EXHIBIT 10.1
CREDIT AND INVESTMENT AGREEMENT
Dated as of December 9, 1997
Among
THE VINCAM GROUP, INC.,
as Company,
FLEET REAL ESTATE, INC.,
as Lessor
FLEET NATIONAL BANK,
as Agent,
and
THE LENDERS SIGNATORIES HERETO
TABLE OF CONTENTS
ARTICLE I
Defined Terms and Accounting Matters..........................2
Section 1.01 Terms Defined Above............................................2
Section 1.02 Certain Defined Terms..........................................2
Section 1.03 Accounting Terms and Determinations............................2
ARTICLE II
Commitments................................2
Section 2.01 Loans; Lessor Investment Payments..............................2
Section 2.02 Fundings.......................................................4
Section 2.03 Changes of Commitments.........................................5
Section 2.04 Fees...........................................................6
Section 2.05 Notes..........................................................6
Section 2.06 Several Obligations............................................6
Section 2.07 Applicable Funding Offices.....................................7
Section 2.09 Extension of Notes.............................................7
ARTICLE III
Payment of Loans and Lessor Investment Payments;
Payment of Interest, Yield and Other Amounts.................8
Section 3.01 Repayment of the Notes and Redemption of Lessor
Investment.....................................................8
Section 3.02 Prepayments and Redemptions....................................8
Section 3.03 Interest on Notes; Yield on Lessor Investment;
Overdue Amounts................................................9
Section 3.04 Payments by Lessor............................................11
Section 3.05 Applications of Payments and Proceeds.........................11
ARTICLE IV
Payments; Computations; Etc.........................13
Section 4.01 Payments......................................................13
Section 4.02 Pro Rata Treatment............................................14
Section 4.03 Computations..................................................14
Section 4.04 Non-receipt of Funds by the Agent.............................15
Section 4.05 Sharing of Payments...........................................15
Section 4.06 Taxes.........................................................16
ARTICLE V
Yield Protection and Illegality.....................18
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Section 5.01 Basis for Determining Interest Rate Inadequate or
Unfair........................................................18
Section 5.02 Illegality....................................................19
Section 5.03 Increased Cost and Reduced Return.............................21
Section 5.04 Base Rate Substituted for Adjusted LIBO Rate..................23
Section 5.05 Compensation..................................................24
Section 5.06 Payments and Computations.....................................24
ARTICLE VI
Conditions Precedent..........................25
Section 6.01 Conditions Precedent to Effectiveness of this
Agreement.....................................................25
Section 6.02 Initial and Subsequent Loans and Lessor Investment
Payments......................................................27
Section 6.03 Conditions Precedent for the Benefit of Lenders and
the Lessor....................................................28
Section 6.04 Closing.......................................................29
ARTICLE VII
Representations and Warranties....................29
Section 7.01 Company Representations and Warranties........................29
Section 7.02 Representations and Warranties of Lessor......................35
ARTICLE VIII
Covenants................................36
Section 8.01 Information...................................................37
Section 8.02 Notice of Default, Loss Event or Casualty
Occurrence....................................................38
Section 8.03 Inspection of Property, Books and Records.....................38
Section 8.04 Conduct of Business; Maintenance of Existence.................39
Section 8.05 Dissolution...................................................39
Section 8.06 Use of Proceeds...............................................39
Section 8.07 Compliance with Laws; Payment of Taxes........................39
Section 8.08 Insurance.....................................................40
Section 8.09 Maintenance of Property.......................................41
Section 8.10 Environmental Notices.........................................41
Section 8.11 Environmental Matters.........................................41
Section 8.12 Environmental Release.........................................41
Section 8.13 Consolidations, Merger or Acquisition.........................42
Section 8.14 Disposition of Assets.........................................43
Section 8.15 Liens, Etc....................................................43
Section 8.16 Restricted Payments...........................................43
Section 8.17 Investments...................................................43
Section 8.18 Indebtedness..................................................44
Section 8.19 Guarantees....................................................45
Section 8.20 Debt Coverage.................................................46
Section 8.21 Fixed Charges Coverage........................................46
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Section 8.22 Capital Ratio.................................................46
Section 8.23 Current Ratio.................................................46
Section 8.24 Minimum Tangible Net Worth....................................46
Section 8.25 Related Contracts.............................................46
Section 8.26 Transactions with Affiliates..................................46
Section 8.27 Agreement to Pledge, Etc......................................47
Section 8.28 Further Assurances............................................47
Section 8.29 Completion; Etc...............................................47
Section 8.30 Maintenance; Etc..............................................47
Section 8.31 Encroachments.................................................48
Section 8.32 Facility Plan.................................................48
Section 8.33 New Subsidiaries to Become Guarantors.........................48
Section 8.34 Covenants of Lessor...........................................49
ARTICLE IX
Events of Default............................49
Section 9.01 Events of Default.............................................49
Section 9.02 Remedies......................................................52
ARTICLE X
The Agent...............................53
Section 10.01 Appointment, Powers and Immunities...........................53
Section 10.02 Reliance by Agent............................................53
Section 10.03 Defaults.....................................................54
Section 10.04 Rights as a Lender...........................................55
Section 10.05 Indemnification..............................................55
Section 10.06 Non-Reliance on Agent and other Lenders......................55
Section 10.07 Failure to Act...............................................56
Section 10.08 Resignation or Removal of Agent..............................56
ARTICLE XI
Miscellaneous..............................56
Section 11.01 Amendments, Etc..............................................56
Section 11.02 Notices......................................................57
Section 11.03 Payment of Expenses, Indemnities, etc........................58
Section 11.04 No Waiver; Remedies..........................................63
Section 11.05 Right of Set-Off.............................................63
Section 11.06 Assignments and Participations...............................63
Section 11.07 Invalidity...................................................67
Section 11.08 Entire Agreement.............................................67
Section 11.09 References...................................................67
Section 11.10 Successors; Survivals........................................67
Section 11.11 Captions.....................................................67
Section 11.12 Counterparts.................................................68
Section 11.13 Confidentiality..............................................68
Section 11.14 GOVERNING LAW; SUBMISSION TO JURISDICTION....................68
Section 11.15 Interest.....................................................69
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Section 11.16 Characterization.............................................71
Section 11.17 Compliance...................................................72
Section 11.18 Facility.....................................................72
Section 11.19 The Lessor...................................................72
Section 11.20 Lenders......................................................73
Section 11.21 Waiver of Jury Trial.........................................73
EXHIBITS
Exhibit A - Legal Description of Site
Exhibit B - Form of Tranche A Note
Exhibit C - Form of Tranche B Note
Exhibit D - Form of Assignment and Acceptance Agreement
Exhibit E - Loan Percentage Shares
Exhibit F - Form of legal opinion of counsel to the Company
and the Guarantors
Exhibit G - Form of Contribution Agreement
Exhibit H - Form of Compliance Certificate
Exhibit I - Form of Guaranty (Lessee)
Exhibit J - Form of Advance Notice
SCHEDULES
Schedule 1.02 - Defined Terms
Schedule 1.02(a) - Facility Plan and List of Facility Plan
Documents
Schedule 1.02(b) - Requirements for Completion
Schedule 1.02(c) - Pricing Schedule
Schedule A - General Disclosure
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CREDIT AND INVESTMENT AGREEMENT (as the same may be amended,
modified or supplemented from time to time, this "AGREEMENT" or the "CREDIT
AGREEMENT") dated as of December 9, 1997 among The Vincam Group, Inc. (the
"COMPANY"), Fleet Real Estate, Inc., a Rhode Island corporation (the "LESSOR");
each of the Lenders that is a party hereto or becomes a party hereto as provided
in Section 11.06 (individually, together with its successors and assigns, a
"LENDER," and collectively, together with their successors and assigns, the
"LENDERS"); and FLEET NATIONAL BANK, a national banking association (in its
individual capacity, "FLEET BANK "), as agent for the Lenders (in such capacity,
together with its successors in such capacity, the "AGENT").
RECITALS
WHEREAS, the Lessor has purchased, as of the date hereof, certain real
property located in Dade County, Florida, described in greater detail on EXHIBIT
A (the "SITE"), and intends to construct on the Site a building and related
enhancements and improvements; and
WHEREAS, the Lessor has leased the Site, and the building and other
enhancements and improvements thereon, after completion, to the Company pursuant
to the Lease; and
WHEREAS, the Company, acting as the Lessor's Acquisition/Construction
Agent under an the Agency Agreement, will, on behalf of the Lessor, complete the
construction and installation of all such enhancements and improvements on the
Site and provide operations, maintenance and management support; and
WHEREAS, in order to finance the acquisition of the Lessor's fee simple
estate in the Site, and the construction of the building and related
enhancements and improvements on the Site for the ultimate use and benefit of
the Company in accordance with the Lease, the Company has requested that the
Lenders extend certain loans to the Lessor in an aggregate principal amount of
up to $11,640,000, and that the Lessor make certain Lessor Investment Payments
in an aggregate principal amount of up to $360,000; and
WHEREAS, to induce the Lessor, the Agent and the Lenders to enter into
this Agreement and other agreements relating to the transactions contemplated
hereby, the Guarantors have agreed to guarantee the obligations of the Company
to the Lessor and certain of the obligations of the Lessor under this Agreement
to the Lenders and the Lessor under the Transaction Documents;
WHEREAS, the Lenders have agreed to extend the requested Loans and the
Lessor has agreed to make the requested Lessor
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Investment Payments upon the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
Defined Terms and Accounting Matters
Section 1.01 TERMS DEFINED ABOVE. As used in this Agreement,
the terms defined in the preamble and recitals above shall have the meanings
indicated above.
Section 1.02 CERTAIN DEFINED TERMS. As used herein, all
capitalized terms used but not otherwise defined herein shall have the meaning
specified for such term in SCHEDULE 1.02.
Section 1.03 ACCOUNTING TERMS AND DETERMINATIONS. Unless
otherwise specified herein, all accounting terms used- herein shall be
interpreted, all determinations with respect to accounting matters hereunder
shall be made, and all financial statements and certificates and reports as to
financial matters required to be delivered hereunder shall be prepared, in
accordance with GAAP; PROVIDED that if any change in GAAP in itself materially
affects the calculation of any financial covenant in this Agreement, the Company
may by notice to the Agent, or the Agent may by notice to the Company, require
that such covenant thereafter be calculated in accordance with GAAP as in
effect, and applied by the Company, immediately before such change in GAAP
occurs. If such notice is given, the Compliance Certificates delivered pursuant
to Section 8.01(c) after such change occurs shall be accompanied by
reconciliations of the difference between the calculation set forth therein and
a calculation made in accordance with GAAP as in effect from time to time after
such change occurs.
ARTICLE II
Commitments
Section 2.01 LOANS; LESSOR INVESTMENT PAYMENTS.
(a) LOANS. Each Lender severally agrees, on the terms and
conditions of this Agreement, to make Tranche A Loans and Tranche B Loans to the
Lessor during the period from and including the later of (y) the Initial Funding
Date or (z) the date that such Lender becomes a party to this Agreement as
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provided in Section 11.06(b), up to and including the Completion Date, in an
aggregate principal amount at any one time outstanding up to but not exceeding
the amount of such Lender's Loan Percentage Share of the Aggregate Tranche A
Loan Commitments and Aggregate Tranche B Loan Commitments, respectively;
PROVIDED, HOWEVER, that the aggregate principal amount of all Loans by all
Lenders under this Section 2.01(a) at any one time outstanding shall not exceed
the lesser of (y) ninety-seven percent (97%) of the Facility Cost as incurred or
invoiced or (z) the Aggregate Loan Commitments. All Loans shall be utilized only
for items of Facility Cost, which utilization shall be evidenced to each
Lender's satisfaction simultaneously with and as a condition to each Loan. All
Loans and all Borrowings shall be made so as to satisfy the Required Percentage
Composition.
(b) LESSOR INVESTMENT PAYMENTS. The Lessor agrees, on the
terms and conditions of this Agreement, to fund a portion of the Facility Cost
by making Lessor Investment Payments during the period from and including the
Initial Funding Date up to and including the Completion Date, in an aggregate
amount equal to Lessor Investment Commitment.
(c) LIMITATIONS ON LOANS AND LESSOR INVESTMENT PAYMENTS. The
aggregate amount of all Lessor Investment Payments shall not exceed the amount
of the Lessor Investment Commitment and the aggregate amount of all Tranche A
Loans and Tranche B Loans shall not exceed the amount of the Aggregate Tranche A
Loan Commitments and Aggregate Tranche B Loan Commitments, respectively, or the
Aggregate Loan Commitments. Loans repaid may not be reborrowed. Lessor
Investment Payments repaid may not be readvanced. All Loans and Borrowings and
Lessor Investment Payments shall be made in such manner so as to satisfy the
Required Percentage Composition. All loans and Lessor Investment Payments shall
be utilized only for items of Facility Cost, which utilization shall be
evidenced or certified to the Agent's or the Lessor's reasonable satisfaction
simultaneously with and as a condition to each Loan or Lessor Investment Payment
as provided herein.
(d) CAPITALIZED INTEREST, YIELD, ETC.
(i) Prior to the Completion Date, all interest and other
amounts (other than Accrued Construction Term Yield) payable by the
Lessor under this Agreement shall be paid by the Borrowing of Loans and
the application of the proceeds of the Lessor Investment Payments. The
Company, as Acquisition/Construction Agent for the Lessor, shall give
Advance Notice in connection with any Loan made to pay such amounts or
of the amount of Lessor Investment Payments to be applied thereto.
Notwithstanding the foregoing, the aggregate amount of all Loans and
Lessor Investment Payments shall not exceed the Facility Cost.
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(ii) All Accrued Construction Term Yield shall be due and
payable as provided in Section 3.03(c).
Section 2.02 FUNDINGS.
(a) The Company, as Acquisition/Construction Agent for the
Lessor, from time to time as the Company may determine in accordance with this
Agreement and the Agency Agreement, shall give the Agent (which shall promptly
notify the Lenders and/or the Lessor, as applicable) Advance Notice in
substantially the form of EXHIBIT J (which may be telephonic if confirmed
promptly in writing) of each requested funding of a Loan or a Lessor Investment
Payment, which notice shall be irrevocable and effective only upon receipt by
the Agent, and shall specify the aggregate amount and the date of the Loans
and/or Lessor Investment Payments to be funded. Once given, an Advance Notice
may be revoked only upon payment of any amounts due to the Lenders or the Lessor
under section 5.05. The Advance Notice given with respect to the Initial Funding
Date shall, in addition to any Loans requested, request Lessor Investment
Payments in such amount as is necessary to cause the Required Percentage
Composition to be satisfied on such date. Not later than 1:00 p.m., prevailing
Eastern time, on the date specified for each funding hereunder, each Lender and
the Lessor shall make available the amount of the Loan and/or Lessor Investment
Payment to be made by it on such date at an account which the Agent shall
specify, in immediately available funds, for the account of the Lessor. The
amounts so received by the Agent shall, subject to the terms and conditions of
this Agreement, be made available to the Company as Acquisition/Construction
Agent for the Lessor by depositing the same, in immediately available funds, in
an account of the Company designated by the Lessor and maintained with the Agent
at its Principal Office, not later than 4:30 p.m. on the date of requested
Borrowing or Lessor Investment Payment. There shall be no more than two
Borrowings of Loans per calendar month.
(b) All Borrowings under Section 2.02(a) shall be in amounts
of at least $50,000 or in integral multiples of $10,000 in excess thereof, or
the remaining balance of the Aggregate Loan Commitments, if less.
(c) On the Completion Date, all Loans and Lessor Investment
Payments shall have been funded by the Lenders and the Lessor as herein provided
on a pro rata basis so that the Required Percentage Composition shall be
satisfied on such date. On the Completion Date (subject to the terms of Section
2.09), if the Lessor Investment Payments exceed 3% of the aggregate principal
amount of all Loans and Lessor Investment Payments, the Company, as
Acquisition/Construction Agent for the Lessor, shall either (i) subject to the
other terms and conditions of this Agreement, borrow Loans from the Lenders
and/or (ii) repay the excess amount of Lessor Investment Payments, such that, in
either
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case, after giving effect to such Loans or repayment, the Required Percentage
Composition shall be satisfied on such date. In addition, on the Completion
Date, if the aggregate principal amount of all Loans and Lessor Investment
Payments exceeds the Completion Date Appraised Amount (the amount of such excess
being the "Excess Amount Funded"), the Company, as Acquisition/Construction
Agent for the Lessor, shall deposit with the Agent cash or cash equivalents
satisfactory to the Agent in an aggregate amount equal to the Excess Amount
Funded, as cash collateral (the "Cash Collateral"), to secure the Loans and
Lessor Investments, and all interest, Yield, fees, expenses, indemnification
amounts and other amounts owed by the Lessee to the Lessor, or by the Lessor to
the Agents and the Lenders, pursuant to the Transaction Documents (collectively,
the "Transaction Obligations". The Cash Collateral shall be held by the Agent in
an interest bearing account, as security for the Transaction Obligations. So
long as no Event of Default has occurred, the accrued interest on the Cash
Collateral shall be paid to the Lessee by the Agent on the first Business Day of
each calendar month. Upon an Event of Default, the Agent shall have the right to
apply the Cash Collateral in payment of the Transaction Obligations in the order
provided in Section 3.05(b). Under the circumstances described in Section
3.05(a), the Cash Collateral may be used in paying the amounts described therein
in the order set forth therein.
