or curtailment, (ii) the applicable lessee has
irrevocably agreed, pursuant to an agreement/consent in form and substance
acceptable to the Administrative Agent, to make such payment directly to the
Administrative Agent and (iii) the applicable landlord has irrevocably directed
the applicable lessee to make such payment directly to the Administrative Agent.
"Borrower" has the meaning specified in the heading hereof.
"Borrower Pledge Agreement" means a pledge agreement in the form of Exhibit
B-1 dated as of the Closing Date executed by the Borrower in favor of the
Collateral Agent for the benefit of the Secured Parties, as amended, modified,
restated or supplemented from time to time.
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"Borrowing" means a borrowing consisting of simultaneous Loans of the same
Type and, in the case of Eurodollar Rate Loans, having the same Interest Period
made by each of the Lenders pursuant to Section 2.01.
"Borrowing Base" means, as of any date of calculation, an amount equal to
the aggregate sum of the Eligible Lease NPVs for each Eligible Lease existing as
of such date, in each case as set forth in the most recent Borrowing Base
Certificate delivered to the Administrative Agent and the Lenders in accordance
with the terms of Section 5.02(g), Section 7.02(b) or any other section of this
Agreement.
"Borrowing Base Certificate" means a certificate substantially in the form
of Exhibit D and certified by an Responsible Officer of the Borrower to be true
and correct as of the date thereof.
"Bridge Credit Facility" means those certain credit facilities evidenced by
that Bridge Credit Agreement dated as of January 21, 2003 by and among FIRST
STATES INVESTORS 3500, LLC, a Delaware limited liability company, as a borrower,
FIRST STATES GROUP, L.P., a Delaware limited partnership, as the LP Guarantor
(as defined therein), FIRST STATES INVESTORS 3500A, LLC, a Delaware limited
liability company, as the Parent Guarantor (as defined therein), STATE STREET
BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity, but solely as Owner Trustee under
the 1997-C Trust Agreement referenced therein, as a Special Guarantor (as
defined therein), STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity, but
solely as Owner Trustee under the 1997-D Trust Agreement referenced therein, as
a Special Guarantor, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as successor Co-Trustee to ▇▇▇▇ ▇▇▇▇
Seakas, as successor Co-Trustee to ▇▇▇▇▇ ▇▇▇▇▇▇▇, not in her individual
capacity, but solely as Co-Trustee under the 1997-C Trust Agreement as a Special
Guarantor, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as successor Co-Trustee to ▇▇▇▇ ▇▇▇▇ Seakas, as
successor Co-Trustee to ▇▇▇▇▇ ▇▇▇▇▇▇▇, not in her individual capacity, but
solely as Co-Trustee under the 1997-D Trust Agreement, as a Special Guarantor,
the Lenders (as defined therein) and BANK OF AMERICA, N.A., as Administrative
Agent (as defined therein) (as the same has been or may be amended, supplemented
or otherwise modified from time to time).
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"Businesses" means, at any time, a collective reference to the businesses
operated by the Loan Parties at such time.
"Capital Lease" means, as applied to any Person, any lease of any Property
(whether real, personal or mixed) by that Person as lessee which, in accordance
with GAAP, is required to be accounted for as a capital lease on the balance
sheet of that Person.
"Capital Stock" means (i) in the case of a corporation, capital stock, (ii)
in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of capital
stock, (iii) in the case of a partnership, partnership interests (whether
general or limited), (iv) in the case of a limited liability company, membership
interests and (v) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Capitalized Lease Obligation" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
is the capitalized amount of such obligations determined in accordance with
GAAP.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Cash Equivalents" means, as of any date, (a) securities issued or directly
and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized
5
standing having capital and surplus in excess of $500,000,000 or (iii) any bank
whose short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1 or the equivalent thereof
(any such bank being an "Approved Bank"), in each case with maturities of not
more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition, (d) repurchase agreements entered into by any
Person with a bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of $500,000,000 for
direct obligations issued by or fully guaranteed by the United States in which
such Person shall have a perfected first priority security interest (subject to
no other Liens) and having, on the date of purchase thereof, a fair market value
of at least 100% of the amount of the repurchase obligations and (e)
Investments, classified in accordance with GAAP as current assets, in money
market investment programs registered under the Investment Company Act of 1940,
as amended, which are administered by reputable financial institutions having
capital of at least $500,000,000 and the portfolios of which are limited to
Investments of the character described in the foregoing subdivisions (a) through
(d).
"Certificate Delivery Date" means each date on which the Borrower is
required, pursuant to the terms of this Agreement (including, without
limitation, Sections 5.01(e), 5.02(g), 7.02 and 8.12 hereof) to deliver to the
Administrative Agent a Borrowing Base Certificate.
"Change of Control" means the occurrence of any of the following events:
(a) the sale, lease, transfer or other disposition (other than by way of merger
or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Loan Parties taken as a whole to any
"person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934), (b) the Parent or the Borrower is liquidated
or dissolved or adopts a plan of liquidation or dissolution; or (c) the Parent
shall fail to own directly 100% of the outstanding Capital Stock of the
Borrower.
"Closing Date" means the first date all the conditions precedent in Section
5.01 are satisfied or waived in accordance with Section 5.01.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means a collective reference to all real and personal Property
with respect to which Liens in favor of the Collateral Agent for the benefit of
the Secured Parties are purported to be granted pursuant to and in accordance
with the terms of the Collateral Documents.
"Collateral Account" means that certain account numbered 0003752041275 and
established with the Collateral Agent pursuant to the Collateral Account
Agreement.
"Collateral Account Agreement" means an agreement in the form set forth on
Exhibit H assigning a security interest in the Collateral Account in favor of
the Collateral Agent for the benefit of the Secured Parties.
"Collateral Account Reserve Amount" means, as of any date of calculation,
an amount equal to (a) (i) the Eurodollar Rate as of the first day of the
most-recently commenced calendar quarter, plus the Applicable Spread applicable
thereto as of such date, plus one quarter of one percent (0.25%); multiplied by
(ii) the amount of the Aggregate Revolving Commitments as of the date of
calculation; divided by (b) four (4).
"Collateral Agent" means Bank of America, in such capacity under the
Collateral Documents, or its successors and assigns.
"Collateral Documents" means a collective reference to the Pledge
Agreements, the Assignments of Leases and such other security documents as may
be executed and delivered by the Loan Parties pursuant to the terms of Section
7.14.
"Commitment" means, as to each Lender, the Revolving Commitment of such
Lender.
"Compensation Period" has the meaning assigned to such term in Section
2.11(c)(ii).
6
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" has the meaning specified in the definition of "Affiliate" set
forth in this Section 1.01.
"Credit Extension" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"Credit Rating" means, with respect to any tenant under an Eligible Lease
as of any date, the S&P equivalent of the lowest credit rating given by any
Rating Agency to such tenant as of such date.
"Debt Issuance" means the issuance by any Loan Party of any Indebtedness of
the type referred to in clause (a) or (b) of the definition thereof set forth in
this Section 1.01.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus (b)
the Applicable Spread, if any, applicable to Base Rate Loans plus (c) three
percent (3.0%) per annum, to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans or participations in L/C Obligations required to be funded
by it hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to the Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a good faith dispute,
or (c) has been deemed insolvent or become the subject of a bankruptcy or
insolvency proceeding.
"Disposition" or "Dispose" means any disposition of any or all of the
Property (including without limitation the Capital Stock of a Subsidiary) of any
Loan Party whether by sale, lease, licensing, transfer or otherwise, but other
than pursuant to any casualty or condemnation event; provided, however, that the
term "Disposition" shall be deemed to exclude any Equity Issuance.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary that is organized under the laws
of any political subdivision of the United States.
"Eligible Assignee" means any Person who is: (a) a Lender; (b) an Affiliate
of a Lender; (c) an Approved Fund; or (d) (i) a commercial bank, trust company,
insurance company, savings and loan association, savings bank, investment bank,
pension fund or mutual fund organized under the laws of the United States of
America, or any state thereof, and having total assets in excess of
$5,000,000,000; (ii) a commercial bank organized under the laws of any other
country which is a member of the Organization for Economic Cooperation and
Development ("OECD"), or the laws of a political subdivision of any such
country, and having total assets in excess of $10,000,000,000, provided that
such bank is acting through a branch or agency located in the United States of
America; provided, that, for purposes of both subclause (i) and subclause (ii)
of this clause (d): (1) such Person's senior unsecured long term Indebtedness
must be rated BBB or higher by S&P, Baa2 or higher by Moody's, or the equivalent
or higher of either such rating by another rating agency of national reputation
and reasonably acceptable to the Administrative Agent; (2) such Person must be
otherwise approved by the Administrative Agent in writing (with such approval
not to be
7
unreasonably withheld or delayed); and (3) if an Event of Default has not
occurred, such Person must be approved by the Borrower (with such approval not
to be unreasonably withheld or delayed).
"Eligible Lease" means a lease of Real Property (exclusive of furniture,
fixtures and equipment) located in the United States which satisfies all of the
following requirements: (a) such lease either (i) is listed on Schedule 1.01(a)
attached hereto, (ii) is a Bondable Net Lease that has been nominated by the
Borrower to be a "New Eligible Lease" pursuant to Section 8.12(c) hereof, has
been duly approved by the Administrative Agent pursuant to the terms of such
section and the Borrower has satisfied all conditions set forth in such section
for the qualification of such lease as a New Eligible Lease; or (iii) has been
nominated by the Borrower to be a "New Eligible Lease" pursuant to Section
8.12(c) hereof, has been duly approved by the Administrative Agent and each of
the Lenders pursuant to the terms of such section and the Borrower has satisfied
all conditions set forth in such section for the qualification of such lease as
a New Eligible Lease; (b) such lease, the rental payments due thereunder, the
term thereof and the obligations of the applicable landlord thereunder have not
been materially modified in any manner, no material provision of such lease has
been waived (in each case as determined by the Administrative Agent in its sole
discretion) since its inclusion on Schedule 1.01(a) or its approval pursuant to
subclause (a)(i) or (ii) above and the applicable lessee thereunder is not
permitted (either pursuant to the terms of the lease or the terms of a separate
agreement, in form and substance acceptable to the Administrative Agent in its
discretion, executed by such lessee in favor of the applicable Loan Party and
the Administrative Agent) to prepay rental or other payments due thereunder; (c)
each tenant under such lease is either an Eligible Lessee or an Affiliate of an
Eligible Lessee, is not permitted, pursuant to the terms of such lease, to
assign its obligation to pay rental payments thereunder to the applicable Loan
Party and has executed and delivered to the Administrative Agent a Payment
Consent; (d) to the extent any tenant is an Affiliate of an Eligible Lessee,
such Eligible Lessee has guaranteed all the payment and performance obligations
of such tenant under the lease in a manner satisfactory to the Administrative
Agent in its sole discretion; (e) the subject Real Property is 100% leased by an
Eligible Lessee or an Affiliate of an Eligible Lessee; (f) such Real Property is
owned in fee simple by a Loan Party; (g) neither such Real Property nor any
interest therein of the applicable Loan Party, is subject to (i) any Lien other
than Permitted Liens of the types described in clauses (a) through (c) of the
definition thereof or (ii) any Negative Pledge (other than as provided in this
Agreement); (h) no required rental payment or other payment due under such lease
is more than seven (7) days past due; (i) upon its nomination (or renomination
if, for any reason, such lease is no longer considered an "Eligible Lease"
hereunder at any time and the Borrower renominates such lease to be an "Eligible
Lease") for qualification as an "Eligible Lease" hereunder, the remaining Term
of such lease is not less than sixty (60) calendar months; (j) the
Administrative Agent shall have received evidence that the applicable lease, a
memorandum of lease with respect thereto, or other evidence of such lease in
form and substance reasonably satisfactory to the Administrative Agent, has been
or will be recorded in all places to the extent necessary or desirable, in the
reasonable judgment of the Administrative Agent, so as to enable a fully
executed Assignment of Leases encumbering such leasehold interest, if recorded,
to effectively create a valid and enforceable lien on such leasehold interest in
favor of the Collateral Agent (or such other Person as may be required or
desired under local law) for the benefit of the Secured Parties; (k) the
Collateral Agent shall have received an Assignment of Leases with respect to
such lease; and (l) the Administrative Agent shall have received (i) evidence
that the Borrower has delivered an Irrevocable Direction to each of the lessees
under such lease and (ii) Payment Consents from all lessees thereunder.
"Eligible Lease Monthly Borrowing Factor" means, with respect to any
Eligible Lease as of any date of calculation and for each calendar month
remaining in the Term of such Eligible Lease, an amount equal to (a) the
Projected Base Rents of such Eligible Lease for such calendar month, divided by
(b) 1.10.
"Eligible Lease NPV" means, with respect to any Eligible Lease as of any
date of calculation, the aggregate present value, using a discount rate equal to
the Applicable Discount Factor, of each of the Eligible Lease Monthly Borrowing
Factors with respect to such Lease.
"Eligible Lessee" means a Financial Institution which satisfies all of the
following requirements: (a) such Financial Institution is not the subject of any
Bankruptcy Event; and (b) such Financial Institution has outstanding publicly
traded (SEC registered) senior debt that is rated by either Moody's or S&P and
the Credit Rating of such Person is A3/A- or better.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or
8
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with the Borrower within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
"Equity Issuance" means any issuance by any Loan Party to any Person of (a)
shares of its Capital Stock, (b) any shares of its Capital Stock pursuant to the
exercise of options or warrants, (c) any shares of its Capital Stock pursuant to
the conversion of any debt securities to equity or the conversion of any class
equity securities to any other class of equity securities or (d) any options or
warrants relating to its Capital Stock. The term "Equity Issuance" shall not be
deemed to include any Disposition.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan:
(a) the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate Page 3750 (or any successor page, as
determined by the Administrative Agent) as the average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for delivery
on the first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not appear
on such page or service or such page or service shall not be available, the
rate per annum equal to the rate determined by the Administrative Agent to
be the offered rate on such other page or other service that displays an
average British Bankers Association Interest Settlement Rate for deposits
in Dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum determined by the Administrative Agent as
the rate of interest at which deposits in Dollars for delivery on the first
day of such Interest Period in same day funds in the approximate amount of
the Eurodollar Rate Loan being made, continued or converted by Bank of
America and with a term equivalent to such Interest Period would be offered
by Bank of America's London Branch to major banks in the
9
London interbank eurodollar market at their request at approximately 4:00
p.m. (London time) two Business Days prior to the first day of such
Interest Period.
"Eurodollar Rate Loan" means a Loan that bears interest at a rate based on
the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 9.01.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Administrative
Agent on such day on such transactions as determined by the Administrative
Agent.
"Fee Letter" means the fee letter agreement, dated December 17, 2002 among
the Borrower, the Administrative Agent and the Arranger.
"FIRREA" means the Financial Institutions Reform, Recovery, and Enforcement
Act of 1989, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, as amended, including, without limitation,
12 CFR part 34.41 to 34.47.
"Financial Institution" means (a) a "national bank" or "national banking
association" as defined and subject to regulation as provided in Title 12 of the
United States Code, (b) an entity defined as or regulated as a "state bank"
under a similar state law and (c) other financial entities regulated under
similar federal or state laws, including savings and loan associations, savings
banks, industrial banks, credit unions and similar entities.
"Foreign Lender" has the meaning specified in Section 11.15(a)(i).
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fully Satisfied" means, with respect to the Obligations as of any date,
that, as of such date, (a) all principal of and interest accrued to such date
which constitute Obligations shall have been irrevocably paid in full in cash,
(b) all fees, expenses and other amounts then due and payable which constitute
Obligations shall have been irrevocably paid in cash, (c) all outstanding
Letters of Credit shall have been (i) terminated, (ii) fully irrevocably Cash
Collateralized or (iii) secured by one or more letters of credit on terms and
conditions, and with one or more financial institutions, reasonably satisfactory
to the L/C Issuer and (d) the Commitments shall have expired or been terminated
in full.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
10
"Guarantee" means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "Guarantee" as a verb has a corresponding meaning.
"Guarantors" means a collective reference to the Persons identified as "
Guarantors" on the signature pages hereto and each Person that subsequently
becomes a Guarantor by executing a Joinder Agreement as contemplated by Section
7.13, and "Guarantor" means any one of them.
"Guaranty" means the Guaranty made by the Guarantors in favor of the
Administrative Agent and the Lenders pursuant to Article IV hereof.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" means, with respect to any Person, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to Property
purchased by such Person (other than customary reservations or retentions of
title under agreements with suppliers entered into in the ordinary course of
business), (d) all obligations of such Person issued or assumed as the deferred
purchase price of Property or services purchased by such Person (other than
trade debt incurred in the ordinary course of business and due within six months
of the incurrence thereof) which would appear as liabilities on a balance sheet
of such Person, (e) all obligations of such Person under take-or-pay or similar
arrangements or under commodities agreements, (f) the Attributable Indebtedness
of such Person with respect to Capital Leases and Synthetic Lease Obligations,
(g) all net obligations of such Person under Swap Contracts, (h) the principal
portion of all obligations of such Person as an account party in respect of
letters of credit (other than trade letters of credit) and bankers' acceptances,
including, without duplication, all unreimbursed drafts drawn thereunder (less
the amount of any cash collateral securing any such letters of credit or and
bankers' acceptances), (i) all obligations of such Person to repurchase any
securities issued by such Person at any time prior to the Maturity Date which
repurchase obligations are related to the issuance thereof, including, without
limitation, obligations commonly known as residual equity appreciation potential
shares, (j) the aggregate amount of uncollected accounts receivable of such
Person subject at such time to a sale of receivables (or similar transaction) to
the extent such transaction is effected with recourse to such Person (whether or
not such transaction would be reflected on the balance sheet of such Person in
accordance with GAAP), (k) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on, or payable out of the proceeds of production
from, Property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (l) all Guarantees of such Person with
respect to Indebtedness of another Person, (m) the Indebtedness of any
partnership or unincorporated joint venture in which such Person is a general
partner or a joint venturer to the extent such Indebtedness is recourse to such
Person and (n) all Off-Balance Sheet Liabilities of such Person. The amount of
any net obligation under any Swap Contract on any date shall be deemed to be the
Swap Termination Value thereof as of such date. To the extent the
11
term "Indebtedness" is used with respect to any Loan Party, the "Indebtedness"
of such Loan Party shall include, without limitation, all of the Obligations.
"Indemnified Liabilities" has the meaning set forth in Section 11.05.
"Indemnitees" has the meaning set forth in Section 11.05.
"Indemnity Agreement" means that certain Indemnity and Guaranty Agreement
dated as of April 30, 2003 by the Parent and the AFRT REIT in favor of the
Administrative Agent.
"Interest Payment Date" means, as to any Loan, (a) the last Business Day of
each month and (b) the Maturity Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Loan Notice; provided
that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"Investment" means any investment made in cash or by delivery of property
by any Person (a) in any Person through (i) any Acquisition of such Person, (ii)
any other acquisition of Capital Stock, bonds, notes, debentures, partnership,
joint ventures or other ownership interests or other securities of such other
Person, (iii) any deposit with, or advance, loan or other extension of credit
to, such Person (other than deposits made in connection with the purchase of
equipment inventory and supplies in the ordinary course of business) or (iv) any
other capital contribution to or investment in such Person, including, without
limitation, any Guarantee (including any support for a letter of credit issued
on behalf of such Person) incurred for the benefit of such Person and any
Disposition to such Person for consideration less than the fair market value of
the Property disposed in such transaction, but excluding any Restricted Payment
to such Person or (b) in any property. Investments which are capital
contributions or purchases of Capital Stock which have a right to participate in
the profits of the issuer thereof shall be valued at the amount (or, in the case
of any Investment made with Property other than cash, the book value of such
Property) actually contributed or paid (including cash and non-cash
consideration and any assumption of Indebtedness) to purchase such Capital Stock
as of the date of such contribution or payment and attributable to any
Investment made after the Closing Date. Investments which are loans, advances,
extensions of credit or Guarantees shall be valued at the principal amount of
such loan, advance or extension of credit outstanding as of the date of
determination or, as applicable, the principal amount of the loan or advance
outstanding as of the date of determination actually guaranteed by such
Guarantees.
"Involuntary Disposition" means any loss of, damage to or destruction of,
or any condemnation or other taking for public use of, any Property of any Loan
Party.
"IRS" means the United States Internal Revenue Service.
"Irrevocable Direction" means a letter or other writing from the Borrower
or other Loan Party to a tenant/lessee under a lease containing irrevocable
(except with the consent of the Administrative Agent) instructions to such
tenant/lessee to make all payments (whether constituting rent or any other
payment) due under such lease to an account designated by the Administrative
Agent to the Borrower and advising such tenant/lessee that the approval of the
Administrative Agent shall be necessary (a) for any future material
modifications, amendments, waivers or any other changes to the lease, (b) for
any changes to the rental or other payments due from lessee thereunder, (c) for
any change in the term of such lease and (d) for any increase in the obligations
of the landlord under such lease.
12
"Joinder Agreement" means a Joinder Agreement substantially in the form of
Exhibit F hereto, executed and delivered by a new Guarantor in accordance with
the provisions of Section 7.13.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing under
any Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Borrowing of Revolving Loans.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings.
"Lenders" means a collective reference to the Persons identified as
"Lenders" on the signature pages hereto, together with any Person that
subsequently becomes a Lender by way of assignment in accordance with the terms
of Section 11.7, together with their respective successors, and "Lender" means
any one of them.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is thirty (30) days
prior to the Maturity Date then in effect (or, if such day is not a Business
Day, the next preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to $10,000,000.00. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Revolving Commitments.
"Lien" as applied to the property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, pledge,
negative pledge, lien, charge, ground lease or lease constituting a Capitalized
Lease Obligation, conditional sale or other title retention agreement, or other
security title or encumbrance of any kind in respect of any property of such
Person, or upon the income or profits therefrom; (b) any arrangement, express or
implied, under which any property of such Person is transferred, sequestered or
otherwise identified for the purpose of subjecting the same to the payment of
Indebtedness or performance of any other obligation in priority to the payment
of the general, unsecured creditors of such Person; (c) the filing of any
financing statement under the Uniform Commercial Code or its equivalent in any
jurisdiction, unless there exists no underlying Indebtedness or other obligation
in connection with such filing; and (d) any agreement by such Person to grant,
give or otherwise convey any of the foregoing.