Section 2.03 CHANGES OF COMMITMENTS. The Company, as
Acquisition/Construction Agent for the Lessor, shall have the right to terminate
or to reduce the amount of, or, prior to utilization thereof, terminate, the
Aggregate Loan Commitments and the Lessor Investment Commitment, at any time or
from time to time upon not less than three (3) Business Days prior written
notice to the Agent (which shall promptly notify the Lenders and the Lessor) of
each such termination or reduction, which notice shall specify the effective
date thereof and the amount of any such reduction (which shall not be less than
$1,000,000 or any multiple of $250,000 in excess thereof, with respect to the
Aggregate Loan Commitments) and shall be irrevocable and effective only upon
receipt by the Agent. Any request for a reduction in the amount of the
Commitments shall be pro rata among the Aggregate Loan Commitments and the
Lessor Investment Commitment so that, at all times, 3% of the Aggregate
Commitments will be comprised of the Lessor Investment Commitment and 97% of the
Aggregate Commitments will be comprised of the Aggregate Loan Commitments. The
Aggregate Loan Commitments and the Lessor Investment Commitment once terminated
or reduced may not be reinstated. In no event shall the Lessor Investment
Commitment be reduced below the outstanding principal amount of Lessor
Investment Payments, nor shall the Aggregate Loan Commitments be reduced below
the aggregate outstanding principal amount of the Loans. The Company may elect
to repay, pro rata, the Lessor Investment sufficient to maintain the Required
Percentage Composition and/or to give effect to any proposed reduction of the
Commitments.
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Section 2.04 FEES.
(a) The Company shall pay, or cause to be paid, from the
proceeds of Loans or the application of Lessor Investment Payments, or
otherwise, on the Closing Date to the Agent for the ratable account of the
Lenders in accordance with the Lessor Investment Commitment, an upfront fee in
the amount of $30,000.
(b) The Company shall pay, or cause to be paid, from the
proceeds of Loans or the application of Lessor Investment Payments, on the dates
specified therein (i) to the Agent for the Agent's account and (ii) to the
Lessor for the Lessor's account, the fees payable on the Closing Date as
specified in the fee letter dated August 25, 1997 between the Lessor and the
Lessee, as amended by the amendment letter dated as of November 20, 1997.
Section 2.05 NOTES.
(a) The Tranche A Loans made by each Lender under Section
2.01(a) shall be evidenced by a single promissory note executed by the Lessor in
substantially the form of EXHIBIT B (individually a "TRANCHE A NOTE" and
collectively the "TRANCHE A NOTES"), dated as of the date such Lender becomes a
party to this Agreement, payable to the order of such Lender in a principal
amount equal to the maximum amount of its Tranche A Loan Commitment as
originally in effect and otherwise duly completed. The date and amount of each
Tranche A Loan made by each Lender, and all payments made on account of the
principal thereof, shall be recorded by such Lender on its books and, prior to
any transfer of its Tranche A Note, on the schedules attached to its Tranche A
Note or any continuation thereof.
(b) The Tranche B Loans made by each Lender under Section
2.01(a) shall be evidenced by a single promissory note executed by the Lessor,
in substantially the form of EXHIBIT C (individually a "TRANCHE B NOTE" and
collectively the "TRANCHE B NOTES"), dated as of the date such Lender becomes a
party to this Agreement, payable to the order of such Lender in a principal
amount equal to the maximum amount of its Tranche B Loan Commitment as
originally in effect and otherwise duly completed. The date and amount of each
Tranche B Loan made by each Lender, and all payments made on account of the
principal thereof, shall be recorded by such Lender on its books and, prior to
any transfer of its Tranche B Note, on the schedules attached to its Tranche B
Note or any continuation thereof.
(c) Upon receipt of an affidavit of an officer of any Lender
as to the loss, theft, destruction or mutilation of its Note, the Lessor will
issue, in lieu thereof, a replacement Note in the same principal amount thereof
and otherwise of like tenor.
Section 2.06 SEVERAL OBLIGATIONS. The failure of any Lender or
the Lessor to make any Loan or Lessor Investment Payment to be made by it on the
date specified therefor shall not
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relieve any other Lender or the Lessor of its obligation to make its Loan and/or
Lessor Investment Payment on such date, but neither any Lender nor the Lessor
shall be responsible for the failure of any other Lender or the Lessor to make a
Loan or Lessor Investment Payment to be made by such other Lender or the Lessor.
Section 2.07 APPLICABLE FUNDING OFFICES. The Loans and Lessor
Investment Payments made by each Lender and the Lessor shall be made and
maintained at such Lender's or the Lessor's Applicable Funding Office therefor.
Section 2.08 ACQUISITION AND CONSTRUCTION OF FACILITY, ETC.
The Lessor, acting solely by and through the Company as its
Acquisition/Construction Agent under the Agency Agreement and subject to the
availability of funds under this Agreement, shall, on the terms and conditions
set forth in the Transaction Documents, acquire the Facility, cause to be
constructed the improvements thereon, and lease the Facility to the Lessee
pursuant to the Lease. The Company shall enter into and perform its obligations
under the Agency Agreement, the Lease and the other Transaction Documents, all
in accordance with the terms thereof.
Section 2.09 EXTENSION OF NOTES. On any day that is not less
than twelve (12) months and not more than eighteen (18) months prior to the then
current Maturity Date, the Company, as Acquisition/Construction Agent for the
Lessor, may request in writing to the Agent (which shall promptly notify the
Lessor and the Lenders) that the then current Maturity Date be extended for a
period up to three (3) years but in no event beyond the Scheduled Lease
Termination Date (as such date may be extended in accordance with Section 2(b)
of the Lease). Any such extension shall require (i) the unanimous written
consent of each Lender and the Agent, each acting in its sole and absolute
discretion, and (ii) the agreement of the Lessor, acting in its sole and
absolute discretion, to extend the term of the Lease in accordance with Section
2(b) thereof for an equivalent period. In the event such an extension is
requested and the requirements set forth in the immediately preceding sentence
are met, such extension shall be effective upon the execution of documentation
evidencing the same and containing such additional terms as the Company, the
Agent, the Lessor and each Lender, each acting in its sole discretion, may
agree. If any Lender or the Agent shall fail to respond to the Company's written
request for extension within sixty (60) days of receipt, such failure to respond
shall be deemed a denial of such request for extension. The Company, the Agent
and the Lessor shall consult in good faith with a view toward substituting a
replacement Lender, acceptable to the Company and the Agent, for any Lender
denying a request for extension.
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ARTICLE III
Payment of Loans and Lessor Investment Payments;
Payment of Interest, Yield and Other Amounts
Section 3.01 REPAYMENT OF THE NOTES AND REDEMPTION OF
LESSOR INVESTMENT.
(a) The Company, as Acquisition/Construction Agent for the
Lessor, will pay or cause to be paid to the Agent for the account of the Agent,
the Lenders and the Lessor the unpaid principal balance of the Loans and the
Lessor Investment Payments, all accrued interest, Yield (including Accrued
Construction Term Yield), fees and other amounts owing under this Agreement, in
full on the Maturity Date.
(b) If, on or before the Maturity Date, the Company (or any of
its Affiliates) shall exercise the option to purchase the Facility in its
entirety, then the purchase price for the Facility shall be equal to the
Purchase Price and the proceeds of such sale, when received by the Lessor, or
the Agent for the account of the Lessor under the Lease, shall be applied by the
Lessor or the Agent, as applicable, in the order specified in Section 3.05(a).
If, on the Maturity Date, no Cancellation Event shall have occurred and the
Company (or any of its Affiliates) shall elect to pay the Final Rent Payment or
Completion Costs Payment, as applicable, and not to purchase the Facility, and
shall pay the Final Rent Payment or the Completion Costs Payment, as applicable,
all amounts received by the Lessor, or the Agent for the account of the Lessor,
pursuant to or in connection with the Lease, this Agreement or any other
Transaction Document or as proceeds of the disposition of the Facility shall be
applied by the Lessor or the Agent, as applicable, to pay the unpaid principal
balance of the Loans, all accrued interest, (including Accrued Construction Term
Interest), fees and other amounts owing under this Agreement in the order
specified in Section 3.05(b).
Section 3.02 PREPAYMENTS AND REDEMPTIONS. (a) On or after the
fifth anniversary of the Lease Commencement Date, the Company, as
Acquisition/Construction Agent for the Lessor, may, upon at least two (2)
Business Days' notice to the Agent which specifies the proposed date and
aggregate principal amount of the prepayment and/or redemption and the Loans
and/or Lessor Investments to be prepaid or redeemed, and if such notice is given
the Company, as Acquisition/Construction Agent for the Lessor, shall, as
specified in such notice, prepay, and the Interim Rent Payment, when received by
the Lessor, or the Agent for the account of the Lessor, shall be applied to
prepay, the outstanding principal amounts of the Loans comprising the same
Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the amount prepaid, and/or redeem the outstanding
principal amount of the Lessor Investment in whole or ratably in part, together
with accrued
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Yield to the date of such prepayment on the amount prepaid; PROVIDED, HOWEVER,
that (i) each partial prepayment shall be in an aggregate principal amount not
less than $1,000,000 or an integral multiple of $250,000 in excess thereof, and
(ii) in the event of any such prepayment of any Loan or redemption of Lessor
Investment on any day other than the last day of the Interest Period for such
Loan or Yield Period for such Lessor Investment, the Company, as
Acquisition/Construction Agent for the Lessor, shall be obligated to reimburse
the Lenders and/or Lessor (as applicable) in respect thereof pursuant to, and to
the extent required by, Section 5.05. Any prepayment pursuant to this Section
3.02 shall be allocated among the Loans and Lessor Investment to achieve or
maintain the Required Percentage Composition; or if, after giving effect to such
prepayment, it is not possible to achieve or maintain such ratio, then such
prepayment will be allocated among the Loans and/or Lessor Investment in the
manner which most closely approximates, but does not violate, the Required
Percentage Composition. In no event shall any prepayment be allowed which
results in the Required Percentage Composition being violated.
(b) On each date on which the Aggregate Loan Commitments and
the Lessor Investment Commitment are reduced pursuant to Section 2.03, the
Company, as Acquisition/Construction Agent for the Lessor, shall repay or prepay
such principal amount of the outstanding Loans and Lessor Investment (together
with interest and Yield, respectively, accrued thereon), as may be necessary so
that after such payment the aggregate unpaid principal amount of the Loans and
the Lessor Investment does not exceed the Aggregate Loan Commitments and the
Lessor Investment Commitment, respectively, as then reduced.
Section 3.03 INTEREST ON NOTES; YIELD ON LESSOR INVESTMENT;
OVERDUE AMOUNTS.
(a) The Lessor, and the Company, as the
Acquisition/Construction Agent for the Lessor, have requested that interest
accruing during the Construction Term be capitalized, and the Lenders have
agreed thereto. Therefore, all interest accruing on the outstanding principal
amount of the Loans on each day during the Construction Term shall be
capitalized (i) at the end of each Interest Period ending during the
Construction Term and (ii) on the last day of the Construction Term. The
Company, as Acquisition/Construction Agent for the Lessor, will pay or cause to
be paid to the Agent for the account of each Lender interest (and during the
Construction Term, interest will accrue) on the unpaid principal amount of its
Loans for each day during the period commencing on the date of such Loan to but
excluding the date such Loan shall be paid in full, for each Interest Period
relating thereto, at a rate per annum equal to the Adjusted LIBO Rate for such
Loan plus the Applicable Margin for such Loan, but in no event to exceed the
Highest Lawful Rate.
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(b) The Company, as Acquisition/Construction Agent for the
Lessor, will pay or cause to be paid to the Agent for the account of the Lessor
Yield (and during the Construction Term, Yield will accrue) on the unpaid amount
of the Lessor Investment for each day during the period from and including the
date of the initial Lessor Investment Payment to but excluding the date such
Lessor Investment shall be repaid or redeemed in full, for each Yield Period
relating thereto, at a rate per annum equal to the Adjusted LIBO Rate for such
Yield Period plus the Applicable Margin for such Lessor Investment, but in no
event to exceed the Highest Lawful Rate.
(c) All Yield accruing on the outstanding amount of the Lessor
Investment on each day during the Construction Term shall be capitalized (i) at
the end of each Yield Period ending during the Construction Term and (ii) on the
last day of the Construction Term (the aggregate of the capitalized amount of
Yield accrued during the Construction Term as aforesaid, "Accrued Construction
Term Yield"). The Company, as Acquisition/Construction Agent for the Lessor,
will pay or cause to be paid for the account of the Lessor, in equal quarterly
installments on the last day of each Rental Period that ends during the first
year of the Basic Term, the unpaid balance of Accrued Construction Term Yield
from time to time. All Yield accruing under this Section 3.03(c) shall accrue
and be payable at a rate per annum equal to the Adjusted LIBO Rate for the
applicable Yield Period plus the Applicable Margin, but in no event to exceed
the Highest Lawful Rate.
(d) Notwithstanding the foregoing, the Company, as
Acquisition/Construction Agent for the Lessor, shall pay or cause to be paid to
the Agent for the account of each Lender or the Lessor interest or Yield, as
applicable, at the applicable Default Rate on any principal of any Loan or the
amount of Lessor Investment, interest, Yield, Accrued Construction Term Yield,
fees or other amounts owing by the Lessor under this Agreement or any other
Transaction Document which shall not be paid in full when due (whether at stated
maturity, by acceleration or otherwise), for the period commencing on the due
date thereof until the same is paid in full, in each case to the maximum extent
permitted by applicable law. The Company shall pay to the Lessor, or to the
Agent for the account of each Lender, as applicable, interest at the Default
Rate on any amounts owing by the Company under this Agreement or any other
Transaction Document which shall not be paid in full when due (whether at stated
due date, on acceleration or otherwise), for the period commencing on the due
date thereof until the same is paid in full, in each case to the maximum extent
permitted by applicable law.
(e) Accrued interest on each Loan together with accrued Yield
on the Lessor Investment (other than Accrued Construction Term Yield) shall be
payable (or, if applicable, capitalized pursuant to Section 3.03(a) or (c)) on
the last day of each Interest Period or Yield period, as applicable, therefor
and on the Maturity Date. Accrued Construction Term Yield shall
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be payable in equal quarterly installments on the last day of each Rental Period
that ends during the first year of the Basic Term in accordance with Section
3.03(c). Interest or Yield, as applicable, payable at the Default Rate shall be
payable from time to time on demand.
(f) Promptly after the determination of the rate of any
interest or Yield provided for herein or any change therein, the Agent shall
notify the Lenders and the Lessor to which such interest or Yield is payable and
the Company of such determination or change.
Section 3.04 PAYMENTS BY LESSOR. All moneys received by the
Lessor, or by the Agent for the account of the Lessor, pursuant to the Lease
including, but not limited to, payments of Basic Rent, Supplemental Rent, the
Termination Value or the Final Rent Payment or the Completion Costs Payment, as
applicable, except for amounts allocable to fees and expenses of the Lessor
pursuant to the Transaction Documents and amounts comprising Supplemental Rent
payable to third Persons, if any, shall be paid to the Lessor, the Agent and the
Lenders, as the case may be, in accordance with, and to pay amounts owing
pursuant to, the terms of this Agreement, including without limitation Section
4.01 and, if applicable, Section 3.05.
Section 3.05 APPLICATIONS OF PAYMENTS AND PROCEEDS.
(a) Upon the occurrence of a Cancellation Event or a
Termination Event (and the Company elects pursuant to Section 15(a) or (b) of
the Lease to exercise its option to purchase the Facility for the Purchase Price
or elects pursuant to Section 15(b)(ii)(B) of the Lease to pay the Termination
Value), or if the Company otherwise elects to acquire the Facility for the
Purchase Price, the Purchase Price or the Termination Value, as the case may be,
and all other monies received by the Lessor or the Agent pursuant to or in
connection with the Lease, this Agreement or any other Transaction Document,
including, without limitation, the proceeds of any insurance or condemnation
awards received as a result of any Casualty Occurrence or Loss Event, shall be
applied to prepay the Loans and redeem the Lessor Investment in the following
order:
(1) FIRST, to pay or reimburse all costs and expenses,
including, without limitation, those in connection with Indemnified
Risks, increased costs, Supplemental Rent or Taxes, then due and owing
to the Agent, the Lessor and the Lenders under the other Transaction
Documents, pro rata to each such Person (collectively, the "OTHER
TRANSACTION EXPENSES");
(2) SECOND, to pay all accrued, unpaid interest and fees on
the Notes, pro rata, to the Lenders, and all accrued, unpaid Yield,
including without limitation, all Accrued Construction Term Yield, to
the Lessor;
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(3) THIRD, to pay the outstanding principal balance of the
Loans, pro rata, to the Lenders;
(4) FOURTH, to pay the outstanding principal balance of the
Lessor Investment, to the Lessor; and
(5) FIFTH, to pay all other amounts owing by the Company under
the Transaction Documents.
Any monies remaining after payment in full of the foregoing amounts and all
other amounts owing by the Company from time to time under the Transaction
Documents shall be paid to the Lessor for distribution to the Company.
(b) If (i) a Termination Event has occurred, (ii) a
Cancellation Event does not exist and (iii) the Company has not elected to
purchase the Facility for the Purchase Price and has paid the Final Rent Payment
or Completion Costs Payment, as applicable, pursuant to Section 15(a) of the
Lease, then the Final Rent Payment or Completion Costs Payment, as applicable,
shall be applied as follows:
(1) FIRST, to pay or reimburse all Other Transaction Expenses;
(2) SECOND, to pay all accrued, unpaid interest on the Loans,
pro rata, to the Lenders;
(3) THIRD, to pay all accrued, unpaid fees, pro rata, to the
Lenders and the Lessor;
(4) FOURTH, to pay the outstanding principal balance of the
Tranche A Loans, pro rata, to the Tranche A Lenders and (without
duplication), to pay Completion Costs, if applicable; and
(5) FIFTH, in the case of a Final Rent Payment, to pay all
accrued, unpaid Yield, including without limitation, all Accrued
Construction Term Yield, to the Lessor.