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"Loan" means any Revolving Loan.
"Loan Documents" means this Agreement, each Note, each Letter of Credit,
each Letter of Credit Application, the Indemnity Agreement, each Joinder
Agreement, the Collateral Documents, the Syndication Letter and the Fee Letter.
"Loan Notice" means a notice of (a) a Borrowing, (b) a conversion of Loans
from one Type to the other, or (c) a continuation of Eurodollar Rate Loans,
pursuant to Section 2.02(a), which, if in writing, shall be substantially in the
form of Exhibit A.
"Loan Parties" means, collectively, the Borrower and each Guarantor; and
"Loan Party" means any one of them.
"Majority Lenders" means, at any time, Lenders holding in the aggregate
more than fifty percent (50%) of (a) the unfunded Commitments (and
participations therein) and the outstanding Loans, L/C Obligations and
participations therein or (b) if the Commitments have been terminated, the
outstanding Loans, L/C Obligations and participations therein. The unfunded
Commitments of, and the outstanding Loans held or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination of Required
Lenders.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole or the Loan Parties as a whole;
(b) a material impairment of the ability of the Borrower and its Subsidiaries
taken as a whole or the Loan Parties as a whole to perform their respective
obligations under any Loan Document to which they are a party; or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability
against any Loan Party of any Loan Document to which it is a party.
"Maturity Date" means April 30, 2006.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor thereto.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Negative Pledge" means a provision of any agreement (other than this
Agreement or any other Loan Document) that prohibits the creation of any Lien on
any assets of a Person.
"New Eligible Lease" has the meaning set forth in Section 8.12(c).
"Note" or "Notes" means the Revolving Notes, individually or collectively,
as appropriate.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding. The foregoing shall also include any
Swap Contract of any Loan Party to which a Lender or any Affiliate of such
Lender is a party.
"Off-Balance Sheet Liabilities" means, with respect to any Person, (a) any
repurchase obligation or liability, contingent or otherwise, of such Person with
respect to any accounts or notes receivable sold, transferred or otherwise
disposed of by such Person, (b) any repurchase obligation or liability,
contingent or otherwise, of such Person with respect to property or assets
leased by such Person as lessee and (c) all obligations, contingent or
otherwise, of such Person under any Synthetic Lease, tax retention Operating
Lease, off balance sheet loan or similar off balance sheet financing if the
transaction giving rise to such obligation (i) is considered Indebtedness for
14
borrowed money for tax purposes but is classified as an Operating Lease, (ii)
does not (and is not required pursuant to GAAP to) appear as a liability on the
balance sheet of such Person, (iii) a transaction pursuant to which a tenant
does not take possession of the leased property, or (iv) any leases treated as a
financing for GAAP or tax purposes, but excluding from the forgoing provisions
of this definition any obligations or liabilities of any such Person as lessee
under any Operating Lease so long as the terms of such Operating Lease do not
require any payment by or on behalf of such Person at the scheduled termination
date of such Operating Lease, pursuant to a required purchase by or on behalf of
such Person of the property or assets subject to such Operating Lease, or under
any arrangements pursuant to which such Person guarantees or otherwise assures
any other Person of the value of the property or assets subject to such
Operating Lease.
"Operating Lease" means, as applied to any Person, any lease (including,
without limitation, leases which may be terminated by the lessee at any time) of
any Property (whether real, personal or mixed) which is not a Capital Lease
other than any such lease in which that Person is the lessor.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Outstanding Amount" means (i) with respect to Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Revolving Loans, as the case may be,
occurring on such date; and (ii) with respect to any L/C Obligations on any
date, the amount of such L/C Obligations on such date after giving effect to any
L/C Credit Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a result
of any reimbursements of outstanding unpaid drawings under any Letters of Credit
or any reductions in the maximum amount available for drawing under Letters of
Credit taking effect on such date.
"Parent" means First States Group, L.P. a Delaware limited partnership.
"Parent Pledge Agreement" means the pledge agreement in the form of Exhibit
B-2 dated as of the Closing Date executed by the Parent in favor of the
Collateral Agent for the benefit of the Secured Parties, as amended, modified,
restated or supplemented from time to time.
"Participant" has the meaning specified in Section 11.07(d).
"Payment Consent" means a consent or other agreement executed by a lessee
under a lease, in form and substance acceptable to the Administrative Agent,
whereby such lessee irrevocably agrees, among other things, to make all payments
under the applicable lease (whether constituting rent or any other payment due
thereunder) directly to an account specified by the Borrower (at the direction
of the Administrative Agent).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Investments" means, at any time, Investments by the Loan Parties
permitted to exist at such time pursuant to the terms of Section 8.02.
15
"Permitted Liens" means, at any time, Liens in respect of Property of the
Loan Parties permitted to exist at such time pursuant to the terms of Section
8.01.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Pledge Agreements" means a collective reference to the Parent Pledge
Agreement and the Borrower Pledge Agreement.
"Pro Forma Basis" means, for purposes of performing calculations required
in any Pro Forma Borrowing Base Certificate in respect of a proposed
transaction, that such transaction shall be deemed to have occurred as of the
proposed date of such transaction and all other components of such calculation
shall be as reported pursuant to Section 7.02(b) as of the end of the
immediately preceding calendar month. As used herein, "transaction" shall mean
(a) any Disposition as referred to in Section 8.05 or Section 8.12 or other
removal of a lease as an Eligible Lease as referred to in Section 8.12; (b) any
addition of any New Eligible Lease pursuant to Section 8.12(c) hereof; and (c)
any Borrowing hereunder.
"Pro Forma Borrowing Base Certificate" means a certificate of a Responsible
Officer of the Borrower delivered to the Administrative Agent in connection with
(a) any Disposition as referred to in Section 8.05 or Section 8.12 or other
removal of a lease as an Eligible Lease as referred to in Section 8.12; (b) any
addition of any New Eligible Lease pursuant to Section 8.12(c) hereof; or (c)
any Borrowing hereunder, as applicable, and containing reasonably detailed
calculations, upon giving effect to the applicable transaction on a Pro Forma
Basis, of the matters set forth in each Borrowing Base Certificate as of the
most recently ended calendar month preceding the date of the applicable
transaction.
"Projected Base Rents" means, with respect to any Eligible Lease as of any
date of calculation, the projected monthly Base Rent to be paid by the
applicable lessee to the Borrower under such Eligible Lease for a particular
calendar month during the projected Term of the Eligible Lease.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Pro Rata Share" means as to each Lender, with respect to such Lender's
Revolving Commitment at any time, a fraction (expressed as a percentage, carried
out to the ninth decimal place), the numerator of which is the amount of the
Revolving Commitment of such Lender at such time and the denominator of which is
the amount of the Aggregate Revolving Commitments at such time; provided that if
the commitment of each Lender to make Revolving Loans and the obligation of the
L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 9.02, then the Pro Rata Share of such Lender shall be determined based
on the Pro Rata Share of such Lender immediately prior to such termination and
after giving effect to any subsequent assignments made pursuant to the terms
hereof. The initial Pro Rata Share of each Lender is set forth opposite the name
of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable.
"Rating Agency" means either of S&P or Moody's.
"Real Properties" means, at any time, a collective reference to each of the
facilities and real properties owned, leased or operated by the Loan Parties at
such time; and "Real Property" means any one of them.
"Register" has the meaning set forth in Section 11.07(c).
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
16
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Loans, a Loan Notice and (b) with respect to an
L/C Credit Extension, a Letter of Credit Application.
"Required Financial Information" means, with respect to each fiscal period
or quarter of the Borrower, (a) the financial statements required to be
delivered pursuant to Section 7.01(a) or (b) for such fiscal period or quarter,
and (b) the certificate of a Responsible Officer of the Borrower required by
Section 7.02(b) to be delivered with the financial statements described in
clause (a) above.
"Required Lenders" means, at any time, Lenders holding in the aggregate at
least sixty-six and two-thirds percent (66 2/3%) of (a) the unfunded Commitments
(and participations therein) and the outstanding Loans, L/C Obligations and
participations therein or (b) if the Commitments have been terminated, the
outstanding Loans, L/C Obligations and participations therein. The unfunded
Commitments of, and the outstanding Loans held or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination of Required
Lenders.
"Responsible Officer" means the chief executive officer, president, vice
president, chief financial officer, treasurer or assistant treasurer of a Loan
Party. Any document delivered hereunder that is signed by a Responsible Officer
of a Loan Party shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.
"Restricted Payment" means (a) any dividend or other payment or
distribution, direct or indirect, on account of any shares of any class of
Capital Stock of any Loan Party, now or hereafter outstanding (including without
limitation any payment in connection with any dissolution, merger, consolidation
or disposition involving any Loan Party), or to the holders, in their capacity
as such, of any shares of any class of Capital Stock of any Loan Party, now or
hereafter outstanding, (b) any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any
shares of any class of Capital Stock of any Loan Party, now or hereafter
outstanding or (c) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of Capital Stock of any Loan Party, now or hereafter outstanding.
"Revolving Commitment" means, as to each Lender, its obligation to (a) make
Revolving Loans to the Borrower pursuant to Section 2.01(a) and (b) purchase
participations in L/C Obligations, in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Lender's name
on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.
"Revolving Loan" has the meaning specified in Section 2.01(a).
"Revolving Note" has the meaning specified in Section 2.10(a).
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto.
"Sale and Leaseback Transaction" means any arrangement pursuant to which
any Loan Party, directly or indirectly, becomes liable as lessee, guarantor or
other surety with respect to any lease, whether an Operating Lease or a Capital
Lease, of any Property (a) which such Loan Party has sold or transferred (or is
to sell or transfer) to a Person which is not a Loan Party or (b) which such
Loan Party intends to use for substantially the same purpose as any other
Property which has been sold or transferred (or is to be sold or transferred) by
such Loan Party to another Person which is not a Loan Party in connection with
such lease.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Secured Party" means any Lender (and any Lender or Affiliate of a Lender
that is a party to a Swap Contract as of the date on which such Person enters
into such Swap Contract), the L/C Issuer, the Collateral Agent or the
Administrative Agent; and "Secured Parties" means a collective reference to each
Secured Party.
17
"Service Agreement" means that certain Management Agreement entered into by
and between Borrower and the Parent as of April ___, 2003, setting forth the
contractual relationship between such parties for the provision of certain
services from Parent to Borrower in accordance with Section 7.15 hereof.
"Solvent" or "Solvency" means, with respect to any Person as of a
particular date, that on such date (a) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they mature
in the ordinary course of business, (b) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature in their ordinary course,
(c) such Person is not engaged in a business or a transaction, and is not about
to engage in a business or a transaction, for which such Person's Property would
constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged or is to
engage, (d) the fair value of the Property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (e) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
"SPE" means a Person whose Organization Documents and other characteristics
satisfy the SPE Requirements.
"SPE Requirements" means a collective reference to the requirements and
conditions set forth on Exhibit I attached hereto.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of Capital Stock having ordinary voting power for the election of
directors or other governing body (other than Capital Stock having such power
only by reason of the happening of a contingency) are at the time beneficially
owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person. Unless
otherwise specified, all references herein to a "Subsidiary" or to
"Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Syndication Letter" means that certain syndication letter agreement dated
as of December 17, 2002 by and among the Borrower, the Administrative Agent and
the Arranger.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations
18
that do not appear on the balance sheet of such Person but which, upon the
insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).
"Term" means, with respect to any Eligible Lease as of any date of
calculation, the remaining term of such Eligible Lease (not including (i) any
optional extension periods or (ii) any periods after the effective date of any
early termination right in favor of the tenant; provided that if such effective
date is contingent upon events or circumstances undeterminable as of the date of
calculation, then such effective date shall be deemed to be the earliest
possible effective date as estimated by the Administrative Agent) calculated in
whole calendar months (and rounding down for any remaining partial months).
"Threshold Amount" means $5,000,000.00.
"Total Outstandings" means the aggregate Outstanding Amount of (i) all
Revolving Loans and (ii) all L/C Obligations.
"Type" means, with respect to any Loan, its character as a Base Rate Loan
or a Eurodollar Rate Loan.
"Underlying Asset" means, with respect to any Eligible Lease, the Real
Property interest that is the subject of such Eligible Lease.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i).
"Unused Fee" has the meaning set forth in Section 2.08(a).
"Unused Fee Calculation Period" has the meaning set forth in Section
2.08(a).
"Unused Percentage" means, for any given Unused Fee Calculation Period, a
percentage equal to (a) the Unused Revolving Committed Amount for such period,
divided by (b) the average amount, as calculated on a daily basis, of the
Aggregate Revolving Commitments during such period.
"Unused Revolving Committed Amount" means, for any given Unused Fee
Calculation Period, the average amount (if any), as calculated on a daily basis,
by which the Aggregate Revolving Commitments exceed the Total Oustandings.
"Voting Stock" means, with respect to any Person, Capital Stock issued by
such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
"Wholly Owned Subsidiary" means any Person 100% of whose Capital Stock is
at the time owned by the Borrower directly or indirectly through other Persons
100% of whose Capital Stock is at the time owned, directly or indirectly, by the
Borrower.
1.02 Other Interpretive Provisions.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
19
(b) (i) The words "herein," "hereto," "hereof" and "hereunder" and
words of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to
the Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical
or electronic form.
(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms.
(a) Except as otherwise specifically prescribed herein, all accounting
terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement
shall be prepared in conformity with, GAAP applied on a consistent basis, as in
effect from time to time, applied in a manner consistent with that used in
preparing the Audited Financial Statements; provided, however, that calculations
of Attributable Indebtedness under any Synthetic Lease Obligations or the
implied interest component of any Synthetic Lease Obligations shall be made by
the Borrower in accordance with accepted financial practice and consistent with
the terms of such Synthetic Lease Obligations.
(b) If at any time any change in GAAP would affect the computation of any
financial ratio, requirement or calculation set forth in any Loan Document, and
either the Borrower or the Required Lenders shall so request, the Administrative
Agent, the Lenders and the Borrower shall negotiate in good faith to amend such
ratio, requirement or calculation to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of the Required Lenders);
provided that, until so amended, (i) such ratio, requirement or calculation
shall continue to be computed in accordance with GAAP prior to such change
therein and (ii) the Borrower shall provide to the Administrative Agent and the
Lenders financial statements and other documents required under this Agreement
or as reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to
such change in GAAP.
1.04 Rounding.
Any financial ratios required to be maintained by the Borrower pursuant to
this Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of places
by which such ratio is expressed herein and rounding the result up or down to
the nearest number (with a rounding-up if there is no nearest number).
1.05 References to Agreements and Laws.
Unless otherwise expressly provided herein, (a) references to Organization
Documents, agreements (including the Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and other
modifications are not prohibited by any Loan Document; and (b) references to any
Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.
20
1.06 Times of Day.
Unless otherwise specified, all references herein to times of day shall
be references to Eastern time (daylight or standard, as applicable).
1.07 Letter of Credit Amounts.
Unless otherwise specified, all references herein to the amount of a
Letter of Credit at any time shall be deemed to mean the maximum face amount of
such Letter of Credit after giving effect to all increases thereof contemplated
by such Letter of Credit or the Letter of Credit Application therefor, whether
or not such maximum face amount is in effect at such time.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Revolving Loans.
Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a "Revolving Loan") to the
Borrower from time to time, on any Business Day during the Availability Period,
in an aggregate amount not to exceed at any time outstanding the amount of such
Lender's Revolving Commitment; provided, however, that after giving effect to
any Borrowing of Revolving Loans, (a) the Total Outstandings shall not exceed
the lesser of (i) the Aggregate Revolving Commitments and (ii) the Borrowing
Base, and (b) the aggregate Outstanding Amount of the Revolving Loans of any
Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations shall not exceed such Lender's Revolving Commitment. Within the
limits of each Lender's Revolving Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.01(a), prepay
under Section 2.04(a), and reborrow under this Section 2.01(a). Revolving Loans
may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Borrowing, each conversion of Loans from one Type to the
other, and each continuation of Eurodollar Rate Loans shall be made upon the
Borrower's irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative Agent not
later than 11:00 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any
conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) one Business
Day prior to the requested date of any Borrowing of Base Rate Loans; provided,
however, all Borrowings made on the Closing Date shall be made as Base Rate
Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a)
must be confirmed promptly by delivery to the Administrative Agent of a written
Loan Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate
Loans shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Except as provided in Sections 2.03(c), each
Borrowing of or conversion to Base Rate Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each Loan Notice
(whether telephonic or written) shall specify (i) whether the Borrower is
requesting a Borrowing, a conversion of Loans from one Type to the other, or a
continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business Day),
(iii) the principal amount of Loans to be borrowed, converted or continued, (iv)
the Type of Loans to be borrowed or to which existing Loans are to be converted,
and (v) if applicable, the duration of the Interest Period with respect thereto.
If the Borrower fails to specify a Type of Loan in a Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation,
then the applicable Loans shall be made as, or converted to, Base Rate Loans.
Any such automatic conversion to Base Rate Loans shall be effective as of the
last day of the Interest Period then in effect with respect to the applicable
Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to,
or continuation of Eurodollar Rate Loans in any such Loan Notice, but fails to
specify an Interest Period, it will be deemed to have specified an Interest
Period of one month.
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(b) Following receipt of a Loan Notice, the Administrative Agent
shall promptly notify each Lender of the amount of its Pro Rata Share of the
applicable Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans described in the
preceding subsection. In the case of a Borrowing, each Lender shall make the
amount of its Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent's Office not later than 11:00 a.m.
on the Business Day specified in the applicable Loan Notice. Upon satisfaction
of the applicable conditions set forth in Section 5.02 (and, if such Borrowing
is the initial Credit Extension, Section 5.01), the Administrative Agent shall
make all funds so received available to the Borrower in like funds as received
by the Administrative Agent either by (i) crediting the account of the Borrower
on the books of Administrative Agent with the amount of such funds or (ii) wire
transfer of such funds, in each case in accordance with instructions provided to
(and reasonably acceptable to) the Administrative Agent by the Borrower;
provided, however, that if, on the date a Loan Notice with respect to a
Borrowing consisting of Revolving Loans is given by the Borrower, there are L/C
Borrowings outstanding, then the proceeds of such Borrowing shall be applied,
first, to the payment in full of any such L/C Borrowings and second, to the
Borrower as provided above. The Administrative Agent hereby agrees that, unless
it receives notification from any Lender of such Lender's inability or
unwillingness to fund a Borrowing that has been duly requested by Borrower and
with respect to which all applicable conditions (including the conditions
precedent set forth in Article V hereof) have been fully satisfied, it shall
make good faith efforts to fund each Borrowing not later than 11:00 a.m. as of
the requested date of such Borrowing as set forth in the applicable Loan Notice;
provided, however, that the Administrative Agent's failure to fund any Borrowing
hereunder shall not, in any case, give rise to any claim, counterclaim, defense
or right to recoupment or set-off in favor of the Borrower, any Loan Party or
any other Person.
(c) Subject to Section 3.05, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans having Interest
Periods greater than one month without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower
and the Lenders of the interest rate applicable to any Interest Period for
Eurodollar Rate Loans upon determination of such interest rate. The
determination of the Eurodollar Rate by the Administrative Agent shall be
conclusive in the absence of manifest error. At any time that Base Rate Loans
are outstanding, the Administrative Agent shall notify the Borrower and the
Lenders of any change in Administrative Agent's prime rate used in determining
the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of
Loans from one Type to the other, and all continuations of Loans as the same
Type, there shall not be more than six (6) Interest Periods in effect with
respect to Revolving Loans.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein,
(A) the L/C Issuer agrees, in reliance upon the agreements of the
other Lenders set forth in this Section 2.03, (1) from time to time on
any Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue Letters of Credit for the
account of the Borrower, and to amend or renew Letters of Credit
previously issued by it, in accordance with subsection (b) below, and
(2) to honor drafts under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued for the
account of the Borrower; provided that the L/C Issuer shall not be
obligated to make any L/C Credit Extension with respect to any Letter
of Credit, and no Lender shall be obligated to participate in any
Letter of Credit if as of the date of such L/C Credit Extension, (x)
the Total Outstandings would exceed the lesser of (1) the Aggregate
Revolving Commitments and (2) the Borrowing Base, (y) the aggregate
Outstanding Amount of the Revolving Loans of any Lender, plus such
Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations would exceed such Lender's Revolving Commitment, or (z)
the Outstanding Amount of the L/C Obligations would exceed the Letter
of Credit Sublimit. Within the foregoing limits, and subject to the
terms and conditions hereof, the Borrower's ability to obtain Letters
of Credit shall be fully revolving,
22
and accordingly the Borrower may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed.
(ii) The L/C Issuer shall be under no obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the L/C Issuer from issuing such Letter of Credit, or any Law
applicable to the L/C Issuer or any request or directive (whether or
not having the force of law) from any Governmental Authority with
jurisdiction over the L/C Issuer shall prohibit, or request that the
L/C Issuer refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the L/C Issuer
with respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense which
was not applicable on the Closing Date and which the L/C Issuer in good
▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve (12) months
after the date of issuance or last renewal, unless the Required Lenders
have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate one or
more policies of the L/C Issuer; or
(E) such Letter of Credit is in an initial amount less than
$100,000, or is to be denominated in a currency other than Dollars.
(iii) The L/C Issuer shall be under no obligation to amend any Letter
of Credit if (A) the L/C Issuer would have no obligation at such time to issue
such Letter of Credit in its amended form under the terms hereof, or (B) the
beneficiary of such Letter of Credit does not accept the proposed amendment to
such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-
Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of the Borrower delivered to the L/C Issuer (with a
copy to the Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the Borrower.
Such Letter of Credit Application must be received by the L/C Issuer and the
Administrative Agent not later than 11:00 a.m. at least two Business Days (or
such later date and time as the L/C Issuer may agree in a particular instance in
its sole discretion) prior to the proposed issuance date or date of amendment,
as the case may be. In the case of a request for an initial issuance of a Letter
of Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C)
the expiry date thereof; (D) the name and address of the beneficiary thereof;
(E) the documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other matters as the
L/C Issuer may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall specify in
form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be
amended; (B) the proposed date of amendment thereof (which shall be a Business
Day); (C) the nature of the proposed amendment; and (D) such other matters as
the L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit Application,
the L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter of
Credit Application from the Borrower and, if not, the L/C Issuer will provide
the
23
Administrative Agent with a copy thereof. Upon receipt by the L/C Issuer of
confirmation from the Administrative Agent that the requested issuance or
amendment is permitted in accordance with the terms hereof, then, subject to the
terms and conditions hereof, the L/C Issuer shall, on the requested date, issue
a Letter of Credit for the account of the Borrower or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C Issuer's
usual and customary business practices. Immediately upon the issuance of each
Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer a risk participation in
such Letter of Credit in an amount equal to the product of such Lender's Pro
Rata Share times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion, agree to
issue a Letter of Credit that has automatic renewal provisions (each, an
"Auto-Renewal Letter of Credit"); provided that any such Auto-Renewal Letter of
Credit must permit the L/C Issuer to prevent any such renewal at least once in
each twelve-month period (commencing with the date of issuance of such Letter of
Credit) by giving prior notice to the beneficiary thereof not later than a date
certain (the "Nonrenewal Notice Date") in each such twelve-month period to be
agreed upon at the time such Letter of Credit is issued. Unless otherwise
directed by the L/C Issuer, the Borrower shall not be required to make a
specific request to the L/C Issuer for any such renewal. Once an Auto-Renewal
Letter of Credit has been issued, the Lenders shall be deemed to have authorized
(but may not require) the L/C Issuer to permit the renewal of such Letter of
Credit at any time to but not beyond an expiry date not later than the date
thirty (30) days prior to the Letter of Credit Expiration Date; provided,
however, that the L/C Issuer shall not permit any such renewal if (A) the L/C
Issuer has determined that it would have no obligation at such time to issue
such Letter of Credit in its renewed form under the terms hereof (by reason of
the provisions of Section 2.03(a)(ii) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that is
two Business Days before the Nonrenewal Notice Date (1) from the Administrative
Agent that the Required Lenders have elected not to permit such renewal or (2)
from the Administrative Agent, any Lender or the Borrower that one or more of
the applicable conditions specified in Section 5.02 is not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or to
the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and
the Administrative Agent a true and complete copy of such Letter of Credit or
amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of
any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify
the Borrower and the Administrative Agent thereof. Not later than 11:00 a.m. on
the date of any payment by the L/C Issuer under a Letter of Credit (each such
date, an "Honor Date"), the Borrower shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing. If the
Borrower fails to so reimburse the L/C Issuer by such time, the Administrative
Agent shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the "Unreimbursed Amount"), and the amount of such
Lender's Pro Rata Share thereof. In such event, the Borrower shall be deemed to
have requested a Borrowing of Revolving Loans that are Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02 for the
principal amount of Base Rate Loans, but subject to the amount of the unutilized
portion of the Aggregate Revolving Commitments and the conditions set forth in
Section 5.02 (other than the delivery of a Loan Notice). Any notice given by the
L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may
be given by telephone if immediately confirmed in writing; provided that the
lack of such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(ii) Each Lender (including the Lender acting as L/C Issuer) shall
upon any notice pursuant to Section 2.03(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer at the Administrative
Agent's Office in an amount equal to its Pro Rata Share of the Unreimbursed
Amount not later than 1:00 p.m. on the Business Day specified in such notice by
the Administrative Agent, whereupon, subject to the provisions of Section
2.03(c)(iii), each Lender that so makes funds available
24
shall be deemed to have made a Revolving Loan that is a Base Rate Loan to the
Borrower in such amount. The Administrative Agent shall remit the funds so
received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Borrowing of Revolving Loans that are Base Rate Loans because
the conditions set forth in Section 5.02 cannot be satisfied or for any other
reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is not so refinanced,
which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate. In such event, each Lender hereby
agrees to fund its Pro Rata Share of the applicable L/C Borrowing and, to the
extent applicable, each Lender's payment to the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed
payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its participation
obligation under this Section 2.03.
(iv) Until each Lender funds its Revolving Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount
drawn under any Letter of Credit, interest in respect of such Lender's Pro Rata
Share of such amount shall be solely for the account of the L/C Issuer.
(v) Each Lender's obligation to make Revolving Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit,
as contemplated by this Section 2.03(c), shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the L/C Issuer, the Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, (C) any failure to
satisfy the conditions set forth in Section 5.02; or (D) any other occurrence,
event or condition, whether or not similar to any of the foregoing; provided,
however, that each Lender's obligation to make Revolving Loans pursuant to this
Section 2.03(c) (but not such Lender's obligation to fund an L/C Borrowing
pursuant to Section 2.03(c)(iii)) is subject to the conditions set forth in
Section 5.02 (other than delivery by the Borrower of a Loan Notice). No such
making of an L/C Advance shall relieve or otherwise impair the obligation of
Borrower to reimburse the L/C Issuer for the amount of any payment made by the
L/C Issuer under any Letter of Credit, together with interest as provided
herein.
(vi) If any Lender fails to make available to the Administrative
Agent for the account of the L/C Issuer any amount required to be paid by such
Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time
specified in Section 2.03(c)(ii), the L/C Issuer shall be entitled to recover
from such Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to the L/C
Issuer at a rate per annum equal to the Federal Funds Rate from time to time in
effect. A certificate of the L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (vi)
shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C Advance in
respect of such payment in accordance with Section 2.03(c), if the
Administrative Agent receives for the account of the L/C Issuer any payment in
respect of the related Unreimbursed Amount or interest thereon (whether directly
from the Borrower or otherwise, including proceeds of Cash Collateral applied
thereto by the Administrative Agent), the Administrative Agent will distribute
to such Lender its Pro Rata Share thereof (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender's
L/C Advance was outstanding) in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 11.06 (including
pursuant to any settlement entered into by the L/C Issuer in its discretion),
each Lender shall pay to the Administrative Agent for the account of the L/C
Issuer its Pro Rata Share thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such
25
amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the Borrower to
reimburse the L/C Issuer for each drawing under each Letter of Credit and to
repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) the existence of any claim, counterclaim, set-off,
defense or other right that the Borrower may have at any time against
any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by such Letter
of Credit or any agreement or instrument relating thereto, or any
unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any
payment made by the L/C Issuer under such Letter of Credit to any
Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to,
or a discharge of, the Borrower.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
any Agent-Related Person nor any of the respective correspondents, participants
or assignees of the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit Application. The
Borrower hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude the Borrower's
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, any
Agent-Related Person, nor any of the respective correspondents, participants or
assignees of the L/C Issuer, shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.03(e); provided,
however, that anything in such clauses to the contrary notwithstanding, the
Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower which
the Borrower proves were caused by the L/C Issuer's willful misconduct or gross
negligence or the L/C Issuer's willful
26
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i)
if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any Letter of Credit may for any
reason remain outstanding and partially or wholly undrawn, the Borrower shall
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the
date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case
may be). For purposes hereof, "Cash Collateralize" means to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented to
by the Lenders). Derivatives of such term have corresponding meanings. The
Borrower hereby grants to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, a security interest in all such cash, deposit accounts
and all balances therein and all proceeds of the foregoing. Cash collateral
shall be maintained in blocked, interest bearing deposit accounts held at the
Administrative Agent and amounts of cash collateral deposited pursuant to the
terms hereof which are, pursuant to the terms of this Agreement, subsequently
returned to the Borrower, shall include interest on such amounts from the date
deposited; provided, that the amount of such interest to be returned to the
Borrower shall be determined by the Administrative Agent and such determination
shall be conclusive and binding in the absence of manifest error.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed
by the L/C Issuer and the Borrower when a Letter of Credit is issued, the rules
of the "International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its Pro
Rata Share a Letter of Credit fee for each standby Letter of Credit equal to the
Applicable Spread applicable to Eurodollar Rate Borrowings times the daily
maximum amount available to be drawn under such Letter of Credit (whether or not
such maximum amount is then in effect under such Letter of Credit). Such letter
of credit fees shall be computed on a quarterly basis in advance and be
calculated based on the Applicable Spread in effect as of the date on which each
such payment is due. Such letter of credit fees shall be due and payable on the
first Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. In addition to all other fees payable pursuant to the terms of this
Agreement, the Borrower promises, with respect to each Letter of Credit, to pay
to the L/C Issuer without sharing by the other Lenders (i) a letter of credit
fronting fee (payable upon issuance or extension of each Letter of Credit) equal
to the greater of (A) of one-eighth of one percent (0.125%) on the maximum
amount available to be drawn under such Letter of Credit (whether or not such
maximum amount is then in effect under such Letter of Credit), and (B)
$2,000.00, and (ii) the customary charges from time to time of the Issuing
Lender with respect to the issuance, amendment, transfer, administration,
cancellation and conversion of, and drawings under, such Letters of Credit. Such
fees shall be due and payable on demand, shall be fully earned when paid and
shall not be refundable for any reason whatsoever. For purposes of this Section
2.03(j) each renewal of any Letter of Credit, including an Auto-Renewal Letter
of Credit, shall be considered an issuance of a new Letter of Credit.
(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
27
(l) Notice to Lenders. L/C Issuer shall make good faith efforts to
notify each of the Lenders of the issuance of any Letter of Credit hereunder
within 15 days of the issuance thereof.
2.04 Prepayments.
(a) Voluntary Prepayments of Loans. The Borrower may, upon written
notice to the Administrative Agent, at any time or from time to time voluntarily
prepay Loans in whole or in part without premium or penalty; provided that (i)
such notice must be received by the Administrative Agent not later than 11:00
a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans and (B) one Business Day prior to the prepayment of Base Rate Loans; (ii)
any prepayment of Eurodollar Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if less, the
entire principal amount thereof then outstanding); and (iii) any prepayment of
Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple
of $100,000 in excess thereof (or, if less, the entire principal amount thereof
then outstanding). Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Loans to be prepaid. The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender's Pro Rata Share of such prepayment. If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all
accrued interest thereon, together with any additional amounts required pursuant
to Section 3.05. Each such prepayment shall be applied to the Loans of the
Lenders in accordance with their respective Pro Rata Shares.
(b) Mandatory Prepayments.
(i) Outstanding Principal in Excess of Aggregate Revolving
Commitments. If, for any reason, the Total Outstandings at any time
exceed the lesser of (A) the Aggregate Revolving Commitments and (B)
the Borrowing Base then in effect, the Borrower shall immediately
(subject to the cure period provided in Section 8.12(b) in the event a
lease formerly qualifying as an Eligible Lease subsequently fails to
qualify as such) prepay Revolving Loans and/or Cash Collateralize the
L/C Obligations in an aggregate amount equal to such excess; provided,
however, that the Borrower shall not be required to Cash Collateralize
the L/C Obligations pursuant to this Section 2.04(b)(i) unless after
the prepayment in full of the Revolving Loans the Total Outstandings
exceed the lesser of (A) the Aggregate Revolving Commitments then in
effect and (B) the Borrowing Base.
(ii) Eligible Lease Rent Offsets, Reductions and
Curtailments. If, for any reason, the rent payable with respect to any
lease qualifying as an Eligible Lease is, in any manner, offset,
reduced or curtailed, Borrower shall immediately (without any cure
period) prepay Revolving Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to (A) the Eligible Lease NPV
as calculated with respect to the applicable Eligible Lease
immediately before such offset, reduction or curtailment, less (B) the
Eligible Lease NPV with respect to such lease as calculated
immediately after such offset, reduction or curtailment.
(iii) Application of Mandatory Prepayments. All amounts
required to be paid pursuant to this Section 2.04(b) shall be applied
to Revolving Loans and (after all Revolving Loans have been repaid) to
Cash Collateralize L/C Obligations. Within the parameters of the
applications set forth in the previous sentence, prepayments shall be
applied first to Base Rate Loans and then to Eurodollar Rate Loans in
direct order of Interest Period maturities. All prepayments under this
Section 2.04(b) shall be subject to Section 3.05, but otherwise without
premium or penalty, and shall be accompanied by interest on the
principal amount prepaid through the date of prepayment.
(iv) Prepayment Account. If the Borrower is required to make
a mandatory prepayment of Eurodollar Rate Loans under this Section
2.04(b), the Borrower shall have the right, in lieu of making such
prepayment in full, to deposit an amount equal to such mandatory
prepayment with the Administrative Agent in a cash collateral account
maintained (pursuant to documentation reasonably satisfactory to the
Administrative Agent) by and in the sole dominion and control of the
Administrative Agent. Any amounts so deposited shall be held by the
Administrative Agent as collateral for the prepayment of such
Eurodollar Rate Loans and shall be applied to the prepayment of the
applicable Eurodollar Rate Loans at the end of the
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current Interest Periods applicable thereto. At the request of the
Borrower, amounts so deposited shall be invested by the Administrative
Agent in Cash Equivalents maturing prior to the date or dates on which
it is anticipated that such amounts will be applied to prepay such
Eurodollar Rate Loans; any interest earned on such Cash Equivalents
will be for the account of the Borrower and the Borrower will deposit
with the Administrative Agent the amount of any loss on any such Cash
Equivalents to the extent necessary in order that the amount of the
prepayment to be made with the deposited amounts may not be reduced.
2.05 Termination, Reduction or Increase of Aggregate Revolving
Commitments.
(a) Voluntary Termination or Reductions. Subject in all cases to
the provisions of Section 2.06 hereof, the Borrower may, upon written notice to
the Administrative Agent, terminate the Aggregate Revolving Commitments, or from
time to time permanently reduce the Aggregate Revolving Commitments; provided
that (i) any such notice shall be received by the Administrative Agent not later
than 11:00 a.m. five Business Days prior to the date of termination or
reduction, (ii) any such partial reduction shall be in an aggregate amount of
$1,000,000.00 or any whole multiple of $500,000.00 in excess thereof, (iii) the
Borrower shall not terminate or reduce the Aggregate Revolving Commitments if,
after giving effect thereto and to any concurrent prepayments hereunder, the
Total Outstandings would exceed the Aggregate Revolving Commitments, and (iv)
if, after giving effect to any reduction of the Aggregate Revolving Commitments,
the Letter of Credit Sublimit then in effect exceeds the amount of the Aggregate
Revolving Commitments, the Letter of Credit Sublimit shall be automatically
reduced by the amount of such excess.
(b) Voluntary Increases. Following the Closing Date, the Aggregate
Revolving Commitments may be increased to an amount of up to $150,000,000.00 if
(i) the Borrower requests such increase in writing to the Administrative Agent,
(ii) the Arranger is able to syndicate the amount of such increase (A) to one or
more financial institutions qualifying as an Eligible Assignee and (B) in a
manner otherwise in accordance with the terms and conditions set forth in the
Syndication Letter, (iii) such increase does not increase the amount of the
Revolving Commitment of any Lender without the written consent of such Lender,
(iv) the Borrower executes new promissory notes reflecting the increase in the
Aggregate Revolving Commitments and executes such other amendments to the Loan
Documents as are deemed necessary by the Administrative Agent, (v) no Default or
Event of Default exists at such time and (vi) the Borrower pays all fees
required by the Fee Letter in connection with such increase in the Aggregate
Revolving Commitments and all costs and expenses (including Attorney Costs)
incurred by the Administrative Agent in documenting or implementing such
increase. All of the terms and conditions of the Loan Documents shall apply to
the increased amount of the Aggregate Revolving Commitments as if such amount
were in effect as of the date hereof. Each Lender that may be a party hereto
from time to time hereby acknowledges that the Aggregate Revolving Commitments
may be increased pursuant to this Section 2.05(b) regardless of whether such
Lender approves such increase or increases its Revolving Commitment hereunder;
provided, that Arranger hereby agrees to offer to each existing Lender, on terms
and conditions similar to those being offered to other prospective lenders, a
portion of any increase in the Aggregate Revolving Commitments equal to such
Lender's Pro Rata Share of the Aggregate Revolving Commitments immediately prior
to such increase. Notwithstanding anything to the contrary contained herein, the
Borrower may request an increase in the Aggregate Revolving Commitments no more
than once during the term of this Agreement.
(c) General. The Administrative Agent will promptly notify the
Lenders of (i) any such notice of termination or reduction of the Aggregate
Revolving Commitments and (ii) any requested increase in the Aggregate Revolving
Commitments. Any reduction of the Aggregate Revolving Commitments shall be
applied to the Revolving Commitment of each Lender according to its Pro Rata
Share. All fees accrued until the effective date of any termination of the
Aggregate Revolving Commitments shall be paid on the effective date of such
termination.
2.06 Repayment of Loans.
The Borrower shall repay to the Lenders the aggregate principal amount
of all then-outstanding Revolving Loans and all other Obligations under the Loan
Documents and all Aggregate Revolving Commitments shall expire on the earlier to
occur of (a) the Maturity Date; (b) the first Business Day following the Closing
Date on which the Aggregate Revolving Commitments equal an amount less than
$35,000,000.00; (c) the date ninety (90) days following any date on which the
Borrowing Base equals an amount less than $15,000,000.00 (to the extent such
date occurs more than one hundred eighty (180) days following the Agreement
Date) unless, during such ninety (90) day period, the Borrower is able to (i)
cause the Borrowing Base to again exceed $15,000,000.00 and (ii) provide the
29
Administrative Agent with evidence, satisfactory to the Administrative Agent in
its sole discretion, of such increase in the Borrowing Base (such evidence to
include, in each case and without limitation, a Borrowing Base Certificate as of
the date on which the Borrowing Base again exceeds $15,000,000.00); and (d) any
other date on which such repayment is required pursuant to the terms hereof
(whether as a result of the acceleration of the Obligations pursuant to Article
IX hereof or otherwise).
2.07 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar
Rate for such Interest Period plus the Applicable Spread; and (ii) each Base
Rate Loan shall bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Spread.
(b) If any Event of Default predicated on Sections 9.01(a) or (f)
shall occur, all outstanding Obligations hereunder shall, until repayment in
full of such Obligations or the curing of the applicable Event of Default, bear
interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws. Furthermore,
upon the request of the Required Lenders, while any other Event of Default
exists, the Borrower shall pay interest on the principal amount of all
outstanding Obligations hereunder at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws. Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on
each Interest Payment Date and at such other times as may be specified herein.
Interest hereunder shall be due and payable in accordance with the terms hereof
before and after judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law.
2.08 Fees.
In addition to those fees described in subsections (i) and (j) of
Section 2.03:
(a) Unused Fee. In consideration of the Revolving
Commitments of the Lenders hereunder, the Borrower promises to pay to
the Administrative Agent for the account of each Lender a fee (the
"Unused Fee"), in arrears, on (i) the last Business Day of each March,
June, September and December, (ii) each date on which the Aggregate
Revolving Commitments are, for any reason, reduced and (iii) on the
Maturity Date, for the immediately preceding quarter (or portion
thereof) (each such quarter or portion thereof for which the
Outstanding Commitment Fee is payable hereunder being herein referred
to as an "Unused Fee Calculation Period"), beginning with the first of
such dates to occur after the Closing Date, calculated in accordance
with the following:
---------------------------------------------------------------------------
Unused Percentage for Unused Fee Unused Fee Amount
Calculation Period
---------------------------------------------------------------------------
** 66 2/3% 0.35% per annum multiplied by the
applicable Unused Revolving Commitment
Amount
---------------------------------------------------------------------------
** 33 1/3% but *** 66 2/3% 0.25% per annum multiplied by the
applicable Unused Revolving Commitment
Amount
---------------------------------------------------------------------------
** 33 1/3% 0.20% per annum multiplied by the
applicable Unused Revolving Commitment
Amount
---------------------------------------------------------------------------
** denotes more than
*** denotes less than or equal to
The Unused Fee shall commence to accrue on the Closing Date.
30
(b) Agent's Fees. The Borrower promises to pay to the
Administrative Agent, for its own account, for the account of the
Issuing Lender and for the account of the Arranger, as applicable, the
fees referred to in the Fee Letter. Such fees shall be fully earned
when paid and shall not be refundable for any reason whatsoever.
2.09 Computation of Interest and Fees.
All computations of interest for Base Rate Loans when the Base Rate is
determined by Administrative Agent's "prime rate" shall be made on the basis of
a year of 365 or 366 days, as the case may be, and actual days elapsed. All
other computations of fees and interest shall be made on the basis of a 360-day
year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day year).
Interest shall accrue on each Loan for the day on which the Loan is made, and
shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid, provided that any Loan that is repaid on the same
day on which it is made shall, subject to Section 2.11(a), bear interest for one
day.
2.10 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced
by one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business. The accounts or records
maintained by the Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Credit Extensions made by the Lenders
to the Borrower and the interest and payments thereon. Any failure to so record
or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, the Borrower shall execute and
deliver to such Lender (through the Administrative Agent) a promissory note
which shall evidence such Lender's Loans in addition to such accounts or
records. Each such promissory note shall be in the form of Exhibit C (a
"Revolving Note"). Each Lender may attach schedules to its Note and endorse
thereon the date, Type (if applicable), amount and maturity of its Loans and
payments with respect thereto.
(b) In addition to the accounts and records referred to in
subsection (a), each Lender and the Administrative Agent shall maintain in
accordance with its usual practice accounts or records evidencing the purchases
and sales by such Lender of participations in Letters of Credit. In the event of
any conflict between the accounts and records maintained by the Administrative
Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of
manifest error.
2.11 Payments Generally.
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Pro Rata Share (or other applicable share as provided herein) of
such payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a
day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be.
(c) Unless the Borrower or any Lender has notified the
Administrative Agent, prior to the date any payment is required to be made by it
to the Administrative Agent hereunder, that the Borrower or such Lender, as the
case may be, will not make such payment, the Administrative Agent may assume
that the Borrower or such Lender, as the case may be, has timely made such
payment and may (but shall not be so required to), in reliance
31
thereon, make available a corresponding amount to the Person entitled thereto.
If and to the extent that such payment was not in fact made to the
Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion
of such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect
of each day from and including the date such amount was made available
by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds at
the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender
shall forthwith on demand pay to the Administrative Agent the amount
thereof in immediately available funds, together with interest thereon
for the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender's Loan included in the
applicable Borrowing. If such Lender does not pay such amount forthwith
upon the Administrative Agent's demand therefor, the Administrative
Agent may make a demand therefor upon the Borrower, and the Borrower
shall pay such amount to the Administrative Agent, together with
interest thereon for the Compensation Period at a rate per annum equal
to the rate of interest applicable to the applicable Borrowing. Nothing
herein shall be deemed to relieve any Lender from its obligation to
fulfill its Commitment or to prejudice any rights which the
Administrative Agent or the Borrower may have against any Lender as a
result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (c) shall be conclusive,
absent manifest error.