In such circumstances, all other monies received by the Lessor or the Agent
pursuant to or in connection with the Lease, this Agreement or any other
Transaction Document or as proceeds of disposition of the Facility shall be
applied as follows:
(1) FIRST, to pay the outstanding principal balance of the
Tranche B Notes, pro rata, to the Tranche B Lenders;
(2) SECOND, to pay the outstanding balance of the Lessor
Investments to the Lessor;
(3) THIRD, to the extent not prohibited by law, to pay any
unpaid amount specified in this paragraph (b) above, in the order
specified in paragraph (b), or to whomever else
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may be legally entitled thereto, as their respective
interests may appear and
(4) FOURTH, to reimburse the Company for Support Expenses
incurred by it under the Agency Agreement.
Any monies remaining after payment in full of the foregoing amounts and all
other amounts owing by the Company from time to time under the Transaction
Documents shall be paid to the Lessor for distribution to the Company.
(c) If (i) the Company is required to purchase the Facility or has
elected to exercise its option to purchase the Facility, and has failed to pay
the Purchase Price, or (ii) the circumstances described in (b)(i) and (ii) above
exist, but the Company has either failed to elect to exercise its option to
purchase the Facility and failed to make the Final Rent Payment or Completion
Costs Payment, as applicable, and/or (iii) the Company has failed to furnish to
the Agent a satisfactory update of the Environmental Assessment, then the Lessor
will be entitled to exercise eviction and/or foreclosure remedies and all moneys
received by the Agent or the Lessor from the disposition of the Facility or
other foreclosure action, net of reasonable enforcement costs, will be applied
(i) FIRST, as provided in paragraph (b) above, and (ii) SECOND, any remaining
net proceeds shall be applied in accordance with paragraph (a) above in the same
manner as if the Final Rent Payment had been made, and in such circumstances,
the Company shall remain liable for any deficiency in such remaining net
proceeds to pay such amounts described in paragraph (a).
ARTICLE IV
Payments; Computations; Etc.
Section 4.01 PAYMENTS. The Company, as
Acquisition/Construction Agent for the Lessor (or, in the case of the principal
amount of the Tranche B Loans and the Lessor Investment Payments (in the
circumstances described in Section 3.05(b) and if the Company shall have paid
the Final Rent Payment or the Completion Costs Payment, as applicable), the
Lessor), shall make each payment under this Agreement, the Notes or the Lessor
Investment, whether the amount so paid is owing to any or all of the Lessor, the
Lenders or the Agent, not later than 12:00 noon, prevailing Eastern time,
without setoff, counterclaim, or any other deduction whatsoever, on the day when
due in Dollars to the Agent at its address at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location designated by notice to the
Company from the Agent, in same day funds, except as otherwise expressly
provided in Section 2.01(d)(i). The Agent will promptly thereafter cause to be
distributed to the Lenders and the Lessor like funds relating to the payment of
principal, interest or Yield ratably (other than amounts payable pursuant to
Section 4.06 or 11.03 or Article V) according to the respective
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amounts of such principal, interest or Yield then due and owing to the Lenders
and the Lessor, and like funds relating to the payment of any other amount
payable to any Lender or the Lessor to such Lender or the Lessor, in each case
to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 11.06(d), from and after
the effective date specified in such Assignment and Acceptance, the Agent shall
make all payments under this Agreement, the Notes or the Lessor Investment in
respect of the interest assigned thereby to the assignee thereunder, and the
parties to such Assignment and Acceptance shall make all appropriate adjustments
in such payments for periods prior to such effective date directly between
themselves. Any payments and prepayments received hereunder, other than after
the occurrence and during the continuation of a Cancellation Event or
Termination Event, shall be applied in accordance with the purpose for which
such payment or prepayment is made. All payments by the Company under any
Transaction Document shall be made in the manner specified in this Article IV.
Section 4.02 PRO RATA TREATMENT. Except to the extent
otherwise provided herein: (a) each Tranche A Loan and Tranche B Loan from the
Lenders under Section 2.01 shall be made from the Lenders, and each termination
or reduction of the Aggregate Loan Commitments under Section 2.03 shall be
applied to the Tranche A Loan Commitment and Tranche B Loan Commitment of each
Lender, pro rata according to the amount of the Lenders' respective Tranche A
Loan Commitments and Tranche B Loan Commitments; (b) each payment of Tranche A
Loans and of Tranche B Loans, respectively, by or for the account of the Lessor
shall be made to the account of the Tranche A Lenders and Tranche B Lenders,
respectively, pro rata in accordance with the respective unpaid principal amount
of the Tranche A Notes and Tranche B Notes held by such Lenders; (c) each
payment of interest in respect of Tranche A Loans and of Tranche B Loans,
respectively, by or for the account of the Lessor shall be made to the account
of the Tranche A Lenders and Tranche B Lenders, respectively, pro rata in
accordance with the amounts of interest due and payable to the Tranche A Lenders
and Tranche B Lenders, respectively; and (d) each Borrowing shall be allocated
pro rata among the Tranche A Loans and the Tranche B Loans so that after giving
effect thereto the Required Percentage Composition is satisfied.
Section 4.03 COMPUTATIONS. All computations of interest and
Yield shall be made by the Agent, and computations of interest and Yield
pursuant to Section 5.01 shall be made by each Lender with respect to its own
Loans or the Lessor Investment, on the basis of a year of 360 days (or, in the
case of computations based on the Prime Rate, 365/366 days), in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or Yield is payable. Whenever
any payment hereunder or under the Notes or the Lessor Investment shall be
stated to be due on a day other than a Business Day, such payment shall be
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made on the next succeeding Business Day, and such extension of time in such
case shall be included in the computation of payment of interest or Yield;
PROVIDED, HOWEVER, that if such extension would cause payment of interest on or
principal of any Loan or of Yield on or amount of any Lessor Investment to be
made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
Section 4.04 NON-RECEIPT OF FUNDS BY THE AGENT. Unless the
Agent shall have received notice from the Lessor or the Company, as
Acquisition/Construction Agent for the Lessor, prior to the date on which any
payment is due to the Lenders hereunder that the Company will not make such
payment in full, the Agent may assume that the Lessor or the Company, as
Acquisition/Construction Agent for the Lessor, has made such payment in full to
the Agent on such date and the Agent may, in reliance upon such assumption, but
shall not be obligated to, cause to be distributed to each Lender on such due
date an amount equal to the amount then due such Lender. If and to the extent
the Lessor or the Company, as Acquisition/Construction Agent for the Lessor,
shall not have so made such payment in full to the Agent, each Lender shall
repay to the Agent forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Agent, at a rate equal to (i) until the Business Day after the Business Day on
which such demand is made, the Federal Funds Rate for such day and (ii)
thereafter 50 basis points above the Federal Funds Rate for such day.
Section 4.05 SHARING OF PAYMENTS. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Loans made by it (other than
pursuant to Section 4.06 or 11.03 or Article V) in excess of its ratable share
of payments then due and owing to it in accordance with the payment orders
specified in Section 3.05 or Section 4.02 on account of the Loans obtained by
all the Lenders, such Lender shall forthwith purchase from the other Lenders
participations in such Loans made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them (or, if
necessary, to cause such purchasing Lender to assume the payment priority
specified in Section 3.05), PROVIDED, HOWEVER, that if all or any portion of
such excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and each Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (a) the amount of such Lender's required repayment to (b) 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.
The Company and the Lessor agree that any Lender so purchasing a participation
from another Lender pursuant to this Section may, to the fullest extent
permitted by law, exercise all its rights
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of payment (including any right of set-off) with respect to such participation
as fully as if such Lender were the direct creditor of Lessor and the Company in
the amount of such participation.
Section 4.06 TAXES.
(a) Any and all payments of principal, interest, Lessor
Investment, Yield and all other amounts to be paid by the Company, for its own
account or as Acquisition/Construction Agent for the Lessor hereunder or under
the Notes or the Lessor Investment or any other Transaction Document to each
Indemnified Party shall be made, in accordance with Section 4.01, without
deduction for, and free from, any tax, imposts, levies, duties, deductions, or
withholdings of any nature now or at any time hereafter imposed by any
Governmental Authority or by any taxing authority thereof or therein excluding
in the case of each Lender and the Lessor, taxes imposed on or measured by the
net income of any Lender or the Lessor, and franchise taxes imposed on such
Lender or the Lessor, by the jurisdiction under the laws of which such Lender or
the Lessor is organized or any political subdivision thereof, and taxes imposed
on or measured by such Lender or the Lessor's income, and franchise taxes
imposed on such Lender or the Lessor, by the jurisdiction of such Lender's or
the Lessor's Applicable Funding Office or any political subdivision thereof (all
such non-excluded taxes, imposts, levies, duties, deductions or withholdings of
any nature being "TAXES"). In the event that the Company, as
Acquisition/Construction Agent for the Lessor, is required by applicable law to
make any such withholding or deduction of Taxes with respect to any Loan or
Lessor Investment Payment or other amount, the Company, as
Acquisition/Construction Agent for the Lessor, shall pay such deduction or
withholding to the applicable taxing authority, shall promptly furnish to any
Lender or the Lessor or (subject to Section 11.06(j)) other Person in respect of
which such deduction or withholding is made all receipts and other documents
evidencing such payment and shall pay to such Lender or the Lessor or (subject
to Section 11.06(j)) other Person additional amounts as may be necessary in
order that the amount received by such Lender or the Lessor or (subject to
Section 11.06(j)) other Person after the required deduction or withholding shall
equal the amount such Lender or the Lessor would have received had no such
deduction or withholding been made.
(b) Each Lender that is not chartered and organized under the
laws of the United States of America or a state thereof (each a "NON-U.S.
DOMESTIC LENDER ") agrees, as soon as practicable after receipt by it of a
request by the Lessor, or the Company, as Acquisition/Construction Agent for the
Lessor, to do so, to file all appropriate forms and take other appropriate
action to obtain a certificate or other appropriate document from the
appropriate governmental authority in the jurisdiction imposing the relevant
taxes, establishing that it is entitled to receive payments of principal,
interest under or in respect of this Agreement and the Notes without deduction
and free from
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withholding of any Taxes imposed by such jurisdiction; PROVIDED, THAT, if it is
unable, by virtue of any applicable law, rule or regulation, to establish such
exemption or to file such forms and, in any event, during such period of time as
such request for exemption is pending, the Company, as Acquisition/Construction
Agent for the Lessor, shall nonetheless remain obligated under the terms of the
immediately preceding paragraph. Without limiting the foregoing, each Non-U.S.
Domestic Lender agrees to deliver to the Lessor and the Company, as Acquisition/
Construction Agent for the Lessor, promptly upon any request therefor from time
to time, such forms, documents and other information as may be required by
applicable law from time to time to establish that payment to such Non-U.S.
Domestic Lender hereunder or under the Notes or any Operative Guaranty are
exempt from Taxes. Without limiting the generality of the foregoing, each
Non-U.S. Domestic Lender agrees, on the date of its execution of this Agreement
(or, in the case of an Eligible Assignee, on the date on which such Eligible
Assignee becomes a party to this Agreement), to deliver in duplicate to the
Lessor, or the Company, as Acquisition/Construction Agent for the Lessor,
accurate and duly completed and executed Internal Revenue Service Form 4224 or
1001 (as applicable), together with Internal Revenue Service Forms W-8 or W-9,
as appropriate, establishing that such Non-U.S. Domestic Lender is entitled to a
complete exemption from all Taxes imposed by the federal government of the
United States by way of withholding, including without limitation, all backup
withholding ("U.S. WITHHOLDING TAXES"). Thereafter, from time to time (i) upon
any change by a Non-U.S. Domestic Lender of its Applicable Funding Office, (ii)
before or promptly after any event occurs (including, without limitation, the
passing of time) requiring a change in or update of the most recent Form 4224 or
1001 previously delivered by such Lender, or (iii) upon the reasonable request
of the Lessor, or the Company, as Acquisition/Construction Agent for the Lessor,
such Non-U.S. Domestic Lender shall deliver in duplicate to the Lessor and the
Company, as Acquisition/Construction Agent for the Lessor, accurate and duly
completed and executed Form 4224 or 1001 (as applicable) (together with Forms
W-8 or W-9, as aforesaid) in replacement of the forms previously delivered by
such Non-U.S. Domestic Lender, establishing that such Non-U.S. Domestic Lender
is entitled to an exemption in whole or in part from all U.S. Withholding Taxes
except to the extent that a change in law has rendered all such forms
inapplicable to such Non-U.S. Domestic Lender.
(c) If the Internal Revenue Service or any other taxation
authority in the United States or in any other jurisdiction successfully asserts
a claim that such Non-U.S. Domestic Lender, the Lessor or the Company, as
Acquisition/Construction Agent for the Lessor, did not properly withhold tax
from amounts paid to or for the account of any Non- U.S. Domestic Lender or its
participant (because the appropriate form was not properly executed, or because
such Non-U.S. Domestic Lender failed to notify the Lessor or the Company, as
Acquisition/Construction Agent for the Lessor, of a change in
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circumstances which rendered the exemption from (or reduction in) U.S.
Withholding Taxes ineffective), such Lender shall indemnify the Lessor, or the
Company, as Acquisition/Construction Agent for the Lessor, as applicable, fully
for all amounts paid, directly or indirectly, by the Lessor or the Company, as
Acquisition/Construction Agent for the Lessor, as applicable, as tax or
otherwise, including, without limitation, penalties and interest.
(d) In the event any Lender or the Lessor receives a refund
from the Governmental Authority to which such Taxes were paid of any Taxes paid
by the Company, as Acquisition/Construction Agent for the Lessor, pursuant to
this Section 4.06, it will pay to the Company, as Acquisition/Construction Agent
for the Lessor, the amount of such refund promptly upon receipt thereof;
PROVIDED, HOWEVER, if at any time thereafter it is required to return such
refund, the Company, as Acquisition/Construction Agent for the Lessor, shall
promptly repay to it the amount of such refund.
(e) Nothing in this Section shall require any Lender or the
Lessor to disclose any information about its tax affairs or interfere with,
limit or abridge the right of any Lender or the Lessor to arrange its tax
affairs in any manner in which it desires, subject to Section 11.16(b).
(f) Without prejudice to the survival of any other agreement
of the Lessor and the Company hereunder, the agreements and obligations of the
Lessor, the Company, and the Lenders contained in this Section 4.06 shall be
applicable with respect to any participant, Eligible Assignee or other
transferee, and any calculations required by such provisions (i) shall be made
based upon the circumstances of such participant, Eligible Assignee or other
transferee (subject to Section 11.06(j)), and (ii) constitute a continuing
agreement and shall survive for a period of three (3) years after the
termination of this Agreement and the payment in full or cancellation of the
Commitments, the Notes.
ARTICLE V
Yield Protection and Illegality
Section 5.01 BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR
UNFAIR. The Agent shall give prompt notice to the Lessor, the Company and the
Lenders of the applicable interest rate or Yield determined by the Agent for
purposes of Sections 3.03(a) and (b). If on or prior to the first day of any
Interest Period:
(a) the Agent determines that deposits in Dollars (in the
applicable amounts), are not being offered in the relevant market for such
Interest Period or Yield Period, or
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(b) the Majority Lenders, or the Lessor, as applicable,
determine and give notice to the Agent that the rates or yield determined on the
basis of the LIBO Rate for any Interest Period or Yield Period for Loans or
Lessor Investment Payments will not adequately and fairly reflect the cost to
either the Majority Lenders or the Lessor of making, funding or maintaining
their respective Loans or Lessor Investment Payments for such Interest Period or
Yield Period, the Agent shall forthwith so notify the Lessor, the Company and
the Lenders, whereupon,
(i) in the case of such notice from the Majority Lenders, each
such Loan, or in the case of such notice from the Lessor, the Lessor
Investment Payments, will automatically, on the last day of the then
existing Interest Period or Yield Period, as applicable, accrue
interest or Yield, as applicable, at a rate based upon the Base Rate
plus the Applicable Margin.
(ii) the obligation of the Majority Lenders or the Lessor, as
applicable, to make Loans, or to maintain Loans or Lessor Investment
Payments or Lessor Investment, as applicable, at the Adjusted LIBO Rate
shall be suspended until the Agent shall notify the Lessor, the Company
and the Lenders that the circumstances causing such suspension no
longer exist, and
(iii) unless the Lessor, or the Company, as
Acquisition/Construction Agent for the Lessor, notifies the Agent at
least two (2) Business Days before the date of any Borrowing or
requested Lessor Investment Payment for which Advance Notice has
previously been given that it elects not to effect a Borrowing, or
require such Lessor Investment Payment, as applicable, on such date,
such Borrowing or requested Lessor Investment Payment shall instead be
made at a rate of interest or Yield, as applicable, based upon the Base
Rate plus the Applicable Margin. Upon the written request of the Lessor
or the Company, as Acquisition/Construction Agent for the Lessor, the
Agent shall negotiate with the Company, as Acquisition/Construction
Agent for the Lessor, and the relevant Lender or the Lessor for a
reasonable period of time, as determined in the Agent's discretion, to
develop a substitute interest rate basis hereunder; PROVIDED, however,
(x) the Agent, the Lenders, the Lessor and the Company make no
representation, warranty or covenant that any such agreement will be
made, and (y) any relevant Loans or Lessor Investment Payments shall
continue to have interest or Yield accrue thereon at the Base Rate
during the continuance of any such negotiations and thereafter should
no alternate interest rate be agreed to by the necessary parties.