(d) If any Lender makes available to the Administrative Agent
funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the
Borrower by the Administrative Agent because the conditions to the applicable
Credit Extension set forth in Article V are not satisfied or waived in
accordance with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such Lender, without
interest.
(e) The obligations of the Lenders hereunder to make Loans and to
fund participations in Letters of Credit are several and not joint. The failure
of any Lender to make any Loan or to fund any such participation on any date
required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Loan or purchase its participation.
(f) Nothing herein shall be deemed to obligate any Lender to
obtain the funds for any Loan in any particular place or manner or to constitute
a representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.12 Sharing of Payments.
If, other than as expressly provided elsewhere herein, any Lender shall
obtain on account of the Loans made by it, or the participations in L/C
Obligations held by it, any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) in excess of its ratable share
(or other share contemplated hereunder) thereof, such Lender shall immediately
(a) notify the Administrative Agent of such fact, and (b) purchase from the
other Lenders such participations in the Loans made by them and/or such
subparticipations in the participations in L/C Obligations held by them, as the
case may be, as shall be necessary to cause such purchasing Lender to share the
excess payment in respect of such Loans or such participations, as the case may
be, pro rata with each of them; provided, however, that if all or any portion of
such excess payment is thereafter recovered from the purchasing Lender under any
of the circumstances described in Section 11.06 (including pursuant to any
settlement entered into by the purchasing Lender in its discretion), such
purchase shall to that extent be rescinded and each other Lender shall repay to
the purchasing Lender the purchase price paid therefor, together with an amount
equal to
32
such paying Lender's ratable share (according to the proportion of (i) the
amount of such paying Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered,
without further interest thereon. The Borrower agrees that any Lender so
purchasing a participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off, but subject to Section 11.09) with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the amount
of such participation. The Administrative Agent will keep records (which shall
be conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Lenders following
any such purchases or repayments. Each Lender that purchases a participation
pursuant to this Section shall from and after such purchase have the right to
give all notices, requests, demands, directions and other communications under
this Agreement with respect to the portion of the Obligations purchased to the
same extent as though the purchasing Lender were the original owner of the
Obligations purchased.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Any and all payments by any Loan Party to or for the account
of the Administrative Agent or any Lender under any Loan Document shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its
overall net income, and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the
Laws of which the Administrative Agent or such Lender, as the case may be, is
organized or maintains a lending office (all such non-excluded taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar charges,
and liabilities being hereinafter referred to as "Taxes"). If any Loan Party
shall be required by any Laws to deduct any Taxes from or in respect of any sum
payable under any Loan Document to the Administrative Agent or any Lender, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section), each of the Administrative Agent and such Lender receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) such Loan Party shall make such deductions, (iii) such Loan Party
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable Laws, and (iv) within 30 days after the
date of such payment, such Loan Party shall furnish to the Administrative Agent
(which shall forward the same to such Lender) the original or a certified copy
of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes
or Other Taxes from or in respect of any sum payable under any Loan Document to
the Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time interest
is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all
taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.
(d) The Borrower agrees to indemnify the Administrative Agent and
each Lender for (i) the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section) paid by the Administrative Agent and such Lender, (ii)
amounts payable under Section 3.01(c) and (iii) any liability (including
additions to tax, penalties, interest and expenses) arising therefrom or with
respect thereto, in each case whether or not such Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
Payment under this subsection (d) shall be made within 30 days after the date
the Lender or the Administrative Agent makes a demand therefor.
33
3.02 Illegality.
If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to
determine or charge interest rates based upon the Eurodollar Rate, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent,
any obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such
Lender notifies the Administrative Agent and the Borrower that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice,
the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted. Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.
3.03 Inability to Determine Rates.
If the Required Lenders determine that for any reason adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or
that the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to
such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter, the obligation of the Lenders
to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such
notice. Upon receipt of such notice, the Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on
Eurodollar Rate Loans.
(a) If any Lender determines that as a result of the introduction of or
any change in or in the interpretation of any Law, or such Lender's compliance
therewith, there shall be any increase in the cost to such Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Loans or (as the case may
be) issuing or participating in Letters of Credit, or a reduction in the amount
received or receivable by such Lender in connection with any of the foregoing
(excluding for purposes of this subsection (a) any such increased costs or
reduction in amount resulting from (i) Taxes or Other Taxes (as to which
Section 3.01 shall govern), (ii) changes in the basis of taxation of overall net
income or overall gross income by the United States or any foreign jurisdiction
or any political subdivision of either thereof under the Laws of which such
Lender is organized or has its Lending Office, and (iii) reserve requirements
contemplated by Section 3.04(c)), then from time to time upon demand of such
Lender (with a copy of such demand to the Administrative Agent), the Borrower
shall pay to such Lender such additional amounts as will compensate such Lender
for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation thereof, or
compliance by such Lender (or its Lending Office) therewith, has the effect of
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration its policies with respect to capital adequacy and
such Lender's desired return on capital), then from time to time upon demand of
such Lender (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such reduction.
(c) The Borrower shall pay to each Lender, as long as such Lender shall
be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional interest on the unpaid principal amount
of each Eurodollar Rate
34
Loan equal to the actual costs of such reserves allocated to such Loan by such
Lender (as determined by such Lender in good faith, which determination shall be
conclusive), which shall be due and payable on each date on which interest is
payable on such Loan, provided the Borrower shall have received at least 15
days' prior notice (with a copy to the Administrative Agent) of such additional
interest from such Lender. If a Lender fails to give notice 15 days prior to the
relevant Interest Payment Date, such additional interest shall be due and
payable 15 days from receipt of such notice.
3.05 Funding Losses.
Upon demand of any Lender (with a copy to the Administrative Agent) from
time to time, the Borrower shall promptly compensate such Lender for and hold
such Lender harmless from any loss, cost or expense incurred by it as a result
of:
(a) any continuation, conversion, payment or prepayment of any
Loan other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or
convert any Loan other than a Base Rate Loan on the date or in the amount
notified by the Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than
the last day of the Interest Period therefor as a result of a request by
the Borrower pursuant to Section 11.16;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit
or other borrowing in the London interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Eurodollar Rate Loan was
in fact so funded.
3.06 Matters Applicable to all Requests for Compensation.
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under Section 3.01
or 3.04, the Borrower may replace such Lender in accordance with Section 11.16.
3.07 Survival.
All of the Borrower's obligations under this Article III shall survive
termination of the Aggregate Revolving Commitments and repayment of all other
Obligations hereunder.
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ARTICLE IV
GUARANTY
4.01 The Guaranty.
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each Affiliate of a Lender that enters into a Swap Contract with a Loan
Party, and the Administrative Agent as hereinafter provided, as primary obligor
and not as surety, the prompt payment of the Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise) strictly in accordance with the
terms thereof. The Guarantors hereby further agree that if any of the
Obligations are not paid in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise), the Guarantors will, jointly and severally, promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Obligations, the same will be
promptly paid in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise)
in accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in any
other of the Loan Documents or Swap Contracts, the obligations of each Guarantor
under this Agreement and the other Loan Documents shall be limited to an
aggregate amount equal to the largest amount that would not render such
obligations subject to avoidance under the Debtor Relief Laws or any comparable
provisions of any applicable state law.
4.02 Obligations Unconditional.
The obligations of the Guarantors under Section 4.01 are joint and several,
absolute and unconditional, irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Loan Documents or Swap Contracts, or
any other agreement or instrument referred to therein, or any substitution,
release, impairment or exchange of any other guarantee of or security for any of
the 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 or guarantor,
it being the intent of this Section 4.02 that the obligations of the Guarantors
hereunder shall be absolute and unconditional under any and all circumstances.
Each Guarantor agrees that such Guarantor shall have no right of subrogation,
indemnity, reimbursement or contribution against the Borrower or any other
Guarantor for amounts paid under this Article IV until such time as the
Obligations have been Fully Satisfied. Without limiting the generality of the
foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the
liability of any Guarantor hereunder which shall remain absolute and
unconditional as described above:
(a) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of the
Obligations shall be extended, or such performance or compliance shall be
waived;
(b) any of the acts mentioned in any of the provisions of any of
the Loan Documents, any Swap Contract between any Loan Party and any
Lender, or any Affiliate of a Lender, or any other agreement or instrument
referred to in the Loan Documents or such Swap Contracts shall be done or
omitted;
(c) the maturity of any of the Obligations shall be accelerated,
or any of the Obligations shall be modified, supplemented or amended in any
respect, or any right under any of the Loan Documents, any Swap Contract
between any Loan Party and any Lender, or any Affiliate of a Lender, or any
other agreement or instrument referred to in the Loan Documents or such
Swap Contracts shall be waived or any other guarantee of any of the
Obligations or any security therefor shall be released, impaired or
exchanged in whole or in part or otherwise dealt with;
(d) any Lien granted to, or in favor of, the Administrative Agent
or any Lender or Lenders as security for any of the Obligations shall fail
to attach or be perfected; or
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(e) any of the Obligations shall be determined to be void or
voidable (including, without limitation, for the benefit of any creditor of
any Guarantor) or shall be subordinated to the claims of any Person
(including, without limitation, any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Administrative Agent or any Lender
exhaust any right, power or remedy or proceed against any Person under any of
the Loan Documents, any Swap Contract between any Loan Party and any Lender, or
any Affiliate of a Lender, or any other agreement or instrument referred to in
the Loan Documents or such Swap Contracts, or against any other Person under any
other guarantee of, or security for, any of the Obligations.
4.03 Reinstatement.
The obligations of the Guarantors under this Article IV 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 Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each Lender
on demand for all reasonable costs and expenses (including, without limitation,
fees and expenses of counsel) incurred by the Administrative Agent or such
Lender in connection with such rescission or restoration, including 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.
4.04 Certain Additional Waivers.
Each Guarantor agrees that such Guarantor shall have no right of recourse
to security for the Obligations, except through the exercise of rights of
subrogation pursuant to Section 4.02 and through the exercise of rights of
contribution pursuant to Section 4.06.
4.05 Remedies.
The Guarantors agree that, to the fullest extent permitted by law, as between
the Guarantors, on the one hand, and the Administrative Agent and the Lenders,
on the other hand, the Obligations may be declared to be forthwith due and
payable as provided in Section 9.02 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said
Section 9.02) for purposes of Section 4.01 notwithstanding any stay, injunction
or other prohibition preventing such declaration (or preventing the Obligations
from becoming automatically due and payable) as against any other Person and
that, in the event of such declaration (or the Obligations being deemed to have
become automatically due and payable), the Obligations (whether or not due and
payable by any other Person) shall forthwith become due and payable by the
Guarantors for purposes of Section 4.01. The Guarantors acknowledge and agree
that their obligations hereunder are secured in accordance with the terms of the
Collateral Documents and that the Lenders may exercise their remedies thereunder
in accordance with the terms thereof.
4.06 Rights of Contribution.
The Guarantors hereby agree as among themselves that, if any Guarantor
shall make an Excess Payment (as defined below), such Guarantor shall have a
right of contribution from each other Guarantor in an amount equal to such other
Guarantor's Contribution Share (as defined below) of such Excess Payment. The
payment obligations of any Guarantor under this Section 4.06 shall be
subordinate and subject in right of payment to the Obligations until such time
as the Obligations have been Fully Satisfied, and none of the Guarantors shall
exercise any right or remedy under this Section 4.06 against any other Guarantor
until such Obligations have been Fully Satisfied. For purposes of this
Section 4.06, (a) "Excess Payment" shall mean the amount paid by any Guarantor
in excess of its Ratable Share of any Guaranteed Obligations; (b) "Ratable
Share" shall mean, for any Guarantor in respect of any payment of Obligations,
the ratio (expressed as a percentage) as of the date of such payment of
Guaranteed Obligations of (i) the amount by which the aggregate present fair
salable value of all of its assets and properties exceeds the amount of all
debts and liabilities of such Guarantor (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of such
Guarantor hereunder) to (ii) the amount by which the aggregate present fair
salable value of all assets and other properties of all of the Loan Parties
exceeds the amount of all of the debts and liabilities (including contingent,
37
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of the Loan Parties hereunder) of the Loan Parties; provided,
however, that, for purposes of calculating the Ratable Shares of the Guarantors
in respect of any payment of Obligations, any Guarantor that became a Guarantor
subsequent to the date of any such payment shall be deemed to have been a
Guarantor on the date of such payment and the financial information for such
Guarantor as of the date such Guarantor became a Guarantor shall be utilized for
such Guarantor in connection with such payment; (c) "Contribution Share" shall
mean, for any Guarantor in respect of any Excess Payment made by any other
Guarantor, the ratio (expressed as a percentage) as of the date of such Excess
Payment of (i) the amount by which the aggregate present fair salable value of
all of its assets and properties exceeds the amount of all debts and liabilities
of such Guarantor (including contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder) to (ii) the amount by which the aggregate present fair salable value
of all assets and other properties of the Loan Parties other than the maker of
such Excess Payment exceeds the amount of all of the debts and liabilities
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of the Loan Parties) of the Loan Parties other
than the maker of such Excess Payment; provided, however, that, for purposes of
calculating the Contribution Shares of the Guarantors in respect of any Excess
Payment, any Guarantor that became a Guarantor subsequent to the date of any
such Excess Payment shall be deemed to have been a Guarantor on the date of such
Excess Payment and the financial information for such Guarantor as of the date
such Guarantor became a Guarantor shall be utilized for such Guarantor in
connection with such Excess Payment; and (d) "Guaranteed Obligations" shall mean
the Obligations guaranteed by the Guarantors pursuant to this Article IV. This
Section 4.06 shall not be deemed to affect any right of subrogation, indemnity,
reimbursement or contribution that any Guarantor may have under Law against the
Borrower in respect of any payment of Guaranteed Obligations. Notwithstanding
the foregoing, all rights of contribution against any Guarantor shall terminate
from and after such time, if ever, that such Guarantor shall be relieved of its
obligations in accordance with Section 10.11.
4.07 Guarantee of Payment; Continuing Guarantee.
The guarantee in this Article IV is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Obligations
whenever arising.
ARTICLE V
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01 Conditions of Initial Credit Extension.
The obligation of each Lender to make its initial Credit Extension
hereunder is subject to satisfaction of the following conditions precedent:
(a) Loan Documents, Organization Documents, Etc. The
Administrative Agent's receipt of the following, each of which shall be
originals or facsimiles (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of the signing
Loan Party, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent and its legal
counsel:
(i) executed counterparts of this Agreement and the other
Loan Documents;
(ii) a Note executed by the Borrower in favor of each
Lender;
(iii) copies of the Organization Documents of each Loan Party
certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other
jurisdictionof its incorporation or organization, where applicable,
and certifiedby a secretary or assistant secretary of such Loan
Party to be true and correct as of the Closing Date;
(iv) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as the Administrative Agent may require
evidencing the identity, authority and capacity of each Responsible
Officer thereof
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authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a
party;
(v) such documents and certifications as the Administrative
Agent may reasonably require to evidence that each Loan Party is
duly organized or formed, and is validly existing, in good standing
and qualified to engage in business in (A) the jurisdiction of its
incorporation or organization and (B) each jurisdiction where its
ownership, lease or operation of properties or the conduct of its
business requires such qualification, except to the extent that
failure to do so could not reasonably be expected to have a Material
Adverse Effect; and
(vi) a fully executed copy of the Service Agreement.
(b) Opinions of Counsel. The Administrative Agent shall have
received, in each case dated as of the Closing Date and in form and
substance reasonably satisfactory to the Administrative Agent:
(i) a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, general
counsel for the Loan Parties (which opinion shall, in any case,
include a non-consolidation opinion with respect to the Parent and
the Borrower and Guarantors);
(ii) a legal opinion of special local counsel for each Loan
Party not organized in the State of Delaware; and
(iii) a legal opinion of special local counsel for the Loan
Parties for each state in which any Underlying Asset is located.
(c) Personal Property Collateral. The Administrative Agent shall
have received:
(i) searches of Uniform Commercial Code filings in the
jurisdiction of the chief executive office of each Loan Party and
each jurisdiction where any Collateral is located or where a filing
would need to be made in order to perfect the Administrative Agent's
security interest in the Collateral, copies of the financing
statements on file in such jurisdictions and evidence that no Liens
exist other than Permitted Liens;
(ii) duly executed UCC financing statements for each
appropriate jurisdiction as is necessary, in the Administrative
Agent's sole discretion, to perfect the Administrative Agent's
security interest in the Collateral;
(iii) all certificates evidencing any certificated Capital
Stock pledged to the Administrative Agent pursuant to the Pledge
Agreements, together with duly executed in blank, undated stock
powers attached thereto (unless, with respect to the pledged Capital
Stock of any Foreign Subsidiary, such stock powers are deemed
unnecessary by the Administrative Agent in its reasonable discretion
under the law of the jurisdiction of incorporation of such Person);
(iv) duly executed notices of grant of security interest in
the form required by the Pledge Agreements as are necessary, in the
Administrative Agent's sole discretion, to perfect the
Administrative Agent's security interest in the Collateral; and
(v) duly executed consents as are necessary, in the
Administrative Agent's sole discretion, to perfect the
Administrative Agent's security interest in the Collateral.
(d) Real Property Collateral and Related Matters. The
Administrative Agent shall have received
(i) copies of each Eligible Lease and all amendments,
modifications, supplements or other documents related thereto;
39
(ii) evidence of the applicable Loan Parties' ownership
interest in each Underlying Asset;
(iii) evidence, with respect to each Eligible Lease, of the
recordation of a memorandum of lease or similar instrument meeting the
requirements of clause (j) of the definition of "Eligible Lease";
(iv) fully executed and notarized Assignments of Leases with
respect to each existing Eligible Lease, in each case in form and
substance reasonably satisfactory to the Administrative Agent and in
recordable form in each jurisdiction in which an Underlying Asset is
located; and
(v) such consents and agreements, estoppel(s) and/or
subordination, non-disturbance and attornment agreement(s) from each
tenant under each Eligible Lease, in each case in form and substance
acceptable to the Administrative Agent, as may be required by the
Administrative Agent as conditions precedent to the applicable lease
qualifying as an Eligible Lease hereunder.
(e) Opening Borrowing Base and Compliance Report. Receipt by the
Administrative Agent of a Borrowing Base Certificate as of the Closing Date
and certified by a Responsible Officer of the Borrower to be true and
correct as of the Closing Date.
(f) Evidence of Insurance. Receipt by the Administrative Agent of
copies of insurance policies or certificates of insurance of the Loan
Parties (or the tenants under the Eligible Leases) evidencing liability and
casualty insurance meeting the requirements set forth in the Loan
Documents.
(g) Government Consent. Receipt by the Administrative Agent of
evidence that all governmental, shareholder and material third party
consents and approvals necessary or desirable in connection with the
consummation of the transactions described herein and expiration of all
applicable waiting periods without any action being taken by any authority
that could restrain, prevent or impose any material adverse conditions on
the transactions described herein or that could seek or threaten any of the
foregoing, and no law or regulation shall be applicable which in the
judgment of the Administrative Agent could have such effect.
(h) Syndication Letter. The Arranger shall have received from the
Borrower a fully executed original of the Syndication Letter.
(i) Officer's Certificates. The Administrative Agent shall have
received a certificate or certificates executed by a Responsible Officer of
the Borrower as of the Closing Date, in form and substance satisfactory to
the Administrative Agent, stating that (A) the conditions specified in
Sections 5.02(a) and (b) have been satisfied, (B) each Loan Party is in
compliance with all existing material financial obligations, (C) all
governmental, shareholder and third party consents and approvals, if any,
with respect to the Loan Documents and the transactions contemplated
thereby have been obtained (and attaching copies thereof), (D) no action,
suit, investigation or proceeding is pending or threatened in any court or
before any arbitrator or governmental instrumentality that purports to
affect any Loan Party or any transaction contemplated by the Loan
Documents, if such action, suit, investigation or proceeding could
reasonably be expected to have a Material Adverse Effect, and
(E) immediately after giving effect to the Transaction, (1) no Default or
Event of Default exists, and (2) all representations and warranties
contained herein and in the other Loan Documents are true and correct in
all material respects.
(j) Solvency. The Administrative Agent shall have received a
certificate executed by a Responsible Officer of the Borrower as of the
Closing Date, in form and substance satisfactory to the Administrative
Agent, regarding the Solvency of each of the Loan Parties on a consolidated
basis.
(k) FR Form U-1. Receipt by the Administrative Agent of a
statement, in conformity with the requirements of FR Form U-1 referred to
in Regulation U, that the use of proceeds of the initial Loans on the
Closing Date will not violate Regulate U or X of the FRB.
40
(l) Fees. Any fees required to be paid on or before the Closing
Date shall have been paid.
(m) Attorney Costs. Unless waived by the Administrative Agent, the
Borrower shall have paid all Attorney Costs of the Administrative Agent to
the extent invoiced prior to or on the Closing Date, plus such additional
amounts of Attorney Costs as shall constitute its reasonable estimate of
Attorney Costs incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude a
final settling of accounts between the Borrower and the Administrative
Agent).
(n) Direct Payment to Account. Borrower (or the appropriate other
Loan Party) shall have delivered an Irrevocable Direction to each lessee
under the Eligible Leases. Each of the lessees under each Eligible Lease
shall have executed and delivered a Payment Consent.
(o) SPE Status. Evidence, satisfactory to the Administrative
Agent, that the Borrower and each existing Guarantor qualifies as a SPE and
that the execution and performance by the Loan Parties under the Loan
Documents shall not affect such status.
(p) Other. Receipt by the Lenders of such other documents,
instruments, agreements or information as reasonably requested by any
Lender, including, but not limited to, information regarding litigation,
tax, accounting, labor, insurance, pension liabilities (actual or
contingent), real estate leases, material contracts, debt agreements,
property ownership and contingent liabilities of the Loan Parties.
5.02 Conditions to all Credit Extensions.
The obligation of each Lender to honor any Request for Credit Extension
(including the initial Credit Extension and other than a Loan Notice requesting
only a conversion of Loans to the other Type, or a continuation of Eurodollar
Rate Loans) is subject to the following conditions precedent:
(a) Representations and Warranties. The representations and
warranties of the Borrower and each other Loan Party contained in
Article VI or any other Loan Document, or which are contained in any
document furnished at any time under or in connection herewith or
therewith, shall be true and correct on and as of the date of such Credit
Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct in all material respects as of such earlier date, and except that
for purposes of this Section 5.02, the representations and warranties
contained in subsections (a) and (b) of Section 6.05 shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and
(b), respectively, of Section 7.01.
(b) Defaults/Events of Default. No Default or Event of Default
shall exist, or would result from such proposed Credit Extension.
(c) Bankruptcy Events. There shall not have occurred a Bankruptcy
Event with respect to any Loan Party.
(d) Material Adverse Effect. No event, circumstance, or condition
shall exist or shall have occurred and be continuing which has or could
reasonably be expected to have a Material Adverse Effect.
(e) Fees. The Borrower shall have paid any and all fees and
expenses due and payable to the Administrative Agent or the Lenders,
including, without limitation, audit fees and applicable Attorney Costs
incurred by the Administrative Agent in connection with the negotiation,
administration, enforcement or preparation of any Loan Document or
otherwise in connection with this Agreement or the credit facilities
provided for herein.
(f) Request for Credit Extension. The Administrative Agent and, if
applicable, the L/C Issuer shall have received a Request for Credit
Extension in accordance with the requirements hereof.
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(g) Updated Borrowing Base Certificate. The Borrower shall have
delivered to the Administrative Agent an updated Borrowing Base Certificate
taking into account the requested Credit Extension and any other matters
changed since the most recent delivery of a Borrowing Base Certificate.
Each Request for Credit Extension (other than a Loan Notice
requesting only a conversion of Loans to the other Type or a continuation
of Eurodollar Rate Loans) submitted by the Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections
5.02(a), (b), (c) and (d) have been satisfied on and as of the date of the
applicable Credit Extension.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Loan Parties represent and warrant to the Administrative Agent and the
Lenders that:
6.01 Existence, Qualification and Power; Compliance with Laws.
Each Loan Party (a) is duly organized or formed, validly existing and in
good standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own its
assets and carry on its business and (ii) execute, deliver and perform its
obligations under the Loan Documents, if any, to which it is a party and (c) is
duly qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license; except in each
case referred to in clause (b)(i) or (c), to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect.
6.02 Authorization; No Contravention.
The execution, delivery and performance by each Loan Party of each Loan
Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not
(a) contravene the terms of any of such Person's Organization Documents;
(b) conflict with or result in any breach or contravention of, or the creation
of any Lien under, (i) any Contractual Obligation to which such Person is a
party or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject;
or (c) violate any Law (including, without limitation, Regulation U or
Regulation X issued by the FRB).
6.03 Governmental Authorization; Other Consents.
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan
Document, except for (a) consents, authorizations, notices and filings described
in Schedule 6.03, all of which have been obtained or made or have the status
described in such Schedule 6.03 and (b) filings to perfect the Liens created by
the Collateral Documents.
6.04 Binding Effect.
This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that
is party thereto. This Agreement constitutes, and each other Loan Document when
so delivered will constitute, a legal, valid and binding obligation of such Loan
Party, enforceable against each Loan Party that is party thereto in accordance
with its terms except as enforceability may be limited by applicable Debtor
Relief Laws and by general equitable principles (whether enforcement is sought
by proceedings in equity or at law).
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6.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the AFRT REIT as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein; and
(iii) show all material indebtedness and other liabilities, direct or
contingent, of the Parent as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness.
(b) Reserved.
(c) During the period from December 31, 2002 to and including the Closing
Date, there has been no sale, transfer or other disposition by any Loan Party of
any material part of the business or Property of the Loan Parties, taken as a
whole, and no purchase or other acquisition by any of them of any business or
property (including any Capital Stock of any other Person) material in relation
to the consolidated financial condition of the Loan Parties, taken as a whole,
in each case, which is not reflected in the foregoing financial statements or in
the notes thereto and has not otherwise been disclosed in writing to the Lenders
on or prior to the Closing Date.
(d) The financial statements delivered pursuant to Section 7.01(a) and (b)
have been prepared in accordance with GAAP (except as may otherwise be permitted
under Section 7.01(a) and (b)) and present fairly (on the basis disclosed in the
footnotes to such financial statements) the consolidated and, as applicable,
consolidating financial condition, results of operations and cash flows of the
Loan Parties and the Parent as of such date and for such periods.
(e) Since December 31, 2002, there has been no event or circumstance,
either individually or in the aggregate, that has had or could reasonably be
expected to have a Material Adverse Effect.
6.06 Litigation.
There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of the Loan Parties after due and diligent investigation,
threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against any Loan Party or against any of its
properties or revenues that (a) purport to affect or pertain to this Agreement
or any other Loan Document, or any of the transactions contemplated hereby or
(b) either individually or in the aggregate, if determined adversely, could
reasonably be expected to have a Material Adverse Effect.
6.07 No Default.
No Loan Party is in default under or with respect to any Contractual
Obligation that could, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. No Default has occurred and is
continuing or would result from the consummation of the transactions
contemplated by this Agreement or any other Loan Document.
6.08 Ownership of Property; Liens.
Each Loan Party has good record and marketable title in fee simple to all
Underlying Assets owned by such Loan Party, except for such defects in title as
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The property of the Loan Parties is subject to no
Liens, other than Permitted Liens. The Loan Parties own no Real Property other
than the Underlying Assets. The Loan Parties own no material personal property.
6.09 Environmental Compliance.
Except as disclosed and described in Schedule 6.09 attached hereto, to the
best knowledge of the Loan Parties:
(a) Each of the Underlying Assets and, to the knowledge of the Loan
Parties, all operations at thereon are in compliance with all applicable
Environmental Laws, there is no violation of any Environmental
43
Law with respect to the Underlying Assets or the Businesses, and there are
no conditions relating to the Underlying Assets or the Businesses that
could give rise to liability under any applicable Environmental Laws.
(b) None of the Underlying Assets contains, or has previously
contained, any Hazardous Materials at, on or under the Underlying Assets in
amounts or concentrations that constitute or constituted a violation of, or
could give rise to liability under, Environmental Laws.
(c) No Loan Party has received any written or verbal notice of, or
inquiry from any Governmental Authority regarding, any violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to
any of the Underlying Assets or the Businesses, nor does any Responsible
Officer of any Loan Party have knowledge or reason to believe that any such
notice will be received or is being threatened.
(d) Hazardous Materials have not been transported or disposed of from
the Underlying Assets, or generated, treated, stored or disposed of at, on
or under any of the Underlying Assets or any other location, in each case
by or on behalf of any Loan Party in violation of, or in a manner that
could give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the best knowledge of the Responsible Officers of the Loan
Parties, threatened, under any Environmental Law to which any Loan Party is
or will be named as a party, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental
Law with respect to the Loan Parties, the Underlying Assets or the
Businesses.
(f) To the knowledge of the Loan Parties, there has been no release,
or threat of release, of Hazardous Materials at or from the Underlying
Assets, or arising from or related to the operations (including, without
limitation, disposal) of any Loan Party in connection with the Underlying
Assets or otherwise in connection with the Businesses, in violation of or
in amounts or in a manner that could give rise to liability under
Environmental Laws.
6.10 Insurance.
The Underlying Assets are insured by either the applicable Loan Party or
the applicable tenant with financially sound and reputable insurance companies
not Affiliates of the Borrower or the applicable tenant under the subject
Eligible Lease, in such amounts, with such deductibles and covering such risks
as are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where such Underlying Assets are located. The
present insurance coverage with respect to the Underlying Assets is outlined as
to carrier, policy number, expiration date, type and amount on Schedule 6.10.
The Administrative Agent is named as an additional insured and as loss payee on
any insurance policies maintained by the Borrower or any Loan Party with respect
to the Underlying Assets or as otherwise required pursuant to the terms hereof.
6.11 Taxes.
The Loan Parties have filed all Federal, state and other material tax
returns and reports required to be filed, and have paid all Federal, state and
other material taxes, assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise due and
payable, except those which are being contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment against
the Borrower or any Subsidiary that would, if made, have a Material Adverse
Effect.
6.12 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the best
knowledge of the Loan Parties, nothing has occurred which would
44
prevent, or cause the loss of, such qualification. Each Loan Party and each
ERISA Affiliate have made all required contributions to each Plan subject to
Section 412 of the Code, and no application for a funding waiver or an extension
of any amortization period pursuant to Section 412 of the Code has been made
with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Loan Parties,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) no Loan Party nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) no Loan Party nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and
no event has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with
respect to a Multiemployer Plan; and (v) no Loan Party nor any ERISA Affiliate
has engaged in a transaction that could be subject to Sections 4069 or 4212(c)
of ERISA.
6.13 Subsidiaries.
The corporate capital and ownership structure of the Loan Parties as of the
Closing Date is as described in Schedule 6.13(a). Set forth on Schedule 6.13(b)
is a complete and accurate list as of the Closing Date with respect to the
Borrower and each of its direct and indirect Subsidiaries of (i) jurisdiction of
incorporation, (ii) number of shares of each class of Capital Stock outstanding,
(iii) number and percentage of outstanding shares of each class owned (directly
or indirectly) by the Loan Parties and (iv) number and effect, if exercised, of
all outstanding options, warrants, rights of conversion or purchase and all
other similar rights with respect thereto as of the Closing Date. The
outstanding Capital Stock of all such Persons is validly issued, fully paid and
non-assessable and is owned by the Loan Parties, directly or indirectly, in the
manner set forth on Schedule 6.13(b), free and clear of all Liens (other than
those arising under or contemplated in connection with the Credit Documents).
Neither the Borrower nor any of its Subsidiaries has outstanding any securities
convertible into or exchangeable for its Capital Stock nor does any such Person
have outstanding any rights to subscribe for or to purchase or any options for
the purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to
its Capital Stock. The Borrower and each of its Subsidiaries is an SPE. Each of
the Borrower's Subsidiaries is a Wholly-Owned Subsidiary of the Borrower (except
to the extent required to cause such Subsidiary to qualify as an SPE) and is a
Guarantor under this Agreement. None of the Borrower's Subsidiaries has any
Subsidiaries or owns any interest in or Capital Stock of any other Person.
6.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act.
(a) The Borrower is not engaged and will not engage, principally or as one
of its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any
Subsidiary of the Borrower (i) is a "holding company," or a "subsidiary company"
of a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, (ii) is or is required to be registered as
an "investment company" under the Investment Company Act of 1940 or (iii)
subject to regulation under any other Law which limits its ability to incur
Indebtedness.
6.15 Disclosure.
(a) Each Loan Party has disclosed to the Administrative Agent and the
Lenders all agreements, instruments and corporate or other restrictions to which
it or any of its Subsidiaries is subject, and all other matters known to it,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect.
45
(b) No report, financial statement, certificate or other written
information furnished by or on behalf of any Loan Party to the Administrative
Agent or any Lender in connection with the transactions contemplated hereby and
the negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Loan Parties represent only that such information was prepared
in good faith based upon assumptions believed to be reasonable at the time. All
written information, reports and other papers and data (excluding financial
projections) furnished to the Administrative Agent or any Lender by, on behalf
of, or at the direction of, the Loan Parties were, at the time the same were so
furnished, complete and correct in all material respects, or, in the case of
financial statements, present fairly, in all material respects and in accordance
with GAAP consistently applied throughout the periods involved, the financial
position of the Persons involved as at the date thereof and the results of
operations for such periods. All financial projections prepared by or on behalf
of the Loan Parties that have been or may hereafter be made available to the
Administrative Agent or any Lender were or will be prepared in good faith based
on reasonable assumptions.
(c) No fact is known to any Loan Party which has had, or may reasonably be
expected in the future to have, a Material Adverse Effect which has not been set
forth in the financial statements delivered in connection with Section 7.01 or
in such information, reports or other papers or data or otherwise disclosed in
writing to the Administrative Agent and the Lenders prior to the Closing Date.
6.16 Compliance with Laws.
Each Loan Party is in compliance in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a)
such requirement of Law or order, writ, injunction or decree is being contested
in good faith by appropriate proceedings diligently conducted or (b) the failure
to comply therewith, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
6.17 Solvency.
The Loan Parties are Solvent on a consolidated basis.
6.18 Investments; Indebtedness.
All Investments of each Loan Party are Permitted Investments and all
Indebtedness of the Loan Parties is Indebtedness that is permitted pursuant to
Section 8.03 hereof.
6.19 Business Locations.
Set forth on Schedule 6.19(a) is a list of all Underlying Assets. Such
Underlying Assets represent all Real Properties in which any Loan Party has an
interest as of the Closing Date (except for Real Properties constituting the
executive offices of the Loan Parties). Set forth on Schedule 6.19(b) is the
chief executive office, jurisdiction of incorporation or formation and principal
place of business of each Loan Party as of the Closing Date.
6.20 Brokers' Fees.
Neither the Parent nor any Loan Party has any obligation to any Person in
respect of any finder's, broker's, investment banking or other similar fee in
connection with any of the transactions contemplated under the Loan Documents.
6.21 Labor Matters.
There are no collective bargaining agreements or Multiemployer Plans
covering the employees of a Loan Party as of the Closing Date.
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6.22 Nature of Business.
The Loan Parties are engaged solely in the business of purchasing, owning
and, to the extent permitted hereunder, selling stand-alone bank branches and
office buildings subject to leases which qualify as Eligible Leases hereunder
and such other activities as may be reasonably related to the foregoing.
6.23 Representations and Warranties from Other Loan Documents.
Each of the representations and warranties made by any of the Loan Parties
in any of the other Loan Documents is true and correct in all material respects.
6.24 Survival of Representations and Warranties, Etc.
All statements contained in any certificate, financial statement or other
instrument delivered by or on behalf of the Loan Parties to the Administrative
Agent, the Issuing Lender or any Lender pursuant to or in connection with this
Agreement or any of the other Loan Documents (including, but not limited to, any
such statement made in or in connection with any amendment thereto or any
statement contained in any certificate, financial statement or other instrument
delivered by or on behalf of the Loan Parties prior to the Agreement Date and
delivered to the Administrative Agent, the Issuing Lender or any Lender in
connection with closing the transactions contemplated hereby) shall constitute
representations and warranties made by the Borrower under this Agreement. All
representations and warranties made under this Agreement and the other Loan
Documents shall be deemed to be made at and as of the Agreement Date, the
Closing Date and at and as of the date of the occurrence of any Credit
Extension, except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such representations
and warranties shall have been true and accurate on and as of such earlier date)
and except for changes in factual circumstances specifically permitted
hereunder. All such representations and warranties shall survive the
effectiveness of this Agreement, the execution and delivery of the Loan
Documents and the making of the Loans and issuance of Letters of Credit.
6.25 Affiliate Transactions.
Except as otherwise approved by the Administrative Agent in writing, no
Loan Party is a party to or bound by any agreement or arrangement (whether oral
or written) to which any Subsidiary or Affiliate of any Loan Party is a party,
except the Service Agreement.
6.26 Contractual Obligations.
The Borrower has no Contractual Obligations other than in connection with
leases of Real Properties, the Loan Documents and the Service Agreement.
6.27 Tax Shelter Regulations.
The Borrower [intends to][does not intend to] treat the Loans and Letters
of Credit and the transactions related thereto as being a "reportable
transaction" (within the meaning of Treasury Regulation Section 1.6011-4). In
the event the Borrower determines to take any action inconsistent with such
intention, it will promptly notify the Administrative Agent thereof.
[Accordingly][If the Borrower so notifies the Administrative Agent], the
Borrower acknowledges that one or more of the Lenders may treat its Loans and/or
its interest in Letters of Credit as part of a transaction that is subject to
Treasury Regulation Section 301.6112-1, and such Lender or Lenders, as
applicable, will maintain the lists and other records required by such Treasury
Regulation.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, each Loan Party shall, and shall (except in the
case of the covenants set forth in Sections 7.01, 7.02, 7.03 and 7.11) cause
each Subsidiary to:
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7.01 Financial Statements.
Deliver to the Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower or Parent (as applicable), a
consolidated and consolidating balance sheet of the Loan Parties and of the
Parent as at the end of such fiscal year, and the related consolidated and
consolidating statements of income or operations, shareholders' equity and
cash flows for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable detail and
prepared in accordance with GAAP, audited and accompanied by a report and
opinion of an independent certified public accountant of nationally
recognized standing reasonably acceptable to the Required Lenders, which
report and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any "going concern" or like
qualification or exception or any qualification or exception as to the
scope of such audit; and
(b) as soon as available, but in any event within 45 days after the
end of each of the first three fiscal quarters of each fiscal year of the
Borrower or Parent (as applicable), a consolidated and consolidating
balance sheet of the Loan Parties and of the Parent as at the end of such
fiscal quarter, and the related consolidated and consolidating statements
of income or operations, shareholders' equity and cash flows for such
fiscal quarter and for the portion of the Borrower's or Parent's fiscal
year then ended, setting forth in each case in comparative form the figures
for the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail
and certified by a Responsible Officer of the Borrower as fairly presenting
the financial condition, results of operations, shareholders' equity and
cash flows of the Loan Parties and/or the Parents (as applicable) in
accordance with GAAP, subject only to normal year-end audit adjustments and
the absence of footnotes.
7.02 Certificates; Other Information.
Deliver to the Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:
(a) promptly upon receipt thereof, a copy of any financial information
regarding the tenant under any Eligible Lease to the extent required by
such lease to be delivered to the landlord thereunder;
(b) on the first Business Day of each calendar month, a Borrowing Base
Certificate calculated as of the end of the immediately preceding month;
(c) as required pursuant to Section 5.02(g) or Section 8.12, as
applicable, a Borrowing Base Certificate calculated as of the applicable
date of the subject transaction referenced in such section;
(d) at least 30 days prior to the end of each fiscal year of the
Borrower, beginning with the fiscal year ending December 31, 2003, an
annual business plan and budget of the Loan Parties containing, among other
things, pro forma financial statements for the next fiscal year;
(e) promptly after any request by the Administrative Agent or any
Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit committee
of the board of directors) of the Parent or to the general partners of the
Borrower by independent accountants in connection with the accounts or
books of the Parent, Borrower or any Subsidiary, or any audit of any of
them;
(f) promptly after the same are available, (i) copies of each annual
report, proxy or financial statement or other report or communication sent
to the stockholders of the Parent or Borrower, and copies of all annual,
regular, periodic and special reports and registration statements which the
Parent or any Loan Party may file or be required to file with the SEC under
Section 13 or 15(d) of the Securities Exchange Act
48
of 1934 of to a holder of any Indebtedness owed by any Loan Party in its
capacity as such a holder and not otherwise required to be delivered to the
Administrative Agent pursuant hereto;
(g) upon the request of the Administrative Agent, all reports and
written information to and from the United States Environmental Protection
Agency, or any state or local agency responsible for environmental matters,
the United States Occupational Health and Safety Administration, or any
state or local agency responsible for health and safety matters, or any
successor agencies or authorities concerning environmental, health or
safety matters;
(h) promptly upon receipt thereof, a copy of any other report or
"management letter" submitted by independent accountants to the Parent or
any Loan Party in connection with any annual, interim or special audit of
the books of such Person;
(i) promptly, such additional information regarding the business,
financial or corporate affairs of the Parent, Borrower or any Subsidiary,
or compliance with the terms of the Loan Documents, as the Administrative
Agent or any Lender may from time to time reasonably request; and
(j) promptly after the Borrower has notified the Administrative Agent
of any intention by the Borrower to treat the Loans and/or Letters of
Credit as being a "reportable transaction" (within the meaning of Treasury
Regulation Section 1.6011-4), a duly completed copy of IRS form 8886 or any
successor form.
Documents required to be delivered pursuant to Section 7.01(a) or (b) or Section
7.02(f) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which the Borrower posts such documents,
or provides a link thereto on the Borrower's website on the Internet at the
website address listed on Schedule 11.02 and notifies Administrative Agent of
such posting thereof as set forth in clause (ii) below, or (ii) on which such
documents are posted on the Borrower's behalf on IntraLinks/Intra Agency or
another relevant website, if any, to which each Lender and the Administrative
Agent have access (whether a commercial, third party website or whether
sponsored by the Administrative Agent); provided that: (i) the Borrower shall
deliver paper copies of such documents to the Administrative Agent or any Lender
that requests the Borrower to deliver such paper copies until a written request
to cease delivering paper copies is given by the Administrative Agent or such
Lender and (ii) the Borrower shall notify (which may be by facsimile or
electronic mail) the Administrative Agent and each Lender of the posting of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Borrower shall be required to
provide paper copies of the Borrowing Base Certificates required by Section
7.02(b) to the Administration Agent and each of the Lenders. Except for such
Borrowing Base Certificates, the Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by
the Borrower with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its own copies of such
documents.
7.03 Notices and Information.
(a) Promptly notify the Administrative Agent and each Lender of (i) the
occurrence of any Default, (ii) any material change in the terms of any Eligible
Lease or of any lease which qualified as such immediately prior to such change,
(iii) any other circumstances or conditions causing any lease which previously
qualified as an Eligible Lease to cease to qualify as such or (iv) any existing
circumstances or conditions known to it which could be reasonably expected to
cause an Eligible Lease to cease to qualify as such within the immediately
following twelve (12) month period.
(b) Promptly notify the Administrative Agent and each Lender of any matter
that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default
under, a Contractual Obligation of the Borrower or any Subsidiary; (ii) any
dispute, litigation, investigation, proceeding or suspension between the
Borrower or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding
affecting the Borrower or any Subsidiary, including pursuant to any applicable
Environmental Laws.
49
(c) Promptly notify the Administrative Agent and each Lender of the
occurrence of any ERISA Event.
(d) Promptly notify the Administrative Agent and each Lender of any change
in the chief executive officer, chief operating officer or chief financial
officer of any Loan Party or Parent or any material change in accounting
policies or financial reporting practices by the Borrower or any Subsidiary.