Section 5.02 ILLEGALITY. If, after the date hereof, the
adoption of any applicable law, rule or regulation, or any change therein, or
any change in the interpretation or
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administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof (any such
agency being referred to as a "BANKING AUTHORITY" and any such event being
referred to as a "CHANGE OF LAW"), or compliance by any Lender or the Lessor (or
its Applicable Funding Office) with any request or directive (whether or not
having the force of law) of any Banking Authority shall make it unlawful or
impossible for any Lender or the Lessor (or its Applicable Funding Office) to
make, maintain or fund its Loans or Lessor Investment and such Lender or the
Lessor shall so notify the Agent, the Agent shall forthwith give notice thereof
to the other Lenders and to the Lessor and the Company, whereupon until such
Lender or the Lessor notifies the Agent, the other Lenders, the Lessor and the
Company that the circumstances giving rise to such suspension no longer exist,
the obligation of such Lender or the Lessor to make or maintain Loans or Lessor
Investment based upon the Adjusted LIBO Rate shall be suspended. Before giving
any notice to the Agent pursuant to this Section, such Lender or the Lessor
shall designate a different Applicable Funding Office if such designation will
avoid the need for giving such notice and will not, in the judgment of such
Lender or the Lessor, be otherwise materially disadvantageous to such Lender or
the Lessor. If any Lender shall determine that it may not lawfully continue to
maintain and fund any of its outstanding Loans to maturity and shall so specify
in such notice, the Lessor or the Company, as Acquisition/Construction Agent for
the Lessor, shall immediately prepay in full the then outstanding principal
amount of each Loan of such Lender, together with accrued interest thereon.
Concurrently with prepaying each such Loan, the Company, as
Acquisition/Construction Agent for the Lessor shall borrow as a Loan, PROVIDED
that no Default or Event of Default shall then exist, but without any
requirement for the satisfaction of any of the other conditions precedent set
forth herein, in an equal principal amount from such Lender at a rate based upon
the Base Rate, and each Lender agrees to make such a Loan on the foregoing
terms. If the Lessor shall determine that it may not lawfully continue to
maintain and fund its Lessor Investment to the end of the Lease Term based on
the Adjusted LIBO Rate and shall so specify in such notice, the Company, as
Acquisition/Construction Agent for the Lessor, shall immediately redeem in full
the then outstanding amount of the Lessor Investment of the Lessor (together
with accrued Yield thereon, if such redemption occurs after the end of the
Construction Term). Concurrently with, and as a condition to, redemption of such
Lessor Investment, the Lessor shall make a new Lessor Investment Payment in the
same amount as the amount so redeemed, without any requirement for the
satisfaction of any of the conditions precedent set forth herein, and Yield
thereon shall be computed based upon the Base Rate. At any time within ninety
(90) days after the giving of a notice by any Lender pursuant to this Section
5.02, so long as no Event of Default shall be in existence, the Company, as
Acquisition/Construction Agent for the Lessor, may require by written notice to
that Lender that (a) it assign its pro rata share of the Commitment to another
Lender or to a bank or other financial institution selected by the Company,
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as Acquisition/Construction Agent for the Lessor, and reasonably acceptable to
the Agent, which is willing to accept such assignment or (b) it surrender its
pro rata share of the Commitment and terminate its rights and obligations as a
Lender hereunder, concurrently with a reduction by the Company, as
Acquisition/Construction Agent of the Lessor, of the Commitment by an amount
equal to the pro rata share of the Commitment held by that Lender.
Section 5.03 INCREASED COST AND REDUCED RETURN. (a) If after
the date hereof, a Change of Law or compliance by any Lender or the Lessor (or
its Applicable Funding Office) with any request or directive (whether or not
having the force of law) of any Banking Authority:
(i) shall subject any Lender or the Lessor (or its Applicable
Funding Office) to any tax, duty or other charge on its Loans or Lessor
Investment Payments, its Notes or Lessor Investment, or its obligation
to make Loans or Lessor Investment Payments or maintain its Loans or
Lessor Investment or shall change the basis of taxation of payments to
any Lender or the Lessor (or its Applicable Funding Office) of the
principal amount of or interest on its Loans, the amount of or Yield on
its Lessor Investment Payments or Lessor Investment or any other
amounts due under this Agreement or any other Transaction Document in
respect of its Loans or its Lessor Investment (except for changes in
the rate of tax on the overall net income or gross receipts or
franchise tax of such Lender or the Lessor or its Applicable Funding
Office imposed by the jurisdiction in which such Lender's or the
Lessor's principal executive office or Applicable Funding Office is
located); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System (but excluding any such requirement included in an
applicable Euro-Dollar Reserve Percentage) against assets of, deposits
with or for the account of, or credit extended by, any Lender or the
Lessor (or its Applicable Funding Office); or
(iii) shall impose on any Lender or the Lessor (or its
Applicable Funding Office) or on the United States market or the London
interbank market any other condition affecting its Loans, Notes, Lessor
Investment Payments, Lessor Investment, or obligation to make or
maintain Loans or Lessor Investment Payments or its Lessor Investment;
and the result of any of the foregoing is to increase the cost to such Lender or
the Lessor (or its Applicable Funding Office) of making or maintaining any Loan
or Lessor Investment Payment or Lessor Investment, or to reduce the amount of
any sum received or receivable by such Lender or the Lessor (or its Applicable
Funding Office) under this Agreement or under its relevant Notes
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or Lessor Investment or any other Transaction Document with respect thereto, by
an amount deemed by such Lender or the Lessor to be material, then, within
fifteen (15) days after demand by such Lender or the Lessor (with a copy to the
Agent), the Company, as Acquisition/Construction Agent for the Lessor, shall pay
to such Lender or the Lessor such additional amount or amounts as will
compensate such Lender or the Lessor for such increased cost or reduction;
PROVIDED, HOWEVER, that no such amount may be claimed by any Lender or the
Lessor which is attributable to periods prior to the date which is sixty (60)
days preceding the date on which the officer of the Lender or the Lessor having
primary responsibility for asset liability management shall have obtained actual
knowledge of such Change of Law or request or directive and written notice
thereof shall have been given to the Company. At any time within ninety (90)
days after payment by the Company, as Acquisition/Construction Agent for the
Lessor, of any material amount to any Lender pursuant to paragraph (a) or (b) of
this Section, so long as no Event of Default shall be in existence, the Company,
as Acquisition/ Construction Agent for the Lessor, may require by written notice
to that Lender that (i) it assign its pro rata share of the Commitment to
another Lender or to a bank or other financial institution selected by the
Company, as Acquisition/Construction Agent for the Lessor, and reasonably
acceptable to the Agent which is willing to accept such assignment or (ii) it
surrender its pro rata share of the Commitment and terminate its rights and
obligations as a Lender hereunder, concurrently with a reduction by the Company,
as Acquisition/Construction Agent of the Lessor, of the Commitment by an amount
equal to the pro rata share of the Commitment held by that Lender.
(b) If any Lender or the Lessor shall have determined that
after the date hereof the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or official administration thereof, or compliance by any Lender
or the Lessor (or its Applicable Funding Office) or any Person controlling such
Lender or the Lessor with any request or directive regarding capital adequacy
(whether or not having the force of law) of any Banking Authority, has or would
have the effect of reducing the rate of return on such Lender's or the Lessor's
or such controlling Person's capital as a consequence of its obligations
hereunder to a level below that which such Lender or the Lessor or such
controlling Person could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or the Lessor's or such
controlling Person's policies with respect to capital adequacy) by an amount
deemed by such Lender or the Lessor or such controlling Person to be material,
then from time to time, within 15 days after demand by such Lender or the Lessor
or such controlling Person, the Company, as Acquisition/Construction Agent for
the Lessor, shall pay to such Lender or the Lessor such additional amount or
amounts as will compensate such Lender or the Lessor or such controlling Person
for such reduction, subject to the proviso at the end of Section 5.03(a).
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(c) Each Lender or the Lessor will promptly notify the Lessor,
the Company and the Agent of any event of which its officer having primary
responsibility for asset liability management has knowledge, which occurs or is
expected to occur after the date hereof, which will entitle such Lender or the
Lessor to compensation pursuant to and subject to the limitations contained in
this Section and will designate a different Applicable Funding Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the reasonable judgment of such Lender or the Lessor, be
otherwise materially disadvantageous to such Lender or the Lessor. A certificate
of any Lender or the Lessor claiming compensation under this Section and setting
forth in reasonable detail the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. In determining
such amount, such Lender or the Lessor may use any reasonable averaging and
attribution methods. Nothing in this Section shall require any Lender or the
Lessor to disclose any information about its tax affairs or interfere with,
limit or abridge the right of any Lender or the Lessor to arrange its tax
affairs in any manner it desires, subject to Section 11.16(b).
(d) The provisions of this Section 5.03 shall (i) be
applicable with respect to any participant, Eligible Assignee or other
transferee, and any calculations required by such provisions shall be made based
upon the circumstances of such participant, Eligible Assignee or other
transferee (subject to Section 11.06(j)) and (ii) constitute a continuing
agreement and shall survive for a period of one year after the termination of
this Agreement and the payment or redemption in full or cancellation of the
Notes and the Lessor Investment.
Section 5.04 BASE RATE SUBSTITUTED FOR ADJUSTED LIBO RATE. If
(i) the obligation of any Lender or the Lessor to make or maintain Loans or
Lessor Investment Payments or its Lessor Investment has been suspended pursuant
to Section 5.02 or (ii) any Lender or the Lessor has demanded compensation under
Section 5.03, and the Company, as Acquisition/Construction Agent for the Lessor,
shall, by at least five (5) Business Days' prior notice to such Lender or the
Lessor through the Agent, have elected that the provisions of this Section shall
apply to such Lender or the Lessor, then, unless and until such Lender or the
Lessor notifies the Company, as Acquisition/Construction Agent for the Lessor,
that the circumstances giving rise to such suspension or demand for compensation
no longer apply:
(a) all Loans or Lessor Investment Payments that would
otherwise be made or maintained by such Lender or the Lessor based upon
the Adjusted LIBO Rate shall be made or, from the beginning of the next
Interest Period or Yield Period therefor, as applicable, be maintained
instead based upon the Base Rate, plus the Applicable Margin (in all
cases interest, Yield and principal or other amounts payable on such
Loans or Lessor Investment Payments shall be payable
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contemporaneously with the related or comparable amount
payable in respect of the other Lenders and the Lessor), and
(b) after each of its Loans or Lessor Investment Payments made
or maintained based upon the Adjusted LIBO Rate has been repaid, all
payments of principal that would otherwise be applied to repay such
Loans or Lessor Investment Payments, as applicable, shall be applied to
repay its Loans or Lessor Investment Payments made or maintained based
upon the Base Rate instead.
Section 5.05 COMPENSATION. Upon the request of any Lender or
the Lessor (delivered to the Lessor, the Company and the Agent), the Company, as
Acquisition/Construction Agent for the Lessor, shall pay to such Lender or the
Lessor such amount or amounts as shall compensate such Lender or the Lessor for
any loss, cost or expense incurred by such Lender or the Lessor as a result of:
(a) any payment or prepayment (pursuant to Section 5.02 or
otherwise) of a Loan or Lessor Investment Payment or any Lessor Investment on a
date other than the last day of the Interest Period or Yield Period, as
applicable, for such Loan, Lessor Investment Payment or Lessor Investment; or
(b) any failure by the Company, as Acquisition/ Construction
Agent for the Lessor, to borrow or take down (other than due to a refusal by the
Agent or any of the Lenders or the Lessor to fund under Section 2.02(a)
notwithstanding satisfaction of the conditions set forth in Article VI) a Loan
or Lessor Investment Payment on the date specified therefor in the applicable
Advance Notice delivered pursuant to Section 2.02(a), including any such failure
resulting from the revocation of such Advance Notice.
Section 5.06 PAYMENTS AND COMPUTATIONS. Each determination by
the Agent (or, in the case of Section 5.01, 5.02, 5.03, 5.04 or 5.05 by each
Lender with respect to its own Loans, or the Lessor with respect to the Lessor
Investment) of an interest rate or Yield, or an increased cost or increased
capital or of illegality hereunder shall be conclusive and binding for all
purposes (absent manifest error) if made reasonably and in good faith, subject
to Section 5.03(c).
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ARTICLE VI
Conditions Precedent
Section 6.01 CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS
AGREEMENT. This Agreement shall become effective when (i) it shall have been
executed by the Lessor, the Company and the Agent, (ii) the Agent and the
Company, as Acquisition/ Construction Agent for the Lessor, either shall have
been notified by each Lender that it has executed this Agreement or shall have
received a counterpart of this Agreement executed by such Lender, and (iii) the
Agent shall, on or before January 9, 1998 have received the following, each
being in form and substance satisfactory to the Agent and (except for the Notes)
in sufficient copies for each Lender:
(a) CERTIFICATES OF COMPANY AND GUARANTORS. Certificates of
the Secretary or Assistant Secretary of each of the Company and the Guarantors
setting forth (i) resolutions of its board of directors authorizing the
execution, delivery and performance of the obligations contained in this
Agreement, with respect to the Company, and the other Transaction Documents to
which it is a party, with respect to the Company and the Guarantors, (ii) the
officers of the Company and the Guarantors specified in such Secretary's
Certificates that are authorized to sign this Agreement and the other
Transaction Documents to which the Company or the Guarantors is a party and,
until replaced by another officer or officers duly authorized for that purpose,
to act as its respective representative for the purposes of signing documents
and giving notices and other communications in connection with this Agreement
and the Transaction Documents to which it is a party and (iii) true and correct
copies of the articles or certificate of incorporation and the bylaws of each of
the Company and the Guarantors. The parties to this Agreement may conclusively
rely on such certificate until the Agent (who shall promptly notify all other
parties) receives notice in writing from the Company or the Guarantors, as the
case may be, to the contrary.
(b) OPINION OF COMPANY'S AND GUARANTORS' COUNSEL. A favorable
opinion or opinions of Steel ▇▇▇▇▇▇ & ▇▇▇▇▇, LLP special counsel to the Company
and the Guarantors, in substantially the form of EXHIBIT F, and as to such other
matters as any Lender, through the Agent, may reasonably request.
(c) EXECUTION OF NOTES. The Notes payable to the Lenders duly
completed and executed.
(d) EXECUTION AND DELIVERY OF TRANSACTION DOCUMENTS. Each of
the other Transaction Documents, including each of the Operative Guaranties,
duly completed and executed in sufficient number of counterparts for recording
where appropriate.
(e) RECORDATION OF SECURITY INSTRUMENTS. The Security
Instruments (to the extent filing thereof is required for
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perfection or otherwise under applicable law) and all related financing
statements and other requisite filing documents shall have been duly filed in
the appropriate offices and, to the fullest extent allowed by applicable law,
all costs and taxes associated with such filing shall have been paid or provided
for by the Company.
(f) RECEIPT OF FACILITY PLAN. The Agent shall have received a
copy of the Facility Plan.
(g) ENVIRONMENTAL MATTERS. The Agent and the Lessor shall have
received an Environmental Assessment, demonstrating to their reasonable
satisfaction that there is no evidence of any hazardous or toxic material or
substance which has been generated, treated, stored, released or disposed of on
the Site, and that there is no evidence of any violation of any Environmental
Requirement and no evidence of any Environmental Damages on or pertaining to the
Facility.
(h) SOIL TESTS. The Agent shall have received soil test
reports as to soil borings on the Site by a soil testing firm reasonably
satisfactory to the Lenders and the Lessor. The number and location of such
borings shall be in accordance with the recommendations of the soil testing firm
and also reasonably satisfactory to the Lenders and the Lessor. The report shall
include the recommendations of the soil testing firm as to the preparation of
the soil needed to adequately support the Facility.
(i) SURVEY. The Agent shall have received the Survey of the
Site.
(j) APPRAISAL. The Lenders and the Lessor shall have received
an Approved Appraisal of the Property, which Approved Appraisal shall be in form
and substance reasonably satisfactory to the Lenders and the Lessor, and shall
indicate that (i) as of the Lease Commencement Date, the estimated fair market
value of the Facility is not less than Facility Cost attributable to the
acquisition thereof, and (ii) the projected fair market value of the Facility as
of the expiration of (A) the Construction Term and (B) the Basic Term (in each
case after giving effect to the proposed improvements and enhancements to be
renovated or constructed on the Site in accordance with the Plan), is not less
than the Facility Cost.
(k) TITLE INSURANCE. The Title Policy.
(l) FEES. For the account of (i) the Lenders, pro rata, an
upfront fee, payable by the Lessee, in the aggregate amount of $30,000, and (ii)
to the Agent for the Agent's account and (ii) to the Lessor for the Lessor's
account, the fees specified in the fee letter dated August 25, 1997 between the
Lessor and the Lessee.
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(m) OTHER. Such other documents as the Agent or any Lender,
the Lessor or special counsel to the Agent may reasonably request.
Section 6.02 INITIAL AND SUBSEQUENT LOANS AND LESSOR
INVESTMENT PAYMENTS. The obligation of the Lenders and the Lessor to make the
Initial Loans, the Lessor Investment Payments and each subsequent Loan and
Lessor Investment Payment and to continue each Loan and Lessor Investment
Payment pursuant to this Agreement is subject to the following further
conditions precedent:
(a) RECEIPT OF ADVANCE NOTICE. The Agent shall have received
Advance Notice pursuant to a funding request with regard to each Initial Loan
and each Lessor Investment Payment, and thereafter, each Loan or allocation of
the proceeds of Lessor Investment Payments, containing the information required
by Section 2.02, which shall be true and correct and shall be duly and properly
executed and completed by the Company as Acquisition/Construction Agent for the
Lessor. Such Advance Notice shall specify the amount of the Loans and Lessor
Investment Payments being utilized or applied to acquire work in progress and
itemize such work in progress in reasonable detail.