(e) Upon the reasonable written request of the Administrative Agent
following the occurrence of any event or the discovery of any condition which
the Administrative Agent or the Required Lenders reasonably believe has caused
(or could be reasonably expected to cause) the representations and warranties
set forth in Section 6.09 to be untrue in any material respect, the Loan Parties
will furnish or cause to be furnished to the Administrative Agent, at the Loan
Parties' expense, a report of an environmental assessment of reasonable scope,
form and depth, (including, where appropriate, invasive soil or groundwater
sampling) by a consultant reasonably acceptable to the Administrative Agent as
to the nature and extent of the presence of any Materials of Environmental
Concern on any Real Properties (as defined in Section 6.09) and as to the
compliance by any Loan Party with Environmental Laws at such Real Properties. If
the Loan Parties fail to deliver such an environmental report within
seventy-five (75) days after receipt of such written request (or, to the extent
the Loan Parties are unable to procure such report within such period but
diligently commenced procurement of such an environmental report promptly upon
receipt of the Administrative Agent's request therefor and continued at all
times thereafter to diligently pursue procurement thereof, one hundred twenty
(120) days) then the Administrative Agent may arrange for same, and the Loan
Parties hereby grant to the Administrative Agent and its representatives access
to the Real Properties to reasonably undertake such an assessment (including,
where appropriate, invasive soil or groundwater sampling). The reasonable cost
of any assessment arranged for by the Administrative Agent pursuant to this
provision will be payable by the Loan Parties on demand and added to the
obligations secured by the Collateral Documents.
Each notice pursuant to this Section 7.03(a) through (e) shall be
accompanied by a statement of a Responsible Officer of the Borrower setting
forth details of the occurrence referred to therein and stating what action the
Borrower has taken and proposes to take with respect thereto. Each notice
pursuant to Section 7.03(a) shall describe with particularity any and all
provisions of this Agreement and any other Loan Document that have been
breached.
7.04 Payment of Obligations.
Pay and discharge as the same shall become due and payable, all its
obligations and liabilities, including (a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, unless the
same are being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves in accordance with GAAP are being maintained by
the Borrower or such Subsidiary; (b) all lawful claims which, if unpaid, would
by law become a Lien upon its property; and (c) all material Indebtedness (as
determined by the thresholds established pursuant to Section 9.01(i)), as and
when due and payable, but subject to any subordination provisions contained in
any instrument or agreement evidencing such Indebtedness.
7.05 Preservation of Existence, Franchises, SPE Status, Etc..
(a) Preserve, renew and maintain in full force and effect its legal
existence and good standing under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 8.04 or 8.05;
(b) take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or desirable in the normal conduct of
its business;
(c) preserve or renew all of its material registered copyrights, patents,
trademarks, trade names and service marks; and
(b) take all action required to preserve and maintain its status as an
SPE.
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7.06 Maintenance of Properties.
(a) Maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear and Involuntary Dispositions excepted; and
(b) make all necessary repairs thereto and renewals and replacements
thereof; and
(c) use the standard of care typical in the industry in the operation and
maintenance of its facilities.
7.07 Maintenance of Insurance.
Maintain (or cause the applicable tenant to maintain) in full force and
effect insurance with respect to each Underlying Asset (including worker's
compensation insurance, liability insurance, casualty insurance and, to the
extent the applicable lease with respect to such Underlying Asset is not a
Bondable Net Lease, business interruption insurance) in such amounts, covering
such risks and liabilities and with such deductibles or self-insurance
retentions as are in accordance with normal industry practice. To the extent
Borrower or any Loan Party obtains any such insurance in its own name, the
Administrative Agent shall be named as loss payee or mortgagee, as its interest
may appear, and/or additional insurance with respect to any such insurance and
each provider of any such insurance shall agree, by endorsement upon the policy
or policies issued by it or by independent instruments furnished to the
Administrative Agent, that it will give the Administrative Agent thirty (30)
days prior written notice before any such policy or policies shall be altered or
canceled.
7.08 Compliance with Laws.
Comply with the requirements of all Laws and all orders, writs, injunctions
and decrees applicable to it or to its business or property, except in such
instances in which (a) such requirement of Law or order, writ, injunction or
decree is being contested in good faith by appropriate proceedings diligently
conducted; or (b) the failure to comply therewith could not reasonably be
expected to have a Material Adverse Effect.
7.09 Books and Records.
(a) Maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of
all financial transactions and matters involving the assets and business of the
Borrower or such Subsidiary, as the case may be; and
(b) maintain such books of record and account in material conformity with
all applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or such Subsidiary, as the case may be.
7.10 Inspection Rights.
Permit representatives and independent contractors of the Administrative
Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances and accounts with its directors,
officers, and independent public accountants, all at the expense of the Borrower
and at such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrower; provided,
however, that when an Event of Default exists the Administrative Agent or any
Lender (or any of their respective representatives or independent contractors)
may do any of the foregoing at the expense of the Borrower at any time during
normal business hours and without advance notice. The Loan Parties agree that
the Administrative Agent, and its representatives, may conduct an annual audit
of the Collateral, at the expense of the Loan Parties.
7.11 Use of Proceeds.
Use the proceeds of the Credit Extensions for (a) the financing of
stand-alone bank branches and office buildings that are subject to leases that
qualify as Eligible Leases pursuant to the terms and conditions of this
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Agreement; and (b) general corporate working capital purposes (other than the
repayment of the Bridge Credit Facility) not in contravention of any Law or of
any Loan Document.
7.12 Collateral Account and Agreement.
(a) The Loan Parties shall, at all times during the term of this Agreement
maintain a Collateral Account in favor of the Collateral Agent for the benefit
of the Secured Parties, which Collateral Account will be assigned to the
Collateral Agent (for the benefit of the Lenders) and governed pursuant to a
Collateral Account Agreement and the terms hereof.
(b) Each of the Loan Parties shall on or prior to the date on which a
lease becomes an Eligible Lease hereunder, direct each of the tenants under the
Eligible Leases to deposit all payments under or with respect to such Eligible
Leases into the Collateral Account through delivery of an Irrevocable Direction
to each such tenant and each such tenant shall have executed a Payment Consent
agreeing to make such payments into the Collateral Account. To the extent any
such payments are received by any Loan Party, such Loan Party hereby agrees that
it shall immediately deposit such payments into the Collateral Account in the
form received but with proper endorsement, if necessary, and until so deposited
are deemed to be held on deposit for the benefit of the Secured Parties.
(c) The Administrative Agent shall have the right to withdraw amounts paid
into the Collateral Account in accordance with the following terms and
conditions:
(i) On each Interest Payment Date, the Administrative Agent shall
have the right to withdraw (and, to the extent no Default or Event of
Default has occurred and is continuing, shall, at the direction of the
Borrower, withdraw) from the Collateral Account an amount equal to the
accrued interest then due and owing under this Agreement and the other Loan
Documents.
(ii) On each date on which any mandatory prepayment or other
principal payment is due pursuant to Section 2.04(b) hereof, the
Administrative Agent shall have the right to withdraw (and, to the extent
no Default or Event of Default has occurred and is continuing, shall, at
the direction of the Borrower, withdraw) from the Collateral Account an
amount equal to the required prepayment or principal payment.
(iii) On each date on which any fee is due under the Loan Documents,
the Agent shall have the right to withdraw (and, to the extent no Default
or Event of Default has occurred and is continuing, shall, at the direction
of the Borrower, withdraw) from the Collateral Account, an amount equal to
such fee(s).
(iv) Notwithstanding anything to the contrary contained herein, the
Administrative Agent shall have the absolute right to offset and apply any
amounts held in the Collateral Account at any time during the continuation
of a Default or Event of Default.
(d) The Collateral Account shall, at all times from and after the date of
the first Credit Extension, contain an amount equal to or greater than the
Collateral Account Reserve Amount.
(e) The Loan Parties shall have the right to withdraw amounts held in the
Collateral Account at any time except to the extent (i) such withdrawal would
cause the amount held therein to be less than the Collateral Account Reserve
Amount, in which case the Loan Parties shall be permitted to withdraw an amount
equal to or less than (A) the amount held in the Collateral Account, less (B)
the Collateral Account Reserve Amount; and (ii) there is a continuing Default or
Event of Default, in which case the Loan Parties shall not be permitted to make
any such withdrawal without (1) in the case of any Event of Default predicated
on Sections 9.01(a) or (f) hereof, the written consent of the Required Lenders;
or (2) in all other cases, the written consent of the Administrative Agent.
7.13 Additional Guarantors.
Notify the Administrative Agent at the time that any Person becomes a
Subsidiary of the Borrower, and promptly thereafter (and in any event within 10
days), cause such Person to (i) become a Guarantor by executing and delivering
to the Administrative Agent a Joinder Agreement, and (ii) deliver to the
Administrative Agent documents of the types referred to in clauses (iii) and
(iv) of Section 5.01(a) and favorable opinions of counsel to
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such Person (which shall cover, among other things, the legality, validity,
binding effect and enforceability of the documentation referred to in clause
(a)), all in form, content and scope reasonably satisfactory to the
Administrative Agent.
7.14 Pledged Assets.
(a) Subject all of their respective rights under each of the Eligible
Leases to first priority Liens in favor of the Collateral Agent for the benefit
of the Secured Parties to secure the Obligations, pursuant to the terms and
conditions of applicable Assignments of Leases or, with respect to any such
Property acquired subsequent to the Closing Date, such other security documents
as the Administrative Agent shall reasonably request, subject in any case to
Permitted Liens;
(b) cause (A) 100% of the issued and outstanding Capital Stock of the
Borrower, and (B) 100% of the issued and outstanding Capital Stock of each
Subsidiary of the Borrower to be subject at all times to a first priority,
perfected Lien in favor of the Collateral Agent for the benefit of the Secured
Parties pursuant to the terms and conditions of the Collateral Documents or such
other security documents as the Administrative Agent shall reasonably request;
and
(c) deliver such other documentation as the Administrative Agent may
reasonably request in connection with the foregoing, including, without
limitation, appropriate UCC-1 financing statements, certified resolutions and
other organizational and authorizing documents of such Person, favorable
opinions of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation
referred to above and the perfection of the Administrative Agent's liens
thereunder) and other items of the types required to be delivered pursuant to
the terms of this Agreement, all in form, content and scope reasonably
satisfactory to the Administrative Agent.
7.15 Service Agreement.
Cause Borrower and Parent, at all times during the term hereof, to be
parties to a Service Agreement in form and substance acceptable to the
Administrative Agent and, in any case, setting forth the responsibility of the
Parent to monitor the Loan Parties' and applicable lessees' compliance under the
leases held by the Loan Parties (including, without limitation, all Eligible
Leases) and under the Loan Documents, prepare and file all necessary tax filings
with respect to the Loan Parties, and to monitor and procure (in the name of the
applicable Loan Parties) insurance coverage for the Loan Parties to the extent
required hereunder.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, no Loan Party shall, nor shall it permit any
Subsidiary to, directly or indirectly:
8.01 Liens.
Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the
following:
(a) Liens pursuant to any Loan Document;
(b) Liens (other than Liens imposed under ERISA) for taxes,
assessments or governmental charges or levies not yet due or which are
being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;
53
(c) Liens of carriers, warehousemen, mechanics, materialmen and
suppliers and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary course of
business, provided that such Liens secure only amounts not yet due and
payable or, if due and payable, are unfiled and no other action has been
taken to enforce the same or are being contested in good faith by
appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established;
(d) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation, other than any Lien imposed by ERISA;
(e) deposits to secure the performance of bids, trade contracts and
leases (other than Indebtedness), statutory obligations, surety bonds
(other than bonds related to judgments or litigation), performance bonds
and other obligations of a like nature incurred in the ordinary course of
business;
(f) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from
the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;
(g) Liens securing judgments for the payment of money not constituting
an Event of Default under Section 9.01(h) or securing appeal or other
surety bonds related to such judgments;
(h) Reserved;
(i) normal and customary rights of setoff upon deposits of cash in
favor of banks or other depository institutions;
(j) Liens of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection; and
(k) Liens of sellers of goods to the Borrower and any of its
Subsidiaries arising under Article 2 of the Uniform Commercial Code or
similar provisions of applicable law in the ordinary course of business,
covering only the goods sold and securing only the unpaid purchase price
for such goods and related expenses.
8.02 Investments.
Make any Investments, except:
(a) Investments held by the Borrower or such Subsidiary in the form of
Cash Equivalents;
(b) Investments in any Person which is a Loan Party prior to giving
effect to such Investment;
(c) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade
credit in the ordinary course of business, and Investments received in
satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or
limit loss;
(d) Guarantees permitted by Section 8.03; and
(e) Investments in Real Properties.
8.03 Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness, except:
54
(a) Indebtedness under the Loan Documents;
(b) obligations (contingent or otherwise) of the Borrower or any
Subsidiary existing or arising under any Swap Contract, provided that (i)
such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks associated
with liabilities, commitments, investments, assets, or property held or
reasonably anticipated by such Person, or changes in the value of
securities issued by such Person, and not for purposes of speculation or
taking a "market view;" and (ii) such Swap Contract does not contain any
provision exonerating the non-defaulting party from its obligation to make
payments on outstanding transactions to the defaulting party;
(c) Indebtedness in the form of trade payables incurred in the
ordinary course of business; and
(d) Guaranty Obligations with respect to Indebtedness permitted
pursuant to this Section 8.03.
Notwithstanding the foregoing, the Borrower shall not, and shall not permit
any other Subsidiary to, create, incur or assume any Indebtedness after the
Closing Date if immediately prior to the creation, incurring or assumption
thereof, or immediately thereafter and after giving effect thereto, a Default or
Event of Default is or would be in existence, including without limitation, a
Default or Event of Default resulting from a violation of any of the covenants
contained in this Section 8.03.
8.04 Fundamental Changes.
Except in connection with a Disposition permitted pursuant to Sections 8.05
and 8.12 hereof, merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person; provided that, notwithstanding
the foregoing provisions of this Section 8.04 but subject to the terms of
Sections 7.13 and 7.14, (a) the Borrower may merge or consolidate with any of
its Subsidiaries provided that the Borrower shall be the continuing or surviving
corporation, and (b) any Loan Party other than the Borrower may merge or
consolidate with any other Loan Party other than the Borrower.
8.05 Dispositions.
Make any Disposition unless (a) such transaction does not involve the sale
or other disposition of an equity interest in the Borrower, and (b) to the
extent such Disposition involves an Underlying Property or Real Property
previously qualifying as an "Underlying Property", the conditions set forth in
Section 8.12 hereof are fully satisfied prior to the consummation of such
Disposition.
8.06 Equity Issuances; Debt Issuances.
Permit the Borrower or any of its Subsidiaries to conduct or declare any
Equity Issuance or Debt Issuance (except to the extent consented to in writing
by the Administrative Agent and each of the Lenders or as otherwise permitted
pursuant to Section 8.03 hereof).
8.07 Change in Nature of Business.
Engage in any material line of business substantially different from those
lines of business conducted by the Borrower and its Subsidiaries on the date
hereof or any business substantially related or incidental thereto.
8.08 Transactions with Affiliates and Insiders.
Enter into or permit to exist any transaction or series of transactions
with any officer, director or Affiliate of such Person other than (a) advances
of working capital to any Loan Party, (b) transfers of cash and assets to any
Loan Party, (c) intercompany transactions expressly permitted by any other
section of this Agreement, (d) normal
55
compensation and reimbursement of expenses of officers and directors and (e)
except as otherwise specifically limited in this Agreement, other transactions
which are entered into in the ordinary course of such Person's business on terms
and conditions substantially as favorable to such Person as would be obtainable
by it in a comparable arms-length transaction with a Person other than an
officer, director or Affiliate.
8.09 Burdensome Agreements.
(a) Enter into any Contractual Obligation that encumbers or restricts the
ability of any such Person to (i) pay dividends or make any other distributions
to any Loan Party on its Capital Stock or with respect to any other interest or
participation in, or measured by, its profits, (ii) pay any Indebtedness or
other obligation owed to any Loan Party, (iii) make loans or advances to any
Loan Party, (iv) sell, lease or transfer any of its Property to any Person
(except for leases of Real Property to third parties on market terms and
conditions), (v) pledge its Property pursuant to the Loan Documents or any
renewals, refinancings, exchanges, refundings or extension thereof (except for
leases of Real Property to third parties on market terms and conditions) or (vi)
act as a Loan Party pursuant to the Loan Documents or any renewals,
refinancings, exchanges, refundings or extension thereof, except (in respect of
any of the matters referred to in clauses (i)-(v) above) for (1) this Agreement
and the other Loan Documents, (2) any Permitted Lien or any document or
instrument governing any Permitted Lien, provided that any such restriction
contained therein relates only to the asset or assets subject to such Permitted
Lien or (3) customary restrictions and conditions contained in any agreement
relating to the sale of any Property permitted under Section 8.05 pending the
consummation of such sale.
(b) Enter into any Contractual Obligation that prohibits or otherwise
restricts the existence of any Lien upon any of its Property in favor of
Collateral Agent for the benefit of the Secured Parties for the purpose of
securing the Obligations, whether now owned or hereafter acquired, or requiring
the grant of any security for any obligation if such Property is given as
security for the Obligations, except (i) in connection with any Permitted Lien
or any document or instrument governing any Permitted Lien, provided that any
such restriction contained therein relates only to the asset or assets subject
to such Permitted Lien, (ii) pursuant to customary restrictions and conditions
contained in any agreement relating to the sale of any Property permitted under
Section 8.05, pending the consummation of such sale and (iii) as set forth in
lease agreements with respect to Real Properties (to the extent such leases are
to third parties on market terms and conditions).
8.10 Use of Proceeds.
Use the proceeds of any Credit Extension, whether directly or indirectly,
and whether immediately, incidentally or ultimately, to purchase or carry margin
stock (within the meaning of Regulation U of the FRB) or to extend credit to
others for the purpose of purchasing or carrying margin stock or to refund
indebtedness originally incurred for such purpose.
8.11 Subsidiaries.
(a) Except for the Borrower, create, acquire or permit to exist any
Subsidiaries;
(b) with respect to the Borrower, create, acquire or permit to exist (i)
any Subsidiaries that are not Wholly-Owned Subsidiaries of the Borrower (except
to the extent required to cause such Subsidiary to qualify as an SPE), (ii) any
Subsidiaries which are not made Guarantors hereunder as of the Closing Date or,
if not in existence as of the Closing Date, within 10 days of the formation
thereof, or (iii) any Foreign Subsidiaries; and
(c) permit any Loan Party to (i) permit any Person (other than the
Borrower) to own any Capital Stock of any Subsidiary of the Borrower, except to
qualify directors where required by applicable law, (ii) permit any Subsidiary
of the Borrower to issue or have outstanding any shares of preferred Capital
Stock or (iii) permit, create, incur, assume or suffer to exist any Lien on any
Capital Stock of any Subsidiary of the Borrower, except for Permitted Liens.
8.12 Removal/Addition of Underlying Assets and Eligible Leases;
Acquisitions.
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(a) Dispose of or perform a refinancing with respect to any Underlying
Asset (or any Loan Party holding such an asset) except to the extent each of the
following conditions are fully satisfied (as determined in the absolute
discretion of the Administrative Agent): (i)(A) the applicable Underlying Asset
is subject to a voluntary sale by the applicable Loan Party or a refinancing
through a securitized mortgage or other form of permanent debt financing or (B)
the Capital Stock of the applicable Loan Party is subject to a voluntary sale by
the Borrower or transferred to effect a refinancing; (ii) the Borrower provides
written notice to the Administrative Agent of the pending sale or refinancing
not less than fifteen (15) days prior to the consummation thereof; (iii) the
Borrower provides to the Administrative Agent, along with the written notice
referenced in subclause (ii) above, a Pro Forma Borrowing Base Certificate which
assumes the consummation of the pending sale or refinancing (and all other then
pending sales or refinancings) and showing that, immediately following such
transaction, the Total Outstandings shall not exceed the lesser of (A) the
Aggregate Revolving Commitments and (B) the projected Borrowing Base (provided,
that such Borrowing Base Certificate may include any New Eligible Lease to the
extent the Administrative Agent and (to the extent necessary) the Lenders have
duly approved the addition of such New Eligible Lease pursuant to Section
8.12(c) below and a Loan Party has otherwise satisfied all other requirements of
8.12(c) below prior to the date of the delivery of such Borrowing Base
Certificate); (iv) no Default or Event of Default has occurred and is then
continuing or is reasonably likely to occur as a result of the consummation of
the pending sale or refinancing; and (v) the Borrower or the applicable Loan
Party causes 100% of the net proceeds of the applicable sale or refinancing to
be funded directly into the Collateral Account, whereupon such proceeds shall be
used, prior to disbursement to the Borrower pursuant to Section 7.12 hereof, to
fund any prepayment required in connection with the applicable Disposition
pursuant to the terms of this Agreement and any amounts then due and owing from
any Loan Party under the Loan Documents; or
(b) otherwise cause or permit any lease which at any times qualifies
as an Eligible Lease hereunder to, following such qualification, cease to meet
the conditions for qualifying as an Eligible Lease hereunder for a period in
excess of seven (7) days, except to the extent each of the following conditions
is fully satisfied (as determined in the absolute discretion of the
Administrative Agent):
(i) the Borrower, as soon as is reasonably possible following
its receipt of notice that such lease will fail to qualify as an Eligible
Lease (and, in any case, not less than five (5) Business Days prior to
the Borrower's or any Loan Party's taking of any action causing or
permitting such lease to fail to qualify as an Eligible Lease and, with
respect to any non-voluntary event(s) causing such failure, not less than
three (3) Business Days following such event(s)), delivers to the
Administrative Agent a Pro Forma Borrowing Base Certificate showing, on a
Pro Forma Basis, the effect of the removal of the Eligible Lease NPV
associated with such lease from the Borrowing Base; and
(ii) to the extent the Pro Forma Borrowing Base Certificate
delivered pursuant to subclause (i) above shows that the Total
Outstandings will or do, as a result of the removal of the subject lease
as an Eligible Lease, exceed the lesser of (A) the Aggregate Revolving
Commitments and (B) the Borrowing Base (as calculated without the
Eligible Lease NPV attributable to such former Eligible Lease), the
Borrower shall, prior to the end of such seven (7) day period (and prior
the Borrower's or any Loan Party's taking of any action causing or
permitting such lease to fail to qualify as an Eligible Lease):
(1) repay the outstanding Obligations in an amount sufficient
to eliminate the excess of Total Outstandings over the lesser of
the Aggregate Revolving Commitments and the Borrowing Base; or
(2) nominate, receive requisite approvals from the
Administrative Agent and, if applicable, the Lenders, for and
purchase (or cause another Loan Party to purchase) one or more
Underlying Assets subject to one or more New Eligible Leases
pursuant to clause (c) of this Section 8.12 such that the Eligible
Lease NPVs of the New Eligible Leases causes the Borrowing Base to
increase in an amount sufficient to eliminate the excess of Total
Outstandings over the lesser of the Aggregate Revolving
Commitments and the Borrowing Base; or
(3) combine the repayment of the Obligations in accordance
with item (1) above with the procurement of one or more New
Eligible Leases in accordance with item (2) above such
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that the excess of Total Outstandings over the lesser of the
Aggregate Revolving Commitments and the Borrowing Base is
eliminated; or
(c) acquire any interest in Real Property (other than leases of office
space required for the operation of the Businesses) except to the extent: (i)
such Real Property is subject to a fully executed lease meeting the requirements
for qualification as an Eligible Lease (except Administrative Agent and, if
applicable, Lender approval requirements); (ii) the Borrower nominates such
lease and such Real Property to qualify as an Eligible Lease and Underlying
Asset hereunder through a written request delivered to the Administrative Agent
and the Lenders; (iii) in addition to the request for admission referenced in
subclause (ii) above, the Borrower delivers to the Administrative Agent and
Lenders detailed calculations concerning the projected Eligible Lease NPV which
would apply to the subject lease and the components thereof, (iv) if (A) the
Administrative Agent reasonably determines that the proposed lease constitutes a
Bondable Net Lease, the Administrative Agent approves (in writing), in its
reasonable discretion, the admission of such lease and Real Property as an
Eligible Lease and Underlying Asset (respectively) hereunder (which decision
regarding approval shall be made by the Administrative Agent within fifteen (15)
days of receipt of a written request pursuant to clause (ii) above; provided,
that if not affirmatively approved, such failure to approve shall be deemed an
automatic determination by the Administrative Agent not to approve such lease);
or (B) the Administrative Agent reasonably determines that the proposed lease
does not constitute a Bondable Net Lease, the Administrative Agent and each of
the Lenders approve (in writing) the admission of such lease and Real Property
as an Eligible Lease and Underlying Asset (respectively) hereunder (which
decision regarding approval shall be made by the Administrative Agent and each
Lender within thirty (30) days of receipt of a written request pursuant to
clause (ii) above; provided, that if not affirmatively approved, such failure to
approve shall be deemed an automatic determination by the Administrative Agent
or such Lender (as applicable) not to approve such lease); (v) the
Administrative Agent shall have received from the applicable tenant such consent
and agreement(s), estoppel(s) and/or subordination, non-disturbance and
attornment agreement(s) as may be required by the Administrative Agent (in its
sole discretion) as conditions precedent to the applicable lease qualifying as
an Eligible Lease, in each case in form and substance acceptable to the
Administrative Agent, and (vi) a Loan Party, following receipt of such approval
from the Administrative Agent and each of the Lenders and of all such consent
and agreement(s), estoppel(s) and/or subordination, non-disturbance and
attornment agreement(s), acquires 100% of the subject Real Property, becomes the
lessor under the applicable lease (such lease constituting, at this point, a
"New Eligible Lease"), delivers an Assignment of Leases and any other documents
required by the terms of this Agreement or reasonably requested by the
Administrative Agent in connection therewith and provides to the Administrative
Agent and each Lender a Borrowing Base Certificate including the Eligible Lease
NPV of such New Eligible Lease; or
(d) acquire any interest in any other Property except to the extent
required to operate the Businesses in a commercially reasonable manner.
8.13 Prepayment of Other Indebtedness, Etc.
Permit any Loan Party to if any Default or Event of Default has occurred
and is continuing or would be directly or indirectly caused as a result thereof,
(a) amend or modify any of the terms of any Indebtedness of such Loan Party if
such amendment or modification would add or change any terms in a manner adverse
to such Loan Party, or shorten the final maturity or average life to maturity or
require any payment to be made sooner than originally scheduled or increase the
interest rate applicable thereto, or (b) make (or give any notice with respect
thereto) any voluntary or optional payment or prepayment or redemption or
acquisition for value of (including without limitation, by way of depositing
money or securities with the trustee with respect thereto before due for the
purpose of paying when due), refund, refinance or exchange of any other
Indebtedness of such Loan Party.
8.14 Organization Documents; Fiscal Year.
Permit any Loan Party to (a) amend, modify or change its Organization
Documents in a manner adverse to the Lenders or (b) change its fiscal year.
8.15 Sale Leasebacks.
Permit any Loan Party to enter into any Sale and Leaseback Transaction.
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8.16 Operating Lease Obligations.
Permit any Loan Party to enter into, assume or permit to exist any
obligations for the payment of rental under Operating Leases.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.01 Events of Default.
Any of the following shall constitute an Event of Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to
pay (i) when and as required to be paid herein, any amount of principal
of any Loan or any L/C Obligation, or (ii) within three days after the
same becomes due, any interest on any Loan or on any L/C Obligation,
any commitment or other fee due hereunder or any other amount payable
hereunder or under any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or
observe any term, covenant or agreement contained in any of Section
7.01, 7.02, 7.03, 7.05, 7.10, 7.11, 7.12, 7.13 or 7.14 or Article VIII;
or
(c) Other Defaults. Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in subsection (a) or (b)
above) contained in any Loan Document on its part to be performed or
observed and such failure continues for 30 days; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of
the Borrower or any other Loan Party herein, in any other Loan Document,
or in any document delivered in connection herewith or therewith shall be
incorrect or misleading in any material respect when made or deemed made;
or
(e) Cross-Default. (i) The Borrower or any other Loan Party (A)
fails to perform or observe (beyond the applicable grace period with
respect thereto, if any) any Contractual Obligation if such failure could
reasonably be expected to have a Material Adverse Effect, (B) fails to
make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any
Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount
(including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than the Threshold Amount, or (C)
fails to observe or perform any other agreement or condition relating to
any such Indebtedness or Guarantee or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
occurs, the effect of which default or other event is to cause, or to
permit the holder or holders of such Indebtedness or the beneficiary or
beneficiaries of such Guarantee (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to be demanded or to
become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay, defease
or redeem such Indebtedness to be made, prior to its stated maturity, or
such Guarantee to become payable or cash collateral in respect thereof to
be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A)
any event of default under such Swap Contract as to which the Borrower or
any Subsidiary is the Defaulting Party (as defined in such Swap Contract)
or (B) any Termination Event (as so defined) under such Swap Contract as
to which the Borrower or any Subsidiary is an Affected Party (as so
defined) and, in either event, the Swap Termination Value owed by the
Borrower or such Subsidiary as a result thereof is greater than the
Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party is subject to
a Bankruptcy Event; or
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(g) Judgments. There is entered against the Borrower or any
Subsidiary (i) any one or more final judgments or orders for the payment
of money in an aggregate amount exceeding the Threshold Amount (to the
extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage), or (ii) any one or more non-monetary
final judgments that have, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and, in
either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of ten (10)
consecutive days during which a stay of enforcement of such judgment, by
reason of a pending appeal or otherwise, is not in effect; or
(h) ERISA. (i) An ERISA Event occurs with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of the Borrower under Title IV of ERISA
to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate
amount in excess of the Threshold Amount, or (ii) the Borrower or any
ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of the Threshold Amount; or
(i) Invalidity of Loan Documents; Guarantees. (i) Any Loan
Document, at any time after its execution and delivery and for any
reason other than as expressly permitted hereunder or satisfaction in
full of all the Obligations, ceases to be in full force and effect; or
any Loan Party or any other Person contests in any manner the validity
or enforceability of any Loan Document; or any Loan Party denies that
it has any or further liability or obligation under any Loan Document,
or purports to revoke, terminate or rescind any Loan Document; or (ii)
except as the result of or in connection with a dissolution, merger or
disposition of a Subsidiary not prohibited by Section 8.04 or Section
8.05, the Guaranty given by any Guarantor hereunder or any provision
thereof shall cease to be in full force and effect, or any Guarantor
hereunder or any Person acting by or on behalf of such Guarantor shall
deny or disaffirm such Guarantor's obligations under its Guaranty, or
any Guarantor shall default in the due performance or observance of any
term, covenant or agreement on its part to be performed or observed
pursuant to its Guaranty; or
(j) Change of Control. There occurs any Change of Control.
9.02 Remedies Upon Event of Default.
If any Event of Default occurs and is continuing, the Administrative
Agent shall, at the request of, or may, with the consent of, the Required
Lenders (except with respect to clause (b) below, which is addressed in proviso
(ii) at the end of this Section 9.02), take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be
terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due
and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C
Obligations (in an amount equal to the then Outstanding Amount thereof);
and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or
applicable law;
provided, however, that (i) upon the occurrence of any Bankruptcy Event
with respect to the Borrower under the Bankruptcy Code of the United
States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically
terminate, the unpaid
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principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without
further act of the Administrative Agent or any Lender; and (ii)
notwithstanding anything to the contrary contained in this Section 9.02,
the Administrative Agent shall, in accordance with clause (b) above,
declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due
and payable, upon the written request of the Majority Lenders to the
extent there exists at the time of such request a continuing Event of
Default that is predicated on Section 9.01(a) hereof.
9.03 Application of Funds.
After the acceleration of the Obligations as provided for in Section
9.02(b) (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 9.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts
payable under Article III) payable to the Administrative Agent in its capacity
as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the
Lenders (including Attorney Costs and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans and L/C Borrowings, ratably among the Lenders
in proportion to the respective amounts described in this clause Third payable
to them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans, L/C Borrowings and to Cash Collateralize the undrawn
amounts of Letters of Credit, ratably among the Lenders in proportion to the
respective amounts described in this clause Fourth held by them;
Fifth, to payment of that portion of the Obligations constituting the
unpaid Swap Termination Value under any Swap Contracts between the Borrower and
any Lender or Affiliate of any Lender, ratably among the Lenders (or, if
applicable, their Affiliate(s)) in proportion to the respective amounts
described in this clause Fifth held by them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above
shall be applied to satisfy drawings under such Letters of Credit as they occur.
To the extent any Letter of Credit expires without being drawn on and there is,
at such time, no then-continuing Default or Event of Default, any amount used to
Cash Collateralize such Letter of Credit shall be returned to the Borrower (with
interest calculated in accordance with Section 2.03(g)). If any amount remains
on deposit as Cash Collateral after all Letters of Credit have either been fully
drawn or expired, such remaining amount shall be applied to the other
Obligations, if any, in the order set forth above.
Notwithstanding anything contained herein to the contrary, no Person that
is a swap counterparty under a Swap Contract shall be permitted to exercise any
rights or remedies against the Collateral except to the extent such rights and
remedies are exercised by the other Lenders pursuant to the terms of this
Agreement, regardless of the fact that the Loan Parties' obligations under such
a Swap Contract are considered part of the "Obligations" hereunder or that an
existing default under such a Swap Contract constitutes a Default or Event of
Default hereunder.
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ARTICLE X
ADMINISTRATIVE AGENT
10.01 Appointment and Authorization of Administrative Agent.
(a) Each Lender hereby irrevocably appoints, designates and authorizes
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith, and
the L/C Issuer shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Article X with respect to any acts taken or
omissions suffered by the L/C Issuer in connection with Letters of Credit issued
by it or proposed to be issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in this Article X and in the definition of
"Agent-Related Person" included the L/C Issuer with respect to such acts or
omissions, and (ii) as additionally provided herein with respect to the L/C
Issuer.
10.02 Delegation of Duties.
The Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct; provided, that the Administrative Agent shall
be responsible for gross negligence or willful misconduct of any such agents or
attorneys-in-fact.
10.03 Liability of Administrative Agent.
No Agent-Related Person shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any Lender
or participant for any recital, statement, representation or warranty made by
any Loan Party or any officer thereof, contained herein or in any other Loan
Document, or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of any Loan Party or any other party
to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party or
any Affiliate thereof.
10.04 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
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telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to any Loan
Party), independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent shall be fully justified in failing or refusing
to take any action under any Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance) and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 5.01, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
10.05 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default, except with respect to defaults in the payment
of principal, interest and fees required to be paid to the Administrative Agent
for the account of the Lenders, unless the Administrative Agent shall have
received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default and stating that such notice is a "notice of
default." The Administrative Agent will promptly notify the Lenders of its
receipt of any such notice. The Administrative Agent shall take such action with
respect to such Default as may be directed by the Required Lenders in accordance
with Article IX; provided, however, that unless and until the Administrative
Agent has received any such direction, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable or in the best interest of
the Lenders.
10.06 Credit Decision; Disclosure of Information by Administrative Agent.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower hereunder. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Loan Parties. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent herein, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Loan Parties or any of
their respective Affiliates which may come into the possession of any
Agent-Related Person.
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10.07 Indemnification of Administrative Agent.
Whether or not the transactions contemplated hereby are consummated, the
Lenders shall indemnify upon demand each Agent-Related Person (to the extent not
reimbursed by or on behalf of any Loan Party and without limiting the obligation
of any Loan Party to do so), pro rata, and hold harmless each Agent-Related
Person from and against any and all Indemnified Liabilities incurred by it;
provided, however, that no Lender shall be liable for the payment to any
Agent-Related Person of any portion of such Indemnified Liabilities to the
extent determined in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from such Agent-Related Person's own gross
negligence or willful misconduct; provided, however, that no action taken in
accordance with the directions of the Required Lenders shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive termination of the Aggregate Revolving
Commitments, the payment of all other Obligations and the resignation of the
Administrative Agent.
10.08 Administrative Agent in its Individual Capacity.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Loan Parties and their respective Affiliates
as though Bank of America were not the Administrative Agent or the L/C Issuer
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Loan Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Loan Party or such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them (except to the
extent such information is provided pursuant to the terms of this Agreement or
any Loan Document and the Administrative Agent is required, pursuant to such
documents, to deliver the same to the Lenders). With respect to its Loans, Bank
of America shall have the same rights and powers under this Agreement as any
other Lender and may exercise such rights and powers as though it were not the
Administrative Agent or the L/C Issuer, and the terms "Lender" and "Lenders"
include Bank of America in its individual capacity.
10.09 Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent upon 30 days'
notice to the Lenders; provided that any such resignation by the Administrative
Agent shall also constitute its resignation as L/C Issuer and Collateral Agent.
In addition, the Administrative Agent may be removed at the written direction of
the Required Lenders to the extent the Administrative Agent is shown to be
grossly negligent in the performance of its material obligations and/or duties
hereunder or to have engaged in willful misconduct in the performance of such
obligations and/or duties; provided that any such removal of an Administrative
Agent shall also constitute its removal as L/C Issuer and Collateral Agent.
Finally, to the extent the amount of the Administrative Agent's exposure under
Revolving Loans and Letters of Credit hereunder equals zero and the Commitment
of the Administrative Agent is also equal to zero, the Administrative Agent may
be removed at the written direction of the Required Lenders; provided that any
such removal of an Administrative Agent shall also constitute its removal as L/C
Issuer and Collateral Agent. If any Administrative Agent resigns or is otherwise
removed as Administrative Agent under this Agreement, the Required Lenders shall
appoint from among the Lenders a successor administrative agent for the Lenders,
which successor administrative agent shall be consented to by the Borrower at
all times other than during the existence of an Event of Default (which consent
of the Borrower shall not be unreasonably withheld or delayed). If no successor
administrative agent is appointed prior to the effective date of a resignation
(but not removal) of the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and the Borrower, a successor
administrative agent from among the Lenders (to the extent such appointment is
accepted by such Lender). Upon the acceptance of its appointment as successor
administrative agent hereunder (whether as a result of
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resignation or removal of a prior Administrative Agent), the Person acting as
such successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent, Collateral Agent and L/C Issuer and
the respective terms "Administrative Agent", "Collateral Agent" and "L/C Issuer"
shall mean such successor administrative agent and Letter of Credit issuer, and
the retiring or removed Administrative Agent's appointment, powers and duties as
Administrative Agent shall be terminated, the retiring or removed Collateral
Agent's appointment, powers and duties as Collateral Agent shall be terminated
and the retiring or removed L/C Issuer's rights, powers and duties as such shall
be terminated, without any other or further act or deed on the part of such
retiring or removed Person or any other Lender, other than the obligation of the
successor L/C Issuer to issue letters of credit in substitution for the Letters
of Credit, if any, outstanding at the time of such succession or to make other
arrangements satisfactory to the retiring L/C Issuer to effectively assume the
obligations of the retiring L/C Issuer with respect to such Letters of Credit.
After any retiring or removed Administrative Agent's resignation or removal (as
applicable) hereunder as Administrative Agent, the provisions of this Article X
and Sections 11.04 and 11.05 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement. Any removal of the Administrative Agent in connection with its
willful misconduct or gross negligence or the reduction of its Commitment and
Revolving Loan and Letter of Credit exposure to zero, shall be effective
immediately upon such removal. With respect to resignations by an Administrative
Agent, if no successor administrative agent has accepted appointment as
Administrative Agent by the date which is 30 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a successor agent as
provided for above. To the extent an Administrative Agent is removed or resigns
as Administrative Agent hereunder and has not been replaced as of the end of the
applicable 30 day period, (a) payments made by the Loan Parties hereunder or
under any other Loan Documents shall be made directly to the Lenders (rather
than to the Administrative Agent) in the respective amounts to which each such
Lender would have been entitled had such payments been made to the
Administrative Agent and thereafter distributed by such Administrative Agent to
the Lenders and (b) decisions regarding matters related to this Agreement and
the other Loan Document previously made by the Administrative Agent shall be
made based on the decision of the Majority Lenders, Required Lenders or
unanimously based on the portion of the Lenders that would otherwise have had
authority to direct the actions of the Administrative Agent.
10.10 Administrative Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Obligations that are owing and unpaid and to
file such other documents as may be necessary or advisable in order to
have the claims of the Lenders and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders and the Administrative Agent and their respective
agents and counsel and all other amounts due the Lenders and the
Administrative Agent under Sections 2.03(i) and (j), 2.08 and 11.04)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.08 and 11.04.
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Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
10.11 Collateral and Guaranty Matters.
The Lenders irrevocably authorize the Administrative Agent, at its option
and in its discretion,
(a) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Revolving Commitments and payment in full of all Obligations
(other than contingent indemnification obligations) and the expiration or
termination of all Letters of Credit, (ii) that is transferred or to be
transferred as part of or in connection with any Disposition permitted
hereunder or under any other Loan Document, or (iii) subject to Section
11.01, if approved, authorized or ratified in writing by the Required
Lenders;
(b) to subordinate any Lien on any Property granted to or held by
the Administrative Agent under any Loan Document to the holder of any Lien
on such Property that is permitted by Section 8.01(h); and
(c) to release any Guarantor from its obligations under the
Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of Property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this Section
10.11.
10.12 Other Agents; Arrangers and Managers.
None of the Lenders or other Persons identified on the facing page or
signature pages of this Agreement as a "syndication agent," "documentation
agent," "co-agent," "book manager," "lead manager," "arranger," "lead arranger"
or "co-arranger" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders or
other Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments, Etc.
No amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Borrower or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such amendment, waiver or consent shall:
(a) extend or increase the Commitment of any Lender (or reinstate
any Commitment terminated pursuant to Section 9.02) without the written
consent of such Lender (it being understood and agreed that a waiver of any
condition precedent set forth in Section 5.02 or of any Default or Event of
Default or mandatory reduction in the Commitments shall not constitute a
change in the terms of any Commitment of any Lender);
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(b) postpone any date fixed by this Agreement or any other Loan
Document for any payment (excluding mandatory prepayments) of principal,
interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby;
(c) reduce the principal of, or the rate of interest specified
herein on, any Loan or L/C Borrowing, or any fees or other amounts payable
hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby; provided, however, that only the
consent of the Required Lenders shall be necessary to amend the definition
of "Default Rate" or to waive any obligation of the Borrower to pay
interest at the Default Rate;
(d) change Section 2.12 or Section 9.03 in a manner that would
alter the pro rata sharing of payments required thereby without the written
consent of each Lender;
(e) change any provision of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender;
(f) except as the result of or in connection with a Disposition
not prohibited by Section 8.05 or Section 8.12, release all or
substantially all of the Collateral without the written consent of each
Lender;
(g) except as the result of or in connection with a dissolution,
merger or disposition of a Loan Party not prohibited by Section 8.04 or
Section 8.05, release the Borrower or substantially all of the other Loan
Parties from its or their obligations under the Loan Documents without the
written consent of each Lender; and, provided further, that (i) no
amendment, waiver or consent shall, unless in writing and signed by the L/C
Issuer in addition to the Lenders required above, affect the rights or
duties of the L/C Issuer under this Agreement or any Letter of Credit
Application relating to any Letter of Credit issued or to be issued by it;
(ii) no amendment, waiver or consent shall, unless in writing and signed by
the Administrative Agent in addition to the Lenders required above, affect
the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document; (iii) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties
thereto; or
(h) change any of the following definitions without the written
consent of each Lender: "Applicable CR Factor", "Applicable Discount
Factor", "Applicable Index Rate", "Bondable Net Lease", "Borrowing Base",
"Eligible Lease", "Eligible Lease Monthly Borrowing Factor", "Eligible
Lease NPV" and "Eligible Lessee".
Notwithstanding anything to the contrary herein, no Defaulting Lender shall
have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersedes the unanimous consent provisions set forth herein
and (y) the Required Lenders shall determine whether or not to allow a Loan
Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding and such determination shall be binding on all of the Lenders.
11.02 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
by facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or (subject to subsection
(c) below) electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
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(i) if to the Borrower, the Administrative Agent or the L/C
Issuer, to the address, facsimile number, electronic mail address or
telephone number specified for such Person on Schedule 11.02 or to such
other address, facsimile number, electronic mail address or telephone
number as shall be designated by such party in a notice to the other
parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its Administrative
Questionnaire or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a
notice to the Borrower, the Administrative Agent and the L/C Issuer.
All such notices and other communications shall be deemed to be given or
made upon the earlier to occur of (i) actual receipt by the relevant party
hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on
behalf of the relevant party hereto; (B) if delivered by mail, four Business
Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile,
when sent and receipt has been confirmed by telephone; and (D) if delivered by
electronic mail (which form of delivery is subject to the provisions of
subsection (c) below), when delivered; provided, however, that notices and other
communications to the Administrative Agent and the L/C Issuer pursuant to
Article II shall not be effective until actually received by such Person. In no
event shall a voicemail message be effective as a notice, communication or
confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in Section 7.02, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices) purportedly given by or on behalf of the
Borrower even if (i) such notices were not made in a manner specified herein,
were incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrower shall indemnify each
Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower. All telephonic notices to and
other communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
11.03 No Waiver; Cumulative Remedies.
No failure by any Lender or the Administrative Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.04 Attorney Costs, Expenses and Taxes.