(b) NO DEFAULT. The fact that immediately before and after
such Loan and Lessor Investment Payment, no Default or Event of Default shall
have occurred and be continuing.
(c) ACCURACY OF REPRESENTATIONS, ETC. The representations and
warranties of the Lessor and the Company contained in this Agreement, and the
representations and warranties of the Lessor, the Company and the Guarantors
contained in any other Transaction Document, are true and correct in all
material respects on and as of the date of such Loan or Lessor Investment
Payment, as the case may be (except for any representations which were correct
on the date of this Agreement but are not correct on the date of any Loan and
Lessor Investment Payment because of a change permitted by the terms of this
Agreement or any other Transaction Document or because they expressly relate to
an earlier date).
(d) TITLE. The Lessor shall have good and marketable title to
the Facility, and all of the Lessor's contract rights under Related Contracts
and all other contracts entered into in connection with the acquisition,
renovation, construction, development and/or installation of the Facility by the
Company as Acquisition/Construction Agent for the Lessor pursuant to the Agency
Agreement shall have been pledged to the Agent for the benefit of the Lenders so
that the Agent shall have a first priority, perfected Lien on all such contract
rights; and the Agent shall have received executed copies of all Related
Contracts requested by it.
(e) RECEIPT OF APPLICABLE PERMITS. All Permits that are or
will become Applicable Permits shall have been obtained,
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except Applicable Permits customarily obtained or which are permitted by
Governmental Requirements to be obtained after the date of the requested Loan or
Lessor Investment Payment (in which case the Company, having completed all
appropriate due diligence in connection therewith, shall have no reason to
believe that such Permits will not be granted in the usual course of business
prior to the date that such Permits are required by Governmental Requirements).
All such obtained Permits shall be in proper form, in full force and effect and
not subject to any appeal or other unsatisfied contest that may allow
modification or revocation thereof.
(f) CASUALTIES. The Facility shall not have suffered (i) a
Loss Event or (ii) a Casualty Occurrence other than a Casualty Occurrence for
which a plan reasonably acceptable to the Agent for replacing, or causing to be
replaced, the portions of the Facility that are the subject of such Casualty
Occurrence has been provided to the Lessor.
(g) NO MATERIAL ADVERSE CHANGE OR EFFECT. No material adverse
change shall have occurred in the financial condition of the Company and its
Subsidiaries on a consolidated basis since the date of the most recent Fiscal
Quarter for which a financial statement of the Company was delivered to the
Agent and the Lenders and the Lessor and no event, act, condition or occurrence
shall exist or have occurred that has had, or would reasonably be expected to
have, a Material Adverse Effect.
(h) TAXES, FILINGS, RECORDINGS. All filings or recordings
reasonably considered necessary or desirable by the Agent, any Lender or the
Lessor have been completed and all taxes and fees in connection therewith, and
all Impositions with respect to the Facility that are then due and payable,
shall have been paid by the Company or, subject to Section 8.15, are being
contested in good faith by appropriate proceedings.
Each acceptance of a funding hereunder shall be deemed to be a representation
and warranty by the Company on the date of such funding as to the facts
specified in subsections (b), (c), (d), (e), (f), (g), and (h) of this Section
6.02.
Section 6.03 CONDITIONS PRECEDENT FOR THE BENEFIT OF LENDERS
AND THE LESSOR. All conditions precedent to the obligations of the Lenders and
the Lessor to make any Loan or Lessor Investment Payment are imposed hereby
solely for the benefit of the Lenders and the Lessor, and no other Person may
require satisfaction of any such condition precedent or be entitled to assume
that the Lenders and the Lessor will refuse to make any Loan or Lessor
Investment Payment in the absence of strict compliance with such conditions
precedent.
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Section 6.04 CLOSING. On the Closing Date (or in the case of
clause (b), as soon thereafter as the applicable closing conditions shall have
been satisfied), at such place as the parties hereto shall agree:
(a) this Agreement and each of the Transaction Documents shall
be duly executed and delivered by the parties to such documents; and
(b) subject to the satisfaction of the conditions precedent
specified in Section 6.01 and Section 6.02 of this Agreement, the Lenders shall
make the Initial Loans in the amounts set forth in the Advance Notice given by
the Company, and the Lessor shall make Lessor Investment Payments in an
aggregate amount equal to the Lessor Investment Commitment, in immediately
available funds to the account of the Lessor at such account of the Lessor as
the Company, as Acquisition/Construction Agent for the Lessor, may direct.
ARTICLE VII
Representations and Warranties
Section 7.01 COMPANY REPRESENTATIONS AND WARRANTIES. The
Company represents and warrants to each Person who now is or hereafter becomes a
party to this Agreement (except to the extent qualified by supplemental
disclosure set forth on SCHEDULE A) that:
(a) CORPORATE STANDING AND POWER. The Company and each
Guarantor is a duly organized and validly existing corporation in good standing
under the laws of its jurisdiction as set forth on SCHEDULE A and is duly
qualified or licensed as a foreign corporation in good standing in each
jurisdiction in which the failure to do so would have a Material Adverse Effect.
(b) CORPORATE AUTHORITY; NONCONTRAVENTION. The execution,
delivery and performance of this Agreement and the other Transaction Documents
are within the corporate powers of the Company and have been duly authorized by
all necessary corporate action. Neither the execution, delivery or PERFORMANCE
of this Agreement or any other Transaction Document, nor consummation of the
contemplated transactions will contravene any law, statute, rule or regulation
to which the Company is subject or any judgment, decree, franchise, order or
permit applicable to the Company, or will conflict or be inconsistent with or
will result in any breach of, or constitute a default under, or result in or
require the creation or imposition of any Lien (other than the liens created by
the Transaction Documents) upon any of the property or assets of the Company
pursuant to any Contractual Obligation, or violate any provision of the
corporate charters or by-laws of the Company. No order, permission, consent,
approval, license, authorization, registration or validation of, or filing with,
or exemption by, any Governmental Authority or any other
-29-
Person is required to authorize, or is required in connection with, the
execution, delivery and performance of this Agreement or any other Transaction
Document by the Company, or the taking of any action contemplated hereby or
thereby (except for such filings as may be necessary to create or perfect the
Liens contemplated by the Transaction Documents). Neither the Company nor any of
its Subsidiaries is (after taking into account applicable cure periods) in
default under any Contractual Obligation (including any Contractual Obligation
relating to any Indebtedness of the Company) where such default could reasonably
be anticipated to have a Material Adverse Effect.
(c) BINDING AGREEMENT. This Agreement and each other
Transaction Document constitutes valid and binding obligations of the Company
enforceable against the Company in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors' rights generally and subject
to general principles of equity, whether applied in a court of equity or at law.
(d) FINANCIAL CONDITION. (i) The Company has furnished the
Agent with complete and correct copies of the audited consolidated balance sheet
of the Company and its Subsidiaries as of the December 31, 1996, and the related
audited consolidated statements of income and of cash flows for the fiscal year
of the Company and its Subsidiaries ended on such date, examined by the
Accountants, and the Company's 10Q for the fiscal quarter ended September 30,
1997. Such financial statements (including the related schedules and notes)
taken together with the Audited Pooled Combined Proforma Financial Statements
included in SCHEDULE A (the "Pooled Combined Statements") fairly present the
consolidated financial condition of the Company and its Subsidiaries as of
December 31, 1996, and the consolidated results of their operations and their
consolidated cash-flows for the fiscal year then ended.
(ii) Neither the Company nor any of its Subsidiaries have any
material liabilities, contingent or otherwise, including liabilities for taxes
or any unusual forward or long-term commitments or any Guarantee, which are not
disclosed by or included in the above-referenced financial statements or the
accompanying notes, taken together with the Pooled Combined Statements, and
there are no unrealized or anticipated losses from any unfavorable commitments
of the Company or any of its Subsidiaries which may have a Material Adverse
Effect. During the period from the Financial Statements Date to the date hereof:
(i) there has been no sale, transfer or other disposition by the Company or any
of its Subsidiaries of any material part of their business or property and,
other than the acquisitions of Staff Administrators, Inc. and Amstaff, Inc., no
purchase or other acquisition of any business or property (including any capital
stock of any Person) material in relation to the consolidated financial
condition of the Company and its Subsidiaries at the Financial Statements Date;
and (ii) neither the Company nor any
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of their Subsidiaries have made a Restricted Payment, or agreed or committed to
make a Restricted Payment.
(iii) All the above-referenced financial statements (including
the related schedules and notes) have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by the
Accountants and disclosed therein and, in the case of interim financial
statements, subject to normal year-end adjustments and the absence of footnotes
and schedules).
(iv) Since the Financial Statements Date (other than as
reflected by the Pooled Combined Statements) there has been no development or
event, or to the best knowledge of the Company, any prospective development or
event, which has had or could reasonably be anticipated to have a Material
Adverse Effect. Since the date hereof, no event, condition or other development
has occurred relating to any matter disclosed on SCHEDULE A that has, or could
reasonably be expected to have, a Material Adverse Effect. The Company is not
party to or bound by any contract, agreement or instrument, nor subject to any
charter or other corporate restriction which will, under current or foreseeable
conditions, have a Material Adverse Effect.
(e) LITIGATION DECLARATION. Except as set forth in SCHEDULE A,
there are no actions, suits or proceedings pending or threatened against or
affecting the Company or any of its Subsidiaries which in any one case or in the
aggregate, if determined adversely to the interests of such party, could
reasonably be anticipated to have a Material Adverse Effect.
(f) COMPLIANCE WITH ERISA. The Company and each member of the
Controlled Group have fulfilled their obligations under the MINIMUM funding
standards of ERISA and the Code with respect to each Plan and are in compliance
in all material respects with the presently applicable provisions of ERISA and
the Code, and have not incurred any liability to the PBGC or a Plan under Title
IV of ERISA (other than to make contributions or premium payments in the
ordinary course).
(g) COMPLIANCE WITH LAWS. Neither the Company nor any of its
Subsidiaries is in default and/or in violation of any applicable statute, rule,
writ, injunction, decree, order or regulation of any Governmental Authority
having jurisdiction over the Company or its Subsidiaries which default or
violation could reasonably be anticipated to have a Material Adverse Effect.
(h) TAXES. All tax returns of the Company and its Subsidiaries
required to be filed have been timely filed, all material taxes, fees and other
governmental charges (other than those being contested in good faith by
appropriate proceedings diligently conducted and with respect to which adequate
reserves have been established and, in the case of AD VALOREM taxes or
betterment assessments, no proceedings to foreclose any lien with respect
thereto have been commenced and, in all other cases, no
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notice of lien has been filed or other action taken to perfect or enforce such
lien) shown thereon which are payable have been paid. The charges and reserves
on the books of the Company and its Subsidiaries for all income and other taxes
are adequate, and the Company knows of no additional assessment or any basis
therefor. The Federal income tax returns of the Company and its Subsidiaries
have not been audited within the last three years, all prior audits have been
closed, and there are no unpaid assessments, penalties or other charges arising
from such prior audits.
(i) INVESTMENT COMPANY STATUS; LIMITS ON ABILITY TO INCUR
INDEBTEDNESS. The Company is not an "investment company" or a company
"controlled by" an investment company within the meaning of the Investment
Company Act of 1940, as amended. The Company is not subject to regulation under
any Federal or State statute or regulation which limits its ability to incur
Indebtedness.
(j) OWNERSHIP OF PROPERTY; LIENS. Except as set forth in
SCHEDULE A, the Company has good and marketable title to all of its properties
and assets, including the properties and assets reflected in the consolidated
balance sheet of the Company as of the Financial Statements Date, except such as
have been disposed of since that date in the ordinary course of business, and
none of such properties or assets is subject to any Lien except for (a)
Permitted Liens, or (b) a defect in title or other claim other than defects and
claims that, in the aggregate, would have no Material Adverse Effect. The
Company enjoys peaceful and undisturbed possession under all leases necessary in
any material respect for the operation of their properties and assets and no
material default exists under such leases (after taking into account applicable
cure periods under said leases). All such leases are valid and subsisting and
are in full force and effect.
(k) NO DEFAULTS. As of the date of this Agreement, no Default
exists.
(l) DISCLOSURE. None of the representations and warranties
made by the Company in this Agreement, or in any other document furnished to the
Agent or the Lenders by or on behalf of the Company in connection herewith
contains (or will contain on the Closing Date) any untrue statement of material
fact or omits (or will omit on the Closing Date) to state any material fact
necessary to make the statements herein or therein, in light of the
circumstances under which they are made, not misleading. There is no fact known
to the Company on the date of this Agreement which has any reasonable likelihood
of having a Material Adverse Effect which has not been set forth in or referred
to in this Agreement.
(m) COMPLIANCE WITH ENVIRONMENTAL LAWS. (i) The Company and
all of its Subsidiaries have obtained all Governmental Approvals that are
required for the operation of their business under any Environmental Law, except
where the
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failure to so obtain a Governmental Approval would not have a Material Adverse
Effect.
(ii) The Company and all of its Subsidiaries are in compliance
with all terms and conditions of all required Governmental Approvals and are
also in compliance with all terms and conditions of all applicable Environmental
Laws, noncompliance with which would have a Material Adverse Effect.
(iii) There is no civil, criminal or administrative ac tion,
suit, demand, claim, hearing, notice of violation, investigation, proceeding,
notice or demand letter pending or, to the best knowledge of the Company
threatened against the Company or any of its Subsidiaries relating in any way to
the Environmental Laws, and there is no Lien of any private entity or
Governmental Authority against any property of the Company or any Subsidiary
thereof relating in any way to the Environmental Laws.
(iv) There has been no claim, complaint, notice, or request
for information received by the Company with respect to any site listed on the
National Priority List promulgated pursuant to CERCLA or any state list of sites
requiring investigation or cleanup with respect to contamination by Hazardous
Substances.
(v) To the best of the Company's knowledge, there has been no
release or threat of release of any Hazardous Materials at any Property owned by
the Company which would likely result in liability being imposed upon the
Company or any Subsidiary thereof, which liability would have a Material Adverse
Effect.
(n) CAPITAL STOCK. All Capital Stock, debentures, bonds, notes
and all other securities of the Company presently issued and outstanding are
validly and properly issued in accordance with all applicable laws in all
material respects, including but not limited to, the "Blue Sky" laws of all
applicable states and the federal securities laws.
(o) USE OF PROCEEDS; MARGIN STOCK. The proceeds of the Loans
and the Lessor Investment Payments are being used to finance or refinance the
Facility Cost with respect to the Facility, including the enhancements and
improvements to be made thereto and the design, renovation, construction and
installation thereof. Neither the Company nor the Lessor is engaged principally,
or as one of its important activities, in the business of purchasing or carrying
any Margin Stock, and no part of the proceeds of any Loan or Lessor Investment
Payment will be used to purchase or carry any Margin Stock or to extend credit
to others for the purpose of purchasing or carrying any Margin Stock, or be used
for any purpose which violates, or which is inconsistent with, the provisions of
Regulations G, T, U or X.
(p) SOLVENCY. The Company has and, after giving effect to the
Company's incurrence of its obligations under the Lease and the Operative
Guaranties, will have, assets (both tangible
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and intangible) having a fair saleable value in excess of the amount required to
pay the probable liability on its then existing debts (whether matured or
unmatured, liquidated or unliquidated, fixed or contingent); the Company has and
will have access to adequate capital for the conduct of its business and the
discharge of its debts incurred in connection therewith as such debts mature;
the Company was not insolvent immediately prior to the Company's incurrence of
its obligations under the Lease, and immediately after giving effect thereto,
the Company will not be insolvent.
(q) FACILITY PLAN. The Facility Plan has been prepared in good
faith on the basis of assumptions deemed reasonable by the Company and
accurately reflects in all respects all material costs currently anticipated to
be incurred in connection with achieving Completion. The Facility Plan sets
forth the Company's good faith estimation of the schedule for achieving
Completion. All material agreements and instruments comprising the Facility Plan
are in full force and effect and the Company is not in default of its
obligations thereunder in any respect that would reasonably be expected to have
a Material Adverse Effect. To the best knowledge of the Company, there are no
agreements, instruments, licenses or other rights necessary to own, operate,
lease or use the Facility the failure to obtain which would reasonably be
expected to result in a Material Adverse Effect, other than the Applicable
Permits, the documents and instruments comprising the Facility Plan, and the
Transaction Documents; and renovation, construction, ownership, operation,
leasing or use of the Facility by the Company (and after the expiration or
termination of the Lease, the renovation, construction, ownership, operation,
leasing or use of the Facility by the Lessor or its successors or assigns) does
not and will not infringe on, or otherwise violate, any patents, patent
applications, trademarks (whether registered or not), trademark applications,
trade names, proprietary computer software, or copyrights of any Person in any
manner that would reasonably be expected to have a Material Adverse Effect.
(r) INSURANCE. The Company and each of its Subsidiaries has
(either in the name of the Company or in such Subsidiary's own name), with
financially sound and reputable insurance companies, insurance in at least such
amounts and against at least such risks (including on all its property, and
public liability and worker's compensation) as are usually insured against in
the same general area by companies of established repute engaged in the same or
similar business.
(s) LABOR RELATIONS. There is (i) no unfair labor practice
complaint pending against the Company or any of its Subsidiaries or, to the best
knowledge of the Company, threatened, before the National Labor Relations Board,
and no grievance or arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Company or any of its
Subsidiaries or, to the best knowledge of the Company, threatened, except for
such complaints, grievances or
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arbitration proceedings which, if adversely decided, would not have a Material
Adverse Effect, (ii) no strike, labor dispute, slow down or stoppage is pending
against the Company or any of its Subsidiaries or, to the best knowledge of the
Company, threatened against the Company or any of its Subsidiaries, except for
any such labor action as would not have a Material Adverse Effect, and (iii) to
the best knowledge of the Company, no union representation question is existing
with respect to the employees of the Company or any of its Subsidiaries and, to
the best knowledge of the Company, no union organizing activities are taking
place, except for any such question or activities as would not have a Material
Adverse Effect.
(t) INTELLECTUAL PROPERTY. The Lessee and the Guarantors own
or license such copyrights, patents, trademarks and similar rights
("INTELLECTUAL PROPERTY") as are necessary for the conduct of their respective
businesses as now conducted, without any known conflict with the rights of
others which would have a Material Adverse Effect. Following the occurrence and
during the continuance of an Event of Default, the Lessee and the Guarantors,
upon the request of the Agent, shall make reasonably diligent efforts to prepare
and deliver to the Agent a reasonably detailed listing of all such Intellectual
Property, provided that nothing herein shall require the registration of any
such Intellectual Property.
Section 7.02 REPRESENTATIONS AND WARRANTIES OF LESSOR.
Lessor represents and warrants to the Company, the Agent and the
Lenders that:
(a) EXISTENCE. The Lessor is a corporation duly organized,
validly existing and in good standing under the laws of the State of Rhode
Island.
(b) LITIGATION. There is no action, suit or proceeding
pending, or to the knowledge of the Lessor, threatened, against or affecting the
Lessor before any court or arbitrator or any governmental body, agency or
official which contests the validity or enforceability of the Transaction
Documents or which in any manner draws into question the validity of or could
impair in any material respect the ability of the Lessor to perform its
obligations under this Agreement or any of the Transaction Documents executed by
it.
(c) NO BREACH. The execution and delivery of this Agreement,
the Notes and the other Transaction Documents, the transactions herein and
therein contemplated and compliance with the terms and provisions hereof and
thereof will not conflict with, or result in a breach of, or require any consent
of any Person not already obtained, under the charter or bylaws of the Lessor,
or any Governmental Requirement of the State of the Lessor or its state of
incorporation or the United States of America or any other governmental
authority governing its banking and trust powers, or any agreement or instrument
to which the Lessor is a party or by which it is bound or to which it is
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subject, or constitute a default under any such agreement or instrument, or
result in the creation or imposition of any Lien (except under the Transaction
Documents and other Permitted Liens) upon any of the revenues or Properties of
the Lessor, including the Facility, pursuant to the terms of any such agreement
or instrument.
(d) ACTION. The Lessor has all necessary corporate power and
authority to execute, deliver and perform its obligations under this Agreement,
the Notes, the other Transaction Documents to which it is a party; and the
execution, delivery and performance by it of this Agreement, the Notes, the
other Transaction Documents to which it is a party have been duly authorized by
all necessary corporate action on its part; and this Agreement, the Notes and
the other Transaction Documents constitute the legal, valid and binding
obligations of the Lessor, enforceable against it in accordance with their
terms, except as may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
or by general principles of equity.
(e) APPROVALS. No authorizations, approvals or consents of,
and no filings or registrations with, the United States of America or any other
governmental authority governing its banking and trust powers are necessary for
the execution, delivery or performance by the Lessor of this Agreement, the
Notes, the other Transaction Documents to which it is a party, or for the
validity or enforceability thereof.
(f) OWNERSHIP OF FACILITY. As of the Initial Funding Date, the
Lessor owns legal and beneficial title to 100% of the record title interest in
and to the Site, free and clear of all Liens except Permitted Liens and the
interest of the Company under the Lease. None of the Permitted Liens will
interfere with the use or possession of the Facility or the use of or exercise
by the Lessor of its rights under any Transaction Document or with respect to
the Facility, except to the extent such interference would not be reasonably
expected to have a Material Adverse Effect.
ARTICLE VIII
Covenants
The Company covenants and agrees with the Agent, the Lessor and each
Lender to comply with the following covenants until either (i) the Facility has
been purchased by the Company (or one of its Affiliates) for the Purchase Price,
or (ii) the Lease has been terminated, the Facility has been returned to the
Lessor and the Termination Value or the Final Rent Payment or the Completion
Costs Payment, as the case may be, and all other amounts payable under the Lease
and the other Transaction Documents upon such occurrence have been paid in full,
and the Lessor, with respect to itself, covenants and agrees with the Agent and
each Lender to
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comply with the following covenants until all amounts payable under this
Agreement have been paid in full:
Section 8.01 INFORMATION. The Company will deliver to the
Agent, the Lessor and each of the Lenders:
(a) within forty-five (45) days after the end of each fiscal
quarter of the Company (other than the fourth quarter), the unaudited
consolidated and consolidating balance sheet and income statement and statement
of cash flows of the Company and its Subsidiaries as at and for the three-month
period ended on the last day of such fiscal quarter, accompanied by a
certificate of a Responsible Officer of the Company to the effect that such
financial statements fairly present the consolidated financial condition of the
Company and its Subsidiaries as of the end of such fiscal quarter, and the
consolidated results of their operations and their consolidated cash flows for
such fiscal quarter, in each case in accordance with GAAP (except for the
absence of footnotes) consistently applied (subject to normal year-end audit
adjustments);
(b) within one hundred twenty (120) days after the last day of
each fiscal year of the Company, the audited consolidated balance sheet and
income statement and statement of cash flows of the Company and its Subsidiaries
as at and for the fiscal year then ended, certified by the Accountants with an
unqualified opinion, the substance of such report to be reasonably satisfactory
to the Agent, together with the unaudited consolidating balance sheet and income
statement and statement of cash flows of the Company and its Subsidiaries as at
and for the year then ended and, following any change from the Company's
existing, guaranteed-cost workers compensation insurance coverage, an actuarial
review detailing the calculations of workers' compensation reserves for claims,
accompanied by a certificate of a Responsible Officer of the Company to the
effect that such financial statements fairly present the consolidated financial
condition of the Company and its Subsidiaries as of the end of such fiscal year
and the consolidated results of their operations for such fiscal year, in each
case in accordance with GAAP. Said financial statements shall indicate all
Guarantees or unusual forward or long-term commitments made by the Company or
any Subsidiaries thereof.
(c) at the time of the delivery of the quarterly and yearly
financial statements required by Sections 8.01(a) and (b) above, a Compliance
Certificate signed by a Responsible Officer of the Company in the form attached
to this Agreement as EXHIBIT H, appropriately completed;
(d) copies of any management letter provided by the
Accountants to the Company;
(e) promptly upon becoming aware of any litigation or other
proceeding against the Company or any of its Subsidiaries
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that could reasonably be expected to have a Material Adverse Effect, notice
thereof;
(f) within thirty (30) days prior to the commencement of each
fiscal year of the Company, a copy of the consolidated operating budget,
including, without limitation, projections of the anticipated cash flow of the
Company and its Subsidiaries for such fiscal year and a statement of the
assumptions on which such budget was prepared;
(g) promptly following the request of the Agent, the Lessor,
or any Lender, such further information concerning the business, affairs and
financial condition or operations of the Company and its Subsidiaries as the
Agent, the Lessor or any Lender may reasonably request;
(h) promptly upon the mailing thereof to the shareholders of
the Company generally, copies of all financial statements, reports, proxy
statements and other materials;
(i) within ten (10) Business days after each and every fiscal
quarter, commencing on the fiscal quarter ended December 31, 1997, until the
Completion Date, furnish to the Agent a Progress Report through the period
ending on such fiscal quarter and dated as of the last day of such or fiscal
quarter; and
(j) promptly upon the filing thereof by the Company with the
SEC (and in any event within ten (10) days of such filing), copies of any
registration statements and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents if such forms no longer exist).
Section 8.02 NOTICE OF DEFAULT, LOSS EVENT OR CASUALTY
OCCURRENCE. (a) As soon as practicable, and in any event, within three (3)
Business Days of becoming aware of the existence of any condition or event which
constitutes a Default or Event of Default hereunder, the Company will provide
the Agent, the Lessor and each Lender with written notice which shall have the
caption of "Notice of Default", specifying the nature and period of existence
thereof and what action the Company is taking or proposes to take with respect
thereto.
(b) Promptly upon becoming aware of the occurrence of either a
Loss Event or a Casualty Occurrence, or any other event or condition requiring
notice under of the Lease, the Company shall give the Agent, the Lessor and each
Lender written notice thereof, which notice shall specify the damage or loss to
the Facility in reasonable detail.
Section 8.03 INSPECTION OF PROPERTY, BOOKS AND RECORDS. The
Company will permit a representative of the Agent, the Lessor and any Lender
(including any field examiner or auditor retained by) to inspect the Facility
and make copies of the Company's books and records at any of the Company's
locations, and to discuss its affairs, finances and accounts with
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its officers and Accountants, at such reasonable times and places and as often
as the Agent, the Lessor or any Lender may reasonably request at the Company's
expense. The Company will keep books of record and account regarding the Lease
and shall maintain, on a current basis, books of proper record and account in
conformity with GAAP, consistently applied (to the extent applicable), which
books shall include copies of all Related Contracts and any amendments thereto
and the book value of the Facility and of each material item of Property
comprising or included in the Facility, and shall provide copies of the
foregoing to the Lessor, the Agent and the Lenders from time to time on request
at the Company's expense. The Company will keep proper books of record and
account in which full, true and correct entries in conformity with GAAP shall be
made of all dealings and transactions in relation to its business and
activities. The Company agrees to cooperate and assist in such visits and
inspections, in each case at such reasonable times and as often as may
reasonably be desired.
Section 8.04 CONDUCT OF BUSINESS; MAINTENANCE OF EXISTENCE.
The Company will, and will cause each of its Subsidiaries to, continue to engage
in the business in which it is engaged and maintain its existence and comply
with all applicable statutes, rules and regulations and remain duly qualified as
a foreign corporation, licensed and in good standing in each jurisdiction where
such qualification or licensing is required by the nature of its business, the
character and location of its property, business, or the ownership or leasing of
its property, except where such noncompliance or failure to so qualify would not
have a Material Adverse Effect, and the Company will, and will cause each of its
Subsidiaries to, maintain its properties in good operating condition, and
continue to conduct its business as presently conducted.
Section 8.05 DISSOLUTION. The Company shall not suffer or
permit dissolution or liquidation either in whole or in part or redeem or retire
any shares of its own stock, except through corporate reorganization to the
extent permitted by Section 8.13.
Section 8.06 USE OF PROCEEDS. The proceeds of the Loans and
Lessor Investment Payments will be used to fund the Facility Cost. Without
limiting the generality of the foregoing, no portion of the proceeds of the
Loans or the Lessor Investment Payments will be used by the Lessor or the
Company (i) in connection with, whether directly or indirectly, any tender offer
for, or other acquisition of, stock of any corporation with a view towards
obtaining control of such other corporation, except in a negotiated, consensual
transaction (ii) directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for
any purpose in violation of any applicable Governmental Requirement.
Section 8.07 COMPLIANCE WITH LAWS; PAYMENT OF TAXES. The
Company will comply, and will cause its Subsidiaries to
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comply, in all material respects with applicable laws (including but not limited
to ERISA), regulations and similar requirements of governmental authorities
(including but not limited to PBGC), except where the necessity of such
compliance is being contested in good faith through appropriate proceedings or
where the failure to comply would not reasonably be expected to have or cause a
Material Adverse Effect. The Company will pay, prior to the date on which
penalties attach thereto, all taxes, assessments, governmental charges, claims
for labor, supplies, rent and other obligations which, if unpaid, might become a
lien against the Facility or against Property of the Company, except liabilities
being contested in good faith and against which, if requested by the Agent, the
Company will set up reserves in accordance with GAAP and other than taxes,
assessments, governmental charges and other amounts which are not material in
amount and could not reasonably be expected to have a Material Adverse Effect.
Section 8.08 INSURANCE. The Company will maintain (either in
the name of the Lessor or the Company, as applicable), with financially sound
and reputable insurance companies, insurance on such of its property in at least
such amounts, and with such deductibles, and against at least such risks as are
usually insured against in the same general area by companies of established
repute engaged in the same or similar businesses. Without limitation of the
foregoing, the Company shall maintain or cause to be maintained, with Permitted
Insurers, insurance with respect to the Facility and its business in connection
therewith of the types and in the amounts specified in the Lease. The Company
will deliver or cause to be delivered to the Agent and the Lessor promptly upon
request of Agent, and in any event on January 1st of each calendar year,
commencing with January 1, 1999, a report by a firm of independent insurance
brokers or consultants chosen by the Company and acceptable to the Agent (a)
setting forth the insurance or self-insurance obtained pursuant to the Lease,
including, without limitation, the amounts thereof, the names of the insurers
and the property, hazards and risks covered thereby, and certifying that the
same comply with the requirements of the Lease, that all premiums then due and
payable thereon have been paid and that the same are in full force and effect,
that the Lessor and the Agent have been named as additional insureds and loss
payees, as their interests may appear, under each such policy, and are not
liable for payment of premiums thereunder, that such policies may not be
cancelled without at least 30 days prior notice to the Lessor and the Agent with
an opportunity to cure any default thereunder, and (b) certifying that in the
opinion of such firm, such insurance or self-insurance complies with the
requirements of the Lease and, as to amounts, coverage and provisions,
constitutes reasonable and customary coverage against risks customarily insured
against which would affect the Facility, or setting forth any recommendations of
such independent insurance brokers or consultants as to additional insurance, if
any, reasonably required for the protection of the interests of the Company, the
Lessor, the Agent and the Lenders in light of available insurance
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coverage and practice in the business engaged in by the Company at the Facility.
The Agent shall be entitled to rely on such reports without further
investigation of the facts and circumstances set forth therein.
Section 8.09 MAINTENANCE OF PROPERTY. The Company shall
maintain and preserve the Facility in accordance with the requirements of the
Lease. The Company shall maintain and preserve all of its properties and assets,
in good condition, repair and working order, ordinary wear and tear excepted.
Section 8.10 ENVIRONMENTAL NOTICES. The Lessor, or the
Company, for itself and as Acquisition/Construction Agent for the Lessor, shall
furnish to the Agent prompt written notice of all Environmental Liabilities,
pending or threatened Environmental Proceedings, Environmental Notices,
Environmental Judgments and Orders, and Environmental Releases of which the
Lessor or the Company shall have received actual notice or have actual knowledge
at, on, in, under or in any way affecting the Facility or any of its Properties,
and Properties of any Subsidiary, or any adjacent property, if the amount of
liability or of remediation cost to the Lessor, the Company, or any Subsidiary
is or could reasonably be expected to have a Material Adverse Effect, and all
facts, events, or conditions actually known to the Lessor or the Company that
could reasonably be expected to lead to any of the foregoing.
Section 8.11 ENVIRONMENTAL MATTERS. The Company shall not, and
shall not knowingly permit any Third Party to, use, produce, manufacture,
process, treat, recycle, generate, store, dispose of, manage at, or otherwise
handle, or ship or transport to or from the Facility or the Properties any
Hazardous Materials except for Hazardous Materials such as cleaning solvents,
pesticides and other similar materials used, produced, manufactured, processed,
treated, recycled, generated, stored, disposed of, managed, or otherwise handled
in minimal amounts in the ordinary course of business or of management or
maintenance of the Facility or the Properties in material compliance with all
applicable Environmental Requirements, and will take commercially reasonable
steps to prohibit any Third Party from doing any of the acts prohibited by the
foregoing.
Section 8.12 ENVIRONMENTAL RELEASE. The Company agrees that
upon its becoming aware of the occurrence of an Environmental Release, except
for any Environmental Release which occurred in substantial compliance with all
Environmental Requirements, at or on the Facility or any of the Properties owned
or operated by it or any Material Subsidiary, it will act promptly to determine
the extent of, and to take appropriate remedial action to eliminate, any such
Environmental Release, whether or not ordered or otherwise directed to do so by
any Environmental Authority, except to the extent that failure to take remedial
action would not have a Material Adverse Effect.
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Section 8.13 CONSOLIDATIONS, MERGER OR ACQUISITION. (a)
Neither the Company nor any of the Guarantors shall merge or consolidate with or
into any other Person, or make any acquisition of the business or assets of any
other Person except: (i) any Guarantor may merge into the Company or any other
Guarantor; (ii) Investments to the extent permitted by Section 8.17; (iii) the
purchase of office supplies and other consumable assets acquired in the ordinary
course of business; and (iv) Permitted Acquisitions.
(b) In addition to the requirements set forth in Section
8.13(a), the following additional conditions must be satisfied with respect to
each Permitted Acquisition:
(i) Any company, business or Person to be acquired
shall be engaged primarily in the same or a
related line of business to the then current
business conducted by the Lessee and the
Guarantors and shall have Adjusted EBITDA, with
adjustments reasonably acceptable to the Agent for
the twelve months immediately preceding the
proposed acquisition dates, greater than $1.00;
provided that in the case of an asset acquisition
such determination of the Adjusted EBITDA in
respect of such assets shall be made on a proforma
basis as if such assets and related liabilities
were assets and related liabilities belonging to a
Person to be acquired by the Company or any of the
Guarantors;
(ii) The Company and the Guarantors shall have
demonstrated, to the reasonable satisfaction of the
Agent, that on a pro forma basis and after giving
effect to the proposed acquisition, the Company and
the Guarantors will be in compliance with the
financial covenants set forth in Sections 8.20
through 8.24 hereof.
(iii) All necessary consents, approvals, licenses,
permissions, registrations or validations of any
Governmental Authority or any Person required for the
consummation of the proposed acquisition shall have
been obtained and shall be in full force and effect;
(iv) Prior written consent of all of the Lenders (any
request for such consent to be acted upon by the
Lenders within five Business Days after their
receipt of such request, together with the other
materials and information referenced herein) shall
have been obtained with respect to: (A) any
individual acquisition involving cash
consideration (including assumption of any
Indebtedness, or the issuance of any Seller Debt)
in excess of $10,000,000 or total consideration in
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excess of $25,000,000, and (B) any proposed
acquisition during any Fiscal Year to the extent that
the aggregate cash consideration paid by the Company
or the Guarantors (including assumption of any
Indebtedness, or the issuance of any Seller Debt) for
acquisitions completed during such fiscal year
exceeds $20,000,000 (taking into account the proposed
acquisition), unless such proposed acquisition
involves less than $1,000,000 in cash consideration
(including assumption of any Indebtedness, or the
issuance of any Seller Debt);
(v) Each new Subsidiary of the Company formed to make
such acquisition and each Person to be acquired which
becomes a Subsidiary of the Company shall become a
Guarantor pursuant to Section 8.33; and
(vi) The Agent and its counsel shall have received copies
of the acquisition agreement and such other documents
and information relating to the proposed acquisition
as the Agent or its counsel may reasonably request.
8.14 DISPOSITION OF ASSETS. The Company and the Guarantors
shall not convey, sell, lease, transfer or otherwise dispose of any of their
property, business or assets (including without limitation, accounts receivable
and leasehold assets), whether now owned or hereafter acquired, except for (i)
obsolete or worn out property disposed of in the ordinary course of business
(with standard discounts); (ii) the sale of inventory in the ordinary course of
business; (iii) other assets (excluding accounts receivable which may not be
disposed of), PROVIDED that the aggregate fair value of all assets disposed of
pursuant to this clause (iii) in any year shall not exceed five percent (5%) of
the consolidated total assets of the Company and the Guarantors as of the end of
any such year; (iv) the sale of the Excluded Property; and (v) the sale or other
disposition of assets acquired in connection with any Permitted Acquisition,
which assets are not used or useable in, or are otherwise not related to, the
same or related line of business as the business conducted by the Company and
the Guarantors.
Section 8.15 LIENS, ETC. The Company covenants and agrees that
it shall not create, assume or suffer to exist, any Liens upon any Property now
owned or hereafter acquired by it or upon the Facility, except for Permitted
Liens.
Section 8.16 RESTRICTED PAYMENTS. Neither the Company or any
of its Subsidiaries shall declare or make any Restricted Payment.
Section 8.17 INVESTMENTS. Neither the Company or any of its
Subsidiaries shall make, maintain or acquire any Restricted Investment in any
Person other than:
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(a) marketable obligations issued or guaranteed by the United
States of America having a maturity of one year or less from the date of
purchase;
(b) certificates of deposit, Eurodollar time deposits,
commercial paper or any other obligations of any lender or of any other bank or
trust company organized or licensed to conduct a banking business under the laws
of the United States or any State thereof and which has (or which is a
Subsidiary of a bank holding company which has) publicly traded debt securities
rated A or higher by Standard & Poor's Ratings Services or A-2 or higher by
▇▇▇▇▇'▇ Investors Service, Inc.);
(c) commercial paper with maturities of not more than 180 days
having the highest rating then given by ▇▇▇▇▇'▇ Investors Services, Inc. or
Standard & Poor's Ratings Services;
(d) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in subparagraph (a) above
entered into with any Lender or any of the banks referred to in subparagraph (b)
above;
(e) shares in money market mutual funds substantially all the
assets of which are comprised of securities and other obligations of the types
described in subparagraph (a)through (d) above;
(f) (i) depository accounts at any Lender; and (ii) depository
accounts maintained at other banks;
(g) stock or obligations issued to the Company or any
Subsidiary thereof in settlement of claims against others by reason of an event
of bankruptcy or a composition or the readjustment of debt or a reorganization
of any debtor of the Company or such Subsidiary;
(h) currently existing Investments set forth on SCHEDULE A;
and
(i) Investments by the Company (x) in any of its Subsidiaries
for the purpose of financing the conduct of the business of such Subsidiary, or
(y) in a newly formed or acquired Subsidiary in connection with a Permitted
Acquisition.
Section 8.18 INDEBTEDNESS. Neither the Company nor any of the
Guarantors shall create, incur, assume or suffer to exist any Indebtedness,
except:
(a) the "Obligations" to the "Lenders" under the Revolving
Credit Agreement (as those terms are defined therein);
(b) existing Indebtedness, including Subordinated Debt, if
any, listed on SCHEDULE A hereto;
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(c) Capital Lease Obligations in an aggregate amount not to
exceed $2,000,000 at any one time outstanding; PROVIDED that after giving effect
to the incurrence of any such Capital Lease Obligations and to the receipt and
application of the proceeds thereof, no Default or Event of Default shall have
occurred and be continuing;
(d) Subordinated Debt incurred by the Company and the
Guarantors after the date hereof; PROVIDED that, giving effect to the incurrence
of such Subordinated Debt and to the receipt and application of the proceeds
thereof, no Default shall have oc curred and be continuing;
(e) mortgage Indebtedness on the Excluded Property not to
exceed $500,000 in principal amount at any one time outstanding in addition to
the currently existing mortgage Indebtedness on such Excluded Property as
described on SCHEDULE A hereto;
(f) reimbursement obligations owing to the Company's and the
Guarantors' workers' compensation insurance carriers;
(g) purchase money Indebtedness for the purchase price of
equipment and capital assets incurred in the ordinary course of business,
PROVIDED that such Indebtedness does not exceed $500,000 in principal amount in
the aggregate at any time outstanding;
(h) Indebtedness assumed in connection with any Permitted
Acquisition to the extent the same does not exceed the limits set forth in
clause (a)iv) of the definition of Permitted Indebtedness, provided that such
Indebtedness was not incurred in contemplation of such Permitted Acquisition and
further provided that the aggregate amount of all such assumed Indebtedness does
not exceed $10,000,000; and
(i) unsecured Indebtedness of the Company and the Guarantors,
or any of them, issued to sellers in connection with Permitted Acquisitions,
provided that at the time of the incurrence of such Indebtedness and giving
effect thereto and to such acquisition, no Default shall have occurred and be
continuing (the "Seller Debt").
8.19 GUARANTEES. Neither the Company nor any of the Guarantors
shall create, incur or suffer to exist any obligations in respect of Guarantees
except for:
(a) existing Guarantees, if any, listed on SCHEDULE A hereto;
(b) Guarantees entered into after the date hereof in
connection with Capital Lease Obligations and Indebtedness permitted under
Section 8.18.
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Section 8.20 DEBT COVERAGE. The Company will not permit the
ratio of Total Funded Debt to Adjusted EBITDA to exceed 2.5 to 1.0 during any
four consecutive fiscal quarters, as determined at the end of each fiscal
quarter for the four quarters then ended.
Section 8.21 FIXED CHARGES COVERAGE. The Company will not
permit the ratio of Adjusted EBITDA plus rental payments in respect of the Lease
to Fixed Charges plus rental payments in respect of the Lease during any four
consecutive fiscal quarters, as determined at the end of each fiscal quarter for
the four quarters then ended, to be less than (i) 1.05 to 1.0 at the end of
each-fiscal quarter through December 31, 1997, and (ii) 1.25 to 1.0 at the end
of each fiscal quarter thereafter.
Section 8.22 CAPITAL RATIO. The Company will not permit the
ratio of Total Funded Debt to Capitalization to exceed 0.5 to 1.0 at any fiscal
quarter end.
Section 8.23 CURRENT RATIO. The Company will not permit the
ratio of Current Assets to Current Liabilities to be less than 1.35 to 1.0 at
any fiscal quarter end.
Section 8.24 MINIMUM TANGIBLE NET WORTH. The Company shall at
all times maintain consolidated Tangible Net Worth of not less than (i)
$26,851,622, plus (ii) seventy-five percent (75%) of all cumulative consolidated
Net Income of the Company following the Closing Date, PROVIDED, that for
purposes of this clause (ii) only positive consolidated Net Income shall be
included and any net losses shall be disregarded, plus (iii) seventy-five
percent (75%) of the net proceeds of any public offering by the Company of
shares of capital stock of the Company. The level of Tangible Net Worth required
under this Section 8.24 may be adjusted, for certain non-cash charges to the
extent incurred in connection with Permitted Acquisitions which are identified
to and approved by the Agent in writing.
Section 8.25 RELATED CONTRACTS. The Company, as agent for the
Lessor, will comply with, maintain execution counterparts of, and promptly upon
request by the Agent from time to time deliver copies of, or after the
occurrence of an Event of Default, originals of, all Related Contracts.
Section 8.26 TRANSACTIONS WITH AFFILIATES. Except as permitted
by Section 8.17 or as set forth on SCHEDULE A and except for transactions solely
between or among the Company and the Guarantors or between or among the
Guarantors, the Company will not, and will not permit any of the Subsidiaries
to, directly or indirectly, pay any funds to or for the account of, make any
Investment in, lease, sell, transfer or otherwise dispose of any assets,
tangible or intangible, or engage in any transaction in connection with any
joint enterprise or other joint arrangement with, any Affiliate of the Company,
unless such transaction is not prohibited by this Agreement, is for reasonable
business or tax purposes, is in the ordinary course of
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the Company's or such Subsidiary's business, and is upon fair and reasonable
terms no less favorable to the Company or such Subsidiary as those that could be
obtained in a comparable arm's length transaction with a Person not an
Affiliate.
Section 8.27 AGREEMENT TO PLEDGE, ETC. The Company
acknowledges that the Lessor shall grant to the Agent for the benefit of the
Lenders a first and prior Lien on and security interest in and to the Lease and
the other Transaction Documents and shall execute and deliver the Lessor
Mortgage encumbering the Facility, in each case securing the Notes and other
amounts owing to the Lenders by the Lessor under the Transaction Documents,
subject only to Permitted Liens.
Section 8.28 FURTHER ASSURANCES. The Company will cure
promptly any defects in the due execution and delivery by it of the Transaction
Documents, including this Agreement. The Company at its expense will promptly
execute and deliver to the Agent upon request all such other and further
documents, agreements and instruments in compliance with or accomplishment of
the covenants and agreements of the Company in the Transaction Documents,
including this Agreement, or to further evidence and more fully describe the
collateral relating to the Facility intended as security for the Notes and
Lessor Investment, or to correct any item that the Company and the Agent agree
constitutes an omission or error in the Transaction Documents, or more fully to
state the existing security obligations set out herein or in any of the
Transaction Documents, or to perfect, protect or preserve any Liens created
pursuant to any of the Transaction Documents, or to make any recordings, to file
any notices, or obtain any consents, required by the terms of the Transaction
Documents, all as may be necessary or appropriate in connection therewith.
Section 8.29 COMPLETION; ETC. The Lessor and the Company, as
agent for the Lessor, will use the proceeds of the Loans and the Lessor
Investment Payments for the purposes specified in Section 7.01(o) and will
proceed to achieve Completion on or prior to the Completion Date. The Company,
as agent for the Lessor, will perform and observe in all material respects its
obligations under the agreements and instruments comprising the Facility Plan
and all Applicable Permits the failure to perform or observe which will have a
Material Adverse Effect. The Company, as Acquisition/Construction Agent for the
Lessor, will preserve, protect and maintain in effect all Applicable Permits
unless the failure to maintain such Applicable Permits could not be reasonably
be expected to have a Material Adverse Effect.
Section 8.30 MAINTENANCE; ETC. The Company shall, as
Acquisition/Construction Agent for the Lessor, preserve, protect and maintain in
accordance with prudent industry practices their rights in and to the Applicable
Permits and all patents, patent applications, trademarks (whether registered or
not), trademark applications, trade names, proprietary computer software, or
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copyrights used in the ordinary course of business of the Facility that are
necessary for and material to the operation of the Facility the failure to have
or maintain which would have a Material Adverse Effect; and the Company shall
defend and hold harmless the Lessor, the Agent and each Lender from and against
any cost, liability or expense arising from any claim of infringement, misuse or
misappropriation of any of the foregoing.
Section 8.31 ENCROACHMENTS. The Facility, when completed,
shall be situated wholly within the boundary lines of the Site and shall not
encroach upon any contiguous or adjoining Property (other than those portions of
the Facility for which the Lessor has the right to locate and operate such
portions pursuant to use or operating agreements); and the Facility shall not
violate any other easements, rights-of-way, licenses or other agreements
affecting the Site.
Section 8.32 FACILITY PLAN. The Company shall not amend or
revise the Facility Plan in any manner which would materially and adversely
affect the operation, design or capacity of the Facility without the prior
written consent of the Majority Lenders, which will not be unreasonably
withheld. The Company shall not under any circumstance undertake to operate or
use or otherwise initiate the operations at or use of the Facility except in
accordance in all material respects with the Facility Plan and except for the
Permitted Use. The Company shall be fully and solely responsible for funding all
costs in connection with the acquisition, development, renovation, construction
and installation of the Facility in excess of the limits contained in Section
2.01, it being understood and agreed that neither the Lessor, the Agent nor any
Lender shall under any circumstances whatsoever be obligated to fund any amount
for any of the Facility Cost in excess of the limits contained in Section 2.01.
Section 8.33 NEW SUBSIDIARIES TO BECOME GUARANTORS. The
Company does not have any Subsidiaries except those on SCHEDULE A. Immediately
following the creation of any Subsidiary following the Closing Dates, a or the
acquisition by the Company of any Person which becomes a Subsidiary, the Company
(i) shall cause such Subsidiary to become a "Guarantor" and to execute and
deliver such instruments and other documents, in form and substance satisfactory
to the Agent, as the Agent shall reasonably require in order to effectuate such
joinder, (ii) shall forthwith deliver to the Agent pursuant to the Security
Instruments the certificates evidencing all of the issued and outstanding shares
of stock of such Subsidiary, accompanied by undated stock powers executed in
blank and take such other action as the Agent shall request to perfect the
security interest created therein pursuant to the Security Instruments, and
(iii) notify the Agent in writing of the creation or acquisition of such
Subsidiary. The Company shall, and shall cause the appropriate Subsidiaries to,
promptly (x) execute and deliver to the Agent such number of copies as the Agent
may specify of documents creating such Liens, (y) do all other things which may
be necessary or which the Agent may reasonably request in order
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to confer upon and confirm to the Agent the benefits of such security, and (z)
deliver such legal opinions, certificates, evidences of corporate action or
other documents as the Agent may reasonably request, all in form and substance
reasonably satisfactory to the Agent, relating to the satisfaction of the
Company's obligations under this Section.
Section 8.34 COVENANTS OF LESSOR. The Lessor covenants and
agrees that so long as it remains Lessor thereunder, the Lessor shall preserve
and maintain its corporate existence and material rights, privileges and
franchises, and perform every act and discharge all of its obligations hereunder
and under the Transaction Documents; PROVIDED the sole remedy of the parties to
this Agreement for breach by the Lessor of its obligations shall be to cause a
successor Person satisfactory to the Majority Lenders to assume the rights,
duties and obligations of the Lessor hereunder and under the other Transaction
Documents.
ARTICLE IX
Events of Default
Section 9.01 EVENTS OF DEFAULT. The occurrence and
continuation of any one or more of the following events shall constitute an
"EVENT OF DEFAULT".
(a) The Company, as Acquisition/Construction Agent for the
Lessor, shall default in the payment of any principal of any Loan or the
principal amount of any Lessor Investment Payment when due; or default in the
payment of any interest on any Loan or Yield (including without limitation any
Accrued Construction Term Yield) on any Lessor Investment Payment and the
continuance of such default for five (5) Business Days thereafter; or default in
the payment of any fees or other amounts payable by it hereunder or under the
Transaction Documents, to the Agent and the Lenders or the Lessor when due and
the continuance of such default for five (5) Business Days thereafter; or
default in the payment of any other amounts payable hereunder or under any other
Transaction Documents to agents, attorneys and consultants of the Agent or any
Lender or the Lessor when due and the continuance of such nonpayment for thirty
(30) days thereafter; or
(b) Any representation, warranty, certification or statement
made by the Company or the Guarantors in Article VII of this Agreement or in any
other Transaction Document or in any certificate, financial statement or other
document delivered pursuant to this Agreement or any other Transaction Document
shall prove to have been incorrect or misleading in any material respect when
made or reaffirmed (or deemed made or reaffirmed); or
(c) The Company shall fail to observe or perform any covenant
or agreement contained in Sections 8.02, 8.03, 8.05, 8.06, or 8.13 through 8.24;
or
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(d) The Company shall fail to observe or perform any covenant
or agreement contained or incorporated by reference in this Agreement (other
than those covered by paragraphs (a) and (c) above), or the Guarantors shall
fail to observe or perform any covenant or agreement contained or incorporated
by reference in the Guaranty (Lessee), and in either case such failure shall not
have been cured within (1) 20 days, with respect to [insert relevant references
to the Guaranty (Lessee), and (2) 30 days, with respect to all other covenants
or agreements, after the earlier to occur of (i) written notice thereof has been
given to the Lessor, the Company and the Guarantors by the Agent at the request
of the Majority Lenders or (ii) an executive, senior financial or accounting
officer of the Company or the Guarantors otherwise becomes aware of any such
failure; or
(e) An "Event of Default" under or as defined in (i) the Lease
or (ii) any other Transaction Document or (iii) the Revolving Credit Agreement
shall occur; or
(f) The Company, the Guarantors or any Material Subsidiary
shall fail to make any payment in respect of Indebtedness outstanding in an
aggregate principal amount equal to or greater than $500,000 (excluding
Indebtedness incurred pursuant hereto) after the expiry of any applicable grace
period; or
(g) Any other event or condition shall occur which (i) results
in the acceleration of the maturity of Indebtedness (other than Indebtedness
which would not constitute a "liability" in accordance with GAAP) outstanding of
the Company or any Guarantor in an aggregate principal amount equal to or
greater than $500,000, including, without limitation, any required mandatory
prepayment or "put" of such Indebtedness to the Guarantor, the Company or any
Material Subsidiary) or (ii) enables (or, with the giving of notice or lapse of
time or both, would enable) the holders of such Indebtedness or any Person
acting on such holders' behalf to accelerate the maturity thereof (including,
without limitation, any required mandatory prepayment or "put" of such
Indebtedness to the Guarantor, the Company or any Material Subsidiary); or
(h) The Company or any Guarantor shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing; or
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(i) An involuntary case or other proceeding shall be commenced
against the Company or any Guarantor seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Company or any Guarantor under the federal
bankruptcy laws as now or hereafter in effect; or
(j) The Company, any Guarantor, or any member of the
Controlled Group shall fail to pay when due any amount aggregating in excess of
$500,000 which it shall have become liable to pay to the PBGC or to a Plan under
Title IV of ERISA; or notice of intent to terminate a Plan or Plans shall be
filed under Title IV of ERISA by the Company, any member of the Controlled
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate or to cause a
trustee to be appointed to administer any such Plan or Plans or a proceeding
shall be instituted by a fiduciary of any such Plan or Plans to enforce Section
515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed
within 30 days thereafter; or a condition shall exist by reason of which the
PBGC would be entitled to obtain a decree adjudicating that any such Plan or
Plans must be terminated; or
(k) One or more judgments or orders for the payment of money
in an aggregate amount in excess of $500,000 (net of amounts fully covered by
insurance) shall be rendered against the Company or any Guarantor and such
judgment or order shall continue unsatisfied and unstayed for a period of 60
days; or
(l) A federal tax lien shall be filed against the Company or
any Guarantor under Section 6323 of the Code or a lien of the PBGC shall be
filed against the Company or any Guarantor under Section 4068 of ERISA and if in
either case the amount involved is in an aggregate amount in excess of $500,000
and such lien shall remain undischarged for a period of 25 days after the date
of filing;
(m) Any of the Transaction Documents shall cease, for any
reason, to be in full force and effect or the Guarantors or the Company shall so
assert; or
(n) The Company shall abandon the Facility or the renovation
or construction and development thereof, or Completion shall not have occurred
on or before the Completion Date;
UNLESS in any event, the Company (or any Affiliate thereof) pays the Termination
Value or acquires the Facility by payment in full of the Purchase Price within
five (5) Business Days after the occurrence of such event or existence of such
condition.
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Section 9.02 REMEDIES. Upon the occurrence and continuation of
any Event of Default:
(a) in the case of an Event of Default (other than one
referred to in Sections 9.01(h) or (i)), the Agent may and, upon request of the
Majority Lenders, shall, by notice to the Lessor and the Company and the
Guarantors, cancel the Commitments and/or declare the principal amount then
outstanding of and the accrued interest on the Loans and the principal amount of
and accrued Yield on the Lessor Investment and all other amounts payable by the
Lessor or by the Company, as Acquisition/Construction Agent for the Lessor,
hereunder and under the Notes to be forthwith due and payable, whereupon such
amounts shall be immediately due and payable without presentment, demand,
protest, notice of intent to accelerate, notice of acceleration or other
formalities of any kind, all of which are hereby expressly waived by the Company
and the Lessor, and apply the Cash Collateral in accordance with the provisions
of Section 2.02(c); and
(b) in the case of the occurrence of an Event of Default
referred to in Sections 9.01(h) or (i), the Commitments shall be automatically
cancelled and the principal amount then outstanding of and the accrued interest
on the Loans and the principal amount of and accrued Yield (including without
limitation all Accrued Construction Term Yield) on the Lessor Investment and all
other amounts payable by the Lessor, the Lessee or the Company as
Acquisition/Construction Agent for the Lessor hereunder, under the Notes and
under the other Transaction Documents shall become automatically immediately due
and payable without presentment, demand, protest, notice of intent to
accelerate, notice of acceleration or other formalities of any kind, all of
which are hereby expressly waived by the Company and the Lessor.
(c) Notwithstanding Sections 9.02(a) and (b), the Company or
the Guarantors may cure any Default or Event of Default under Section 9.01 by
paying the Termination Value or purchasing the Facility as provided in Section
15(c) of the Lease for the Purchase Price.
(d) The Lessor may not initiate or pursue remedies unless and
until the Agent and the Lenders have initiated remedies against the Facility,
the Company or the Guarantors. In the event the Agent and the Lenders have
initiated remedies, the Lessor may join in enforcement of remedies against the
Facility, the Company or the Guarantors.
(e) If the Majority Lenders shall have instructed the Agent to
cause the Lessor to sell or otherwise dispose of the Facility or to foreclose on
the Facility and other collateral in accordance with the Security Instruments
and the Lease, then (i) the net cash sales or foreclosure proceeds to be
received must at least equal an amount equal to the Funded Amount, plus all
other amounts then owing to the Lenders and the Lessor hereunder and under the
other Transaction Documents; and (ii) the Majority
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Lenders may not, without the consent of the Lessor, instruct the Lessor to sell
the Facility or any portion thereof for an amount less than the Unguaranteed
Amount, or instruct the Agent to foreclose on the Facility in accordance with
the Security Instruments and the Lease unless the Lenders intend to make a cash
bid to purchase the Facility for an amount not less than the Unguaranteed
Amount. In the event that all of the Lenders have been repaid in full in
accordance with this Agreement with respect to amounts owing to them as Lenders,
or if the Company or any of its Affiliates shall have acquired all of the Notes,
the Agent shall act or refrain from acting, and shall be fully protected in
acting or refraining from acting, in accordance with instructions signed solely
by the Lessor. Instructions of the Majority Lenders, and any action taken or
failure to act pursuant thereto, shall be binding on all of the Lenders and the
Lessor.
(f) The Agent, the Lenders and the Lessor agree not to
exercise their remedies against the Facility under the Security Instruments
unless an Event of Default has occurred and is continuing hereunder and the
Lease has terminated and the Company (or any Affiliate thereof) shall not have
purchased the Facility on or before the Cancellation Date.
ARTICLE X
The Agent
Section 10.01 APPOINTMENT, POWERS AND IMMUNITIES. Each Lender
and the Lessor hereby appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement of this Agreement or
collection of the Notes and the Lessor Investment), the Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes and the
Lessor; PROVIDED, HOWEVER, that the Agent shall not be required to take any
action which exposes the Agent to personal liability or which is contrary to
this Agreement or applicable law. The Agent agrees to give to each Lender and
the Lessor prompt notice of each notice given to it by the Lessor, the Company
or the pursuant to the terms of this Agreement or any of the Transaction
Documents.
Section 10.02 RELIANCE BY AGENT. None of the Agent or any of
its respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them in good faith under or in
connection with this Agreement, except for its or their own gross negligence or
willful misconduct. Without limitation of the generality of the
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foregoing, the Agent: (a) may treat the payee of any Note as the holder thereof
until the Agent receives and accepts an Assignment and Acceptance entered into
by the Lender which is the payee of such Note, as assignor, and an Eligible
Assignee, as assignee, as provided in Section 11.06; (b) may consult with legal
counsel (including counsel for the Company or the Guarantors), independent
public accountants and other experts selected by it in good faith and shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender or the Lessor and shall not be
responsible to any Lender or the Lessor for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement or any of the other Transaction Documents; (d) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement or any of the other Transaction
Documents on the part of the Company or the Guarantors or to inspect the
Facility or the property (including the books and records) of the Company or the
Guarantors; (e) shall not be responsible to any Lender or the Lessor for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement, any other Transaction Documents or any other instrument or
document furnished pursuant hereto; (f) shall incur no liability under or in
respect of this Agreement or the Transaction Documents by acting upon any
notice, consent, certificate or other instrument or writing (which may be by
telegram, telecopier, cable or telex) believed by it in good faith to be genuine
and signed or sent by the proper party or parties; and (g) shall act or refrain
from acting, and shall be fully protected in acting or refraining from acting,
in causing the Lessor to sell or otherwise dispose of the Facility, or in
foreclosing on the Facility in accordance with the Security Instruments, upon
receiving instructions signed by the Majority Lenders.
Section 10.03 DEFAULTS. The Agent shall not be deemed to have
knowledge of the occurrence of a Default (other than the non-payment of
principal of or interest on Loans, the face amount of or Yield on the Lessor
Investment or of fees) unless the Agent has received notice from a Lender, the
Company or the Lessor specifying such Default and stating that such notice is a
"Notice of Default." In the event that the Agent receives such a notice of the
occurrence of a Default, the Agent shall give prompt notice thereof to the
Lenders and the Lessor (and shall give each Lender and the Lessor prompt notice
of each such non-payment). The Agent shall (subject to Section 10.07) take such
action with respect to such Default as shall be directed by the Majority Lenders
or the Lessor, as appropriate, as provided in Section 10.02, provided that,
unless and until the Agent shall have received such directions, the 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 in the best
interest of the Lenders and the Lessor.
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Section 10.04 RIGHTS AS A LENDER. With respect to its
Commitment, the Loans made by it and the Notes issued to it, Fleet Real Estate
Capital, Inc. shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though Fleet Bank were not the Agent.
Fleet Bank and its affiliates may accept deposits from, lend money to, act as
trustee under indentures of, and generally engage in any kind of business with,
the Company, any of the Guarantors and any Person who may do business with or
own securities of the Company or any of the Guarantors, all as if Fleet Bank
were not the Agent and without any duty to account therefor to the Lenders.
Section 10.05 INDEMNIFICATION. The Lenders agree to indemnify
the Agent (to the extent not reimbursed by the Lessor or the Company), ratably
according to the respective principal amounts of the Notes then held by each of
them (or if no Notes are at the time outstanding or if any Notes are held by
Persons which are not Lenders, ratably according to the respective amounts of
the Aggregate Loan Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, orders, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Agent in any way relating to or
arising out of this Agreement or any of the Transaction Documents or any action
taken or omitted by the Agent under this Agreement or any of the Transaction
Documents, PROVIDED that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
orders, suits, costs, expenses or disbursements resulting from the Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its ratable share
of any out-of-pocket expenses (including reasonable counsel fees) incurred by
the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings, in bankruptcy or insolvency proceedings, or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement or the other Transaction Documents, to the extent that the Agent
is not reimbursed for such expenses by the Company or the Guarantors.
Section 10.06 NON-RELIANCE ON AGENT AND OTHER LENDERS. Each
Lender acknowledges that it has, independently and without reliance upon the
Agent or any other Lender and based on the financial statements referred to in
Section 7.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement. Except for
notices, reports and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent
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shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the affairs, financial condition or business of
the Company, the Lessor or the affiliates of either of them, which may come into
the possession of the Agent or any of its affiliates.
Section 10.07 FAILURE TO ACT. The Agent shall in all cases be
fully justified in failing or refusing to act hereunder or under the Transaction
Documents unless it shall be indemnified to its satisfaction by the Lenders
against any and all liability and expenses which may be incurred by it by reason
of taking or continuing to take any such action.
Section 10.08 RESIGNATION OR REMOVAL OF AGENT. The Agent may
resign at any time by giving written notice thereof to the Lenders, the Lessor
and the Company and may be removed at any time with or without cause by the
Majority Lenders. Upon any such resignation or removal, the Majority Lenders
shall have the right to appoint a successor Agent. If no successor Agent shall
have been so appointed by the Majority Lenders and shall have accepted such
appointment within 30 days after the retiring Agent's giving of notice of
resignation or the Majority Lenders' removal of the retiring Agent, then such
retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which
shall be a Lender and a commercial bank organized, or authorized to conduct a
banking business, under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $500,000,000. Upon
the acceptance of any appointment as Agent hereunder by a successor Agent, each
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this Agreement
and the Transaction Documents. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Article XI shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Agent under
this Agreement.
ARTICLE XI
Miscellaneous
Section 11.01 AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement or the Notes, and no consent to any departure by the
Company or the Lessor therefrom, shall be effective against the Company, the
Lessor, the Agent or the Lenders unless it shall be in writing and signed by the
Company and the Majority Lenders, and no amendment or waiver of any provision of
any Transaction Documents, and no consent to any departure by the Company or the
Lessor therefrom, shall be effective against the Company, the Lessor, the Agent
or the Lenders unless signed by the Persons executing such Transaction Document,
the Company and the Agent with the consent of the Majority Lenders; and in any
event, any such waiver or consent
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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, unless in writing and signed by the Company, the Lessor and all the
Lenders, be effective to: (a) waive any of the conditions specified in Article
VI, (b) increase the Aggregate Loan Commitments or Lessor Investment Commitment
or subject the Lessor or the Lenders to any additional obligations, (c) reduce
the principal of, or interest on, the Notes, or the face amount or yield on the
Lessor Investment hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Notes, or the face amount or Yield on the
Lessor Investment hereunder, (e) change the percentage of the Aggregate Loan
Commitments or Lessor Investment Commitment or of the aggregate unpaid principal
amount of the Notes or Lessor Investment, or the number of Lenders which shall
be required for the Agent, the Lenders, the Lessor or any of them to take any
action under this Agreement, (f) amend this Section 11.01, (g) except as
otherwise permitted in this Agreement or the other Transaction Documents, permit
the creation of any Lien (other than Permitted Liens) on the Collateral equal to
or prior to the interests of the Lenders, sell or otherwise dispose of any
portion of the Collateral or release any Lien created under the Transaction
Documents, (h) waive the terms of any payment obligation, amend or modify the
order of application of payments and proceeds, (i) amend, modify or waive any
provision of any of the Operative Guaranties or (j) change the requirements set
forth in SCHEDULE 1.02(B) necessary to achieve Completion; PROVIDED, FURTHER,
that no amendment, waiver or consent shall, unless in writing and signed by the
Agent in addition to the Lessor, the Lenders and other Persons required
hereinabove to take such action, affect the rights or duties of the Agent under
this Agreement or any Note.
Section 11.02 NOTICES. Except as otherwise provided in Article
II or Article V, all notices and other communications provided for hereunder
shall be in writing (including by telecopier and other readable communication)
and mailed by certified mail, return receipt requested, telecopied or otherwise
transmitted or delivered, if to the Company, at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇; if to any
Lender, at its address set forth under its name on its signature page hereto; if
to the Agent at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇; if to the Lessor at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇; or,
as to each party at such other address as shall be designated by such party in a
written notice to the other parties. All such notices and communications shall,
if so mailed, telecopied or otherwise transmitted, be effective when received,
if mailed, or when the appropriate answerback or other evidence of receipt is
given, if telecopied or otherwise transmitted, respectively. A notice received
by the Agent or a Lender or the Lessor by telephone pursuant to Article II or
Article V shall be effective if the Agent, Lender or Lessor believes in good
faith that it was given by an authorized
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representative of the Company and acts pursuant thereto, notwithstanding the
absence of written confirmation or any contradictory provision thereof.
Section 11.03 PAYMENT OF EXPENSES, INDEMNITIES, ETC.
(a) The Company as Acquisition/Construction Agent for the
Lessor agrees to pay on demand (i) all reasonable fees and out-of-pocket
expenses of counsel for the Agent (but not the separate counsel for the Lenders)
in connection with the preparation, execution and delivery of this Agreement,
the Notes, the other Transaction Documents and the other documents to be
delivered hereunder and the fulfillment or attempted fulfillment of conditions
precedent hereunder, and any amendments to any of the Transaction Documents,
(ii) all reasonable costs and expenses incurred by the Agent and its Affiliates
in initially syndicating all or any portion of the Commitments hereunder,
including, without limitation, the related reasonable fees and out-of-pocket
expenses of counsel for the Agent or its Affiliates, travel expenses,
duplication and printing costs and courier and postage fees, and excluding any
syndication fees paid to other parties joining the syndicate and (iii) all
out-of-pocket costs and expenses, if any, incurred by the Agent, the Lenders and
the Lessor in connection with the enforcement (whether through negotiations,
legal proceedings in bankruptcy or insolvency proceedings, or otherwise) of this
Agreement, the Notes, the other Transaction Documents and the other documents to
be delivered hereunder and thereunder, including the reasonable fees and
out-of-pocket expenses of separate counsel for each of them. In furtherance of
and not in limitation of the foregoing, the Company shall pay all fees, costs
and expenses incurred in obtaining the Facility Plan, the Approved Appraisal,
the Environmental Assessment, the Title Policy, the Surveys, the Related
Contracts and the Lessor's cost of obtaining residual value insurance. The
Company shall indemnify the Lessor, the Agent and each Lender against any
transfer taxes, documentary taxes, assessments or charges made by any
Governmental Authority by reason of the execution and delivery of any of the
Transaction Documents, and all other Impositions.
(b) The Company agrees, in addition to any other indemnity
obligations set forth in any Transaction Document, to indemnify and save
harmless, the Lessor, the Agent, each Lender and any of their successors and
assigns, and their respective of ficers, directors, incorporators, shareholders,
employees, agents, partners, attorneys, affiliates and servants (individually an
"INDEMNIFIED PARTY" and collectively the "INDEMNIFIED PARTIES") from and against
all liabilities, Liens, Taxes, Impositions, losses, obligations, claims, damages
(including, without limitation, penalties, fines, court costs and administrative
service fees), penalties, demands, causes of action, suits, proceedings
(including any investigations, litigation or inquiries), judgments, orders, sums
paid in settlement of claims, and costs and expenses of any kind or nature
whatsoever, including, without limitation, reasonable
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attorneys' fees and expenses