The Loan Parties jointly and severally agree (a) to pay or reimburse the
Administrative Agent for all costs and expenses incurred in connection with the
development, preparation, negotiation and execution of this Agreement and the
other Loan Documents and any amendment, waiver, consent or other modification of
the provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated),
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and the consummation and administration of the transactions contemplated hereby
and thereby, including all Attorney Costs, and (b) to pay or reimburse the
Administrative Agent and each Lender for all costs and expenses incurred in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or the other Loan Documents (including
all such costs and expenses incurred during any "workout" or restructuring in
respect of the Obligations and during any legal proceeding, including any
proceeding under any Debtor Relief Law), including all Attorney Costs. The
foregoing costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and other
out-of-pocket expenses incurred by the Administrative Agent and the cost of
independent public accountants and other outside experts retained by the
Administrative Agent or any Lender. All amounts due under this Section 11.04
shall be payable within ten Business Days after demand therefor. The agreements
in this Section shall survive the termination of the Aggregate Revolving
Commitments and repayment of all other Obligations.
11.05 Indemnification by the Borrower.
Whether or not the transactions contemplated hereby are consummated, the
Loan Parties jointly and severally shall indemnify and hold harmless each
Agent-Related Person, each Lender and their respective Affiliates, directors,
officers, employees, counsel, agents and attorneys-in-fact (collectively the
"Indemnitees") from and against any and all liabilities, obligations, losses,
damages, penalties, claims, demands, actions, judgments, suits, costs, expenses
and disbursements (including Attorney Costs) of any kind or nature whatsoever
which may at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection with (a)
the execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit
or the use or proposed use of the proceeds therefrom (including any refusal by
the L/C Issuer to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (c) any actual or alleged presence or
release of Hazardous Materials on or from any property currently or formerly
owned or operated by the Borrower, any Subsidiary or any other Loan Party, or
any Environmental Liability related in any way to the Borrower, any Subsidiary
or any other Loan Party, or (d) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, investigation, litigation or
proceeding) and regardless of whether any Indemnitee is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"), in all cases, whether
or not caused by or arising, in whole or in part, out of the negligence of the
Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses or
disbursements are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee. No Indemnitee shall be liable for any damages
arising from the use by others of any information or other materials obtained
through IntraLinks or other similar information transmission systems in
connection with this Agreement, nor shall any Indemnitee have any liability for
any indirect or consequential damages relating to this Agreement or any other
Loan Document or arising out of its activities in connection herewith or
therewith (whether before or after the Closing Date). All amounts due under this
Section 11.05 shall be payable within ten Business Days after demand therefor.
The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the
Aggregate Revolving Commitments and the repayment, satisfaction or discharge of
all the other Obligations.
11.06 Payments Set Aside.
To the extent that any payment by or on behalf of any Loan Party is made to
the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative
Agent, plus interest
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thereon from the date of such demand to the date such payment is made at a rate
per annum equal to the Federal Funds Rate from time to time in effect.
11.07 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section, or (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of subsection (f) or (h) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans (including for purposes of this
subsection (b), participations in L/C Obligations) at the time owing to it);
provided that (i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time owing to
it or in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund (as defined in subsection (g) of this Section) with respect to a
Lender, the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) subject to each such assignment, determined as of
the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$2,500,000.00 unless each of the Administrative Agent and, so long as no Event
of Default has occurred and is continuing, the Borrower otherwise consents (each
such consent not to be unreasonably withheld or delayed); (ii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement with respect to
the Loans or the Commitment assigned; (iii) any assignment of a Revolving
Commitment must be approved by the Administrative Agent and the L/C Issuer
unless the Person that is the proposed assignee is itself a Lender, an Affiliate
of a Lender or an Approved Fund; and (iv) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500.00; provided, that to
the extent a Lender makes multiple assignments involving contemporaneous
transfers to or from its Affiliates or Approved Funds with respect to such
Lender, such assignments shall be subject to the payment of only one processing
and recordation fee pursuant to this subclause (iv). Subject to acceptance and
recording thereof by the Administrative Agent pursuant to subsection (c) of this
Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.01, 3.04, 3.05, 11.04 and 11.05 with respect to facts and
circumstances occurring prior to the effective date of such assignment). Upon
request, the Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this subsection shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent
of the Borrower, shall maintain at the Administrative Agent's Office a copy of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender
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hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person
(other than a natural person or the Borrower or any of the Borrower's Affiliates
or Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender's participations in L/C
Obligations) owing to it); provided that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in the first proviso to Section 11.01
that directly affects such Participant. Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 11.09 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.12 as though it were a
Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.04 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.01 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 11.15 as though
it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its Note,
if any) to secure obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(g) Reserved.
(h) Notwithstanding anything to the contrary contained herein, any
Lender that is a Fund may create a security interest in all or any portion of
the Loans owing to it and the Note, if any, held by it to the trustee for
holders of obligations owed, or securities issued, by such Fund as security for
such obligations or securities, provided that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this
Section 11.07, (i) no such pledge shall release the pledging Lender from any of
its obligations under the Loan Documents and (ii) such trustee shall not be
entitled to exercise any of the rights of a Lender under the Loan Documents even
though such trustee may have acquired ownership rights with respect to the
pledged interest through foreclosure or otherwise.
(i) Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may, upon 30 days' notice to the Borrower
and the Lenders, resign as L/C Issuer. In the event of any such resignation as
L/C Issuer, the Borrower shall be entitled to appoint from among the Lenders a
successor L/C Issuer hereunder; provided, however, that no failure by the
Borrower to appoint any such successor shall affect the resignation of Bank of
America as L/C Issuer. If Bank of America resigns as L/C Issuer, it shall retain
all the rights and obligations of the L/C Issuer hereunder with respect to all
Letters of Credit outstanding as of the effective date of its resignation as L/C
Issuer and all L/C Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.03(c)).
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11.08 Confidentiality.
Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential); (b) to the extent requested by any regulatory
authority (including any self-regulatory authority, such as the National
Association of Insurance Commissioners); (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process; (d)
to any other party to this Agreement; (e) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any suit, action or
proceeding relating to this Agreement or any Loan Document or the enforcement of
rights hereunder or thereunder; (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee
of or Participant in, or any prospective assignee of or Participant in, any of
its rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or to any credit derivative
transaction relating to the Loan Parties and their obligations; (g) with the
consent of the Borrower; and (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent or any Lender on a nonconfidential
basis from a source other than the Loan Parties. For purposes of this Section,
"Information" means all information received from any Loan Party relating to any
Loan Party or any of their respective business, other than any such information
that is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by any Loan Party; provided that, in the case of
information received from a Loan Party after the date hereof, such information
is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information. Notwithstanding anything herein to the contrary,
"Information" shall not include, and the Administrative Agent and each Lender
may disclose without limitation of any kind, any information with respect to the
"tax treatment" and "tax structure" (in each case, within the meaning of
Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby
and all materials of any kind (including options or other tax analyses) that are
provided to the Administrative Agent or such Lender relating to such tax
treatment and tax structure; provided, that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other information, this
sentence shall only apply to such portions of the document or similar item that
relate to the tax treatment or tax structure of the Loans, Letters of Credit and
other transactions contemplated hereby.
11.09 Set-off.
In addition to any rights and remedies of the Lenders provided by law, upon
the occurrence and during the continuance of any Event of Default, each Lender
is authorized at any time and from time to time, without prior notice to the
Borrower or any other Loan Party, any such notice being waived by the Borrower
(on its own behalf and on behalf of each Loan Party) to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender to or for the credit or the
account of the respective Loan Parties against any and all Obligations owing to
such Lender hereunder or under any other Loan Document, now or hereafter
existing, to the extent such Obligations are due and owing at such time (whether
as scheduled or as a result of any acceleration of such Obligations pursuant to
the terms of this Agreement); provided, however, that no Lender shall be
permitted, pursuant to this Section, to set off any amounts under or with
respect to rental payments under any Eligible Lease unless and until such
payments have been made into the account specified by the Administrative Agent
in connection with a Payment Consent. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and application
made by such Lender; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application.
11.10 Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan Document,
the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the
"Maximum Rate"). If the Administrative Agent or any Lender shall receive
interest in an amount that
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exceeds the Maximum Rate, the excess interest shall be applied to the principal
of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower.
In determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to
the extent permitted by applicable Law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.
11.11 Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
11.12 Integration.
This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this Agreement
shall control; provided that the inclusion of supplemental rights or remedies in
favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was
drafted with the joint participation of the respective parties thereto and shall
be construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof.
11.13 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by
the Administrative Agent and each Lender, regardless of any investigation made
by the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
11.14 Severability.
If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
11.15 Tax Forms.
(a) (i) Each Lender that is not a "United States person" within the
meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") shall deliver to
the Administrative Agent, prior to receipt of any payment subject to withholding
under the Code (or upon accepting an assignment of an interest herein), two duly
signed completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Foreign Lender and entitling it to an exemption from, or
reduction of, withholding tax on all payments to be made to such Foreign Lender
by the Borrower pursuant to this Agreement) or IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Foreign Lender by the
Borrower pursuant to this Agreement) or such other evidence satisfactory to the
Borrower and the Administrative Agent that such Foreign Lender is entitled to an
exemption from, or reduction of, U.S. withholding tax, including any exemption
pursuant to Section 881(c) of the Code. Thereafter and from time to time, each
such Foreign Lender shall (A) promptly submit to the Administrative Agent such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted
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from time to time by the relevant United States taxing authorities) as may then
be available under then current United States laws and regulations to avoid, or
such evidence as is satisfactory to the Borrower and the Administrative Agent of
any available exemption from or reduction of, United States withholding taxes in
respect of all payments to be made to such Foreign Lender by the Borrower
pursuant to this Agreement, (B) promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction, and (C) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws that the Borrower make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.
(iii) Each Foreign Lender, to the extent it does not act or ceases
to act for its own account with respect to any portion of any sums paid or
payable to such Lender under any of the Loan Documents (for example, in the
case of a typical participation by such Lender), shall deliver to the
Administrative Agent on the date when such Foreign Lender ceases to act for
its own account with respect to any portion of any such sums paid or
payable, and at such other times as may be necessary in the determination
of the Administrative Agent (in the reasonable exercise of its discretion),
(A) two duly signed completed copies of the forms or statements required to
be provided by such Lender as set forth above, to establish the portion of
any such sums paid or payable with respect to which such Lender acts for
its own account that is not subject to U.S. withholding tax, and (B) two
duly signed completed copies of IRS Form W-8IMY (or any successor thereto),
together with any information such Lender chooses to transmit with such
form, and any other certificate or statement of exemption required under
the Code, to establish that such Lender is not acting for its own account
with respect to a portion of any such sums payable to such Lender.
(iv) The Borrower shall not be required to pay any additional
amount to any Foreign Lender under Section 3.01 (A) with respect to any
Taxes required to be deducted or withheld on the basis of the information,
certificates or statements of exemption such Lender transmits with an IRS
Form W-8IMY pursuant to this Section 11.15(a) or (B) if such Lender shall
have failed to satisfy the foregoing provisions of this Section 11.15(a);
provided that if such Lender shall have satisfied the requirement of this
Section 11.15(a) on the date such Lender became a Lender or ceased to act
for its own account with respect to any payment under any of the Loan
Documents, nothing in this Section 11.15(a) shall relieve the Borrower of
its obligation to pay any amounts pursuant to Section 3.01 in the event
that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Lender is no
longer properly entitled to deliver forms, certificates or other evidence
at a subsequent date establishing the fact that such Lender or other Person
for the account of which such Lender receives any sums payable under any of
the Loan Documents is not subject to withholding or is subject to
withholding at a reduced rate.
(v) The Administrative Agent may, without reduction, withhold any
Taxes required to be deducted and withheld from any payment under any of
the Loan Documents with respect to which the Borrower is not required to
pay additional amounts under this Section 11.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is a
"United States person" within the meaning of Section 7701(a)(30) of the Code
shall deliver to the Administrative Agent two duly signed completed copies of
IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction.
(c) If any Governmental Authority asserts that the Administrative Agent
did not properly withhold or backup withhold, as the case may be, any tax or
other amount from payments made to or for the account of any Lender, such Lender
shall indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, and costs and expenses (including
Attorney Costs) of the Administrative Agent. The obligation of the Lenders under
this Section shall survive the termination of the Aggregate Revolving
Commitments, repayment of all other Obligations hereunder and the resignation of
the Administrative Agent.
74
11.16 Replacement of Lenders.
Under any circumstances set forth herein providing that the Borrower shall
have the right to replace a Lender as a party to this Agreement, the Borrower
may, upon notice to such Lender and the Administrative Agent, replace such
Lender by causing such Lender to assign its Commitment and outstanding Loans
(with the assignment fee to be paid by the Borrower in such instance) pursuant
to Section 11.07(b) to one or more other Lenders or Eligible Assignees procured
by the Borrower. The Borrower shall (x) pay in full all principal, interest,
fees and other amounts owing to such Lender through the date of replacement
(including any amounts payable pursuant to Section 3.05), (y) provide
appropriate assurances and indemnities (which may include letters of credit) to
the L/C Issuer as it may reasonably require with respect to any continuing
obligation to fund participation interests in any L/C Obligations then
outstanding, and (z) release such Lender from its obligations under the Loan
Documents. Any Lender being replaced shall execute and deliver an Assignment and
Assumption with respect to such Lender's Commitment and outstanding Loans and
participations in L/C Obligations.
11.17 Governing Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, the LAW OF THE STATE OF NEW YORK applicable to agreements made and to be
performed entirely within such State; PROVIDED THAT THE ADMINISTRATIVE Agent AND
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURTS SITTING IN THE
MIDDLE DISTRICT OF NORTH CAROLINA OR IN NEW YORK, NEW YORK, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE BORROWER, THE ADMINISTRATIVE Agent AND EACH
LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. THE BORROWER, THE ADMINISTRATIVE Agent AND EACH
LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER,
THE ADMINISTRATIVE Agent AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
THE LAW OF SUCH STATE.
11.18 Waiver of Right to Trial by Jury.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.19 ENTIRE AGREEMENT.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
75
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BORROWER:
FIRST STATES INVESTORS BAI, LLC,
a Delaware limited liability company
By:_____________________________
Name:___________________________
Title:__________________________
GUARANTORS:
[NONE AS OF THE CLOSING DATE]
AGENTS, ISSUERS AND LENDERS
BANK OF AMERICA, N.A.
individually in its capacity as
Administrative Agent
By:___________________________________
Name:_________________________________
Title:________________________________
BANK OF AMERICA, N.A.,
individually in its capacity as a
Lender, in its capacity as L/C Issuer
and in its capacity as Collateral
Agent
By:___________________________________
Name:_________________________________
Title:________________________________
BANC OF AMERICA SECURITIES LLC
individually in its capacity as Sole
Lead Arranger and in its capacity as
Book Manager
By:___________________________________
Name:_________________________________
Title:________________________________
[signature pages continued]
THE GOVERNOR AND COMPANY OF THE BANK
OF IRELAND
individually in its capacity as a
Lender
By:___________________________________
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Senior Manager
By:___________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title:________________________________
[signature pages continued]
BANK OF MONTREAL
individually in its capacity as a
Lender
By:___________________________________
Name:_________________________________
Title:________________________________
[signature pages continued]
CAIXA GERAL DE DEPOSITOS, S.A., NEW YORK BRANCH
individually in its capacity as a Lender
By:___________________________________
Name:_________________________________
Title:________________________________
[signature pages continued]
UBS AG, CAYMAN ISLANDS BRANCH
individually in its capacity as a Lender
By:___________________________________________
Name:_________________________________________
Title:________________________________________
[signature pages continued]
WACHOVIA BANK, NATIONAL ASSOCIATION
individually in its capacity as a Lender
By:__________________________________________
Name:________________________________________
Title:_______________________________________
[end of signature pages]
Schedule 1.01(a)
PRE-APPROVED ELIGIBLE LEASES
None.
Schedule 2.01
COMMITMENTS AND PRO RATA SHARES
---------------------------------------------------------------------------------------------------------
Lender Revolving Committed Amount Revolving Commitment Percentage
------ -------------------------- -------------------------------
---------------------------------------------------------------------------------------------------------
1. Bank of America, N.A. $18,750,000.00 18.75%
---------------------------------------------------------------------------------------------------------
2. The Governor and Company of $10,000,000.00 10.00%
the Bank of Ireland
---------------------------------------------------------------------------------------------------------
▇.▇▇▇▇ of Montreal $18,750,000.00 18.75%
---------------------------------------------------------------------------------------------------------
4.Caxia Geral de Depositos, S.A., $ 15,000,00.00 15.00%
New York Branch
---------------------------------------------------------------------------------------------------------
▇.▇▇▇ $18,750,000.00 18.75%
---------------------------------------------------------------------------------------------------------
6.Wachovia $18,750,000.00 18.75%
---------------------------------------------------------------------------------------------------------
Totals: $ 100,000,000 100.00%
---------------------------------------------------------------------------------------------------------
Schedule 6.03
REQUIRED CONSENTS, AUTHORIZATIONS, NOTICES AND FILINGS
None.
Schedule 6.09
ENVIRONMENTAL MATTERS
None.
Schedule 6.10
INSURANCE
-------------------------------------------------------------------------------------------------------------
Carrier Policy Number Expiration Type Amount
------- ------------- ---------- ---- ------
FSI4000B Date
-------- ----
-------------------------------------------------------------------------------------------------------------
Zurich American GLO2871475-04 6/30/03 GL $2mil agg / $1mil occ
-------------------------------------------------------------------------------------------------------------
Vigilant Insurance 0379786033 6/30/03 Umbrella $25mil xs Primary
-------------------------------------------------------------------------------------------------------------
St. ▇▇▇▇ Fire & Marine QI09000294 6/30/03 Umbrella $25mil xs $25mil
-------------------------------------------------------------------------------------------------------------
Lexington Insurance 4260969 6/30/03 Umbrella $25mil p/o $50 mil xs $50 mil
-------------------------------------------------------------------------------------------------------------
Commercial Underwriters CU-4260969 6/30/03 Umbrella $25mil p/o $50 mil xs $50 mil
Ins. Co
-------------------------------------------------------------------------------------------------------------
Columbia Casualty Co ROD249180474 6/30/03 Umbrella $25mil xs $100mil
-------------------------------------------------------------------------------------------------------------
Illinois Union Ins. Co ▇▇▇▇▇▇▇▇▇▇▇▇ 6/30/03 Umbrella $25mil xs 125mil
-------------------------------------------------------------------------------------------------------------
Schedule 6.13
(a) CORPORATE STRUCTURE
See attached organizational chart.
The Parent owns 100% of the outstanding Capital Stock of the Borrower. The
Borrower currently has no subsidiaries.
(b) SUBSIDIARIES
------------------------------------------------------------------------------------------------------------------
Options, Warrants,
Rights of
Percentage of Conversion
Capital Stock and Purchase
Jurisdiction of Capital Stock Outstanding Owned and All Other
Entity Name Formation Outstanding by Loan Parties Similar Rights
----------- --------- ----------- --------------- --------------
------------------------------------------------------------------------------------------------------------------
First States Investors Delaware 100% of membership 0% None
BAI, LLC interests
100% of membership
interests owned by
First States Group,
L.P.
------------------------------------------------------------------------------------------------------------------
Schedule 6.19(a)
REAL PROPERTIES
None.
Schedule 6.19(b)
CHIEF EXECUTIVE OFFICES/ JURISDICTION OF INCORPORATION/
PRINCIPAL PLACES OF BUSINESS
First States Investors BAI, LLC
---------------------------------------------------------------
Jurisdiction of Incorporation Principal Place of Business
---------------------------------------------------------------
Delaware (LLC) ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------
Schedule 11.02
ADMINISTRATIVE AGENT'S OFFICE, CERTAIN ADDRESSES FOR NOTICES
NOTICES
BORROWER:
FIRST STATES INVESTORS 4000A, LLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile Number: 215. 887.2585
Electronic Mail: ▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Vice
President and General Counsel
With a Copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile Number: 215.963.5299
Electronic Mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
BANK OF AMERICA, N.A., AS
ADMINISTRATIVE AGENT AND/OR
L/C ISSUER:
▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
Bank of America, N.A.
Portfolio Management Real Estate
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Electronic Mail: ▇▇▇▇.▇▇▇▇▇▇-▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Telephone Number:▇▇▇.▇▇▇.▇▇▇▇
Facsimile Number:
LENDERS:
BANK OF AMERICA, N.A.
▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
Bank of America, N.A.
Portfolio Management Real Estate
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Electronic Mail: ▇▇▇▇.▇▇▇▇▇▇-▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Telephone Number: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile Number:
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
▇▇▇▇▇ ▇'▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇
Senior Manager
Bank of Ireland International Finance Ltd
La Touche House Bank of Ireland Corporate Building
International Financial Services Centre ▇▇▇▇ House, Ballsbridge
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Telephone Number: 011.353.1.611.5338 Telephone Number: 011.353.1.618.7470/7474
Facsimile Number: 011.353.1.829.0129 Facsimile Number: 011.353.1.618.7490
▇▇▇▇▇.▇'▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
BANK OF MONTREAL
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Dancer
Vice President Officer, Client Services, US
▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone Number: ▇▇▇.▇▇▇.▇▇▇▇ Telephone Number: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile Number: 312.845.4075 Facsimile Number: 312.750.6061
▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇ ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇.▇▇▇
CAIXA GERAL DE DEPOSITOS, S.A., NEW YORK BRANCH
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Senior Vice President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone Number:
Facsimile Number:
▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
UBS AG, CAYMAN ISLANDS ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Saint ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇
Associate Director Associate Director
C/0 UBS Warburg LLC C/0 UBS Warburg LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone Number: ▇▇▇.▇▇▇.▇▇▇▇ Telephone Number: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile Number: 203.719.3092 Facsimile Number: 203.719.3162
▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇
▇▇.▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
203.719.6867
203.719.0680
WACHOVIA BANK, NATIONAL ASSOCIATION
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Vice President Senior Analyst
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone Number: ▇▇▇.▇▇▇.▇▇▇▇ Telephone Number: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile Number: 704.383.6205 Facsimile Number: 704.383.7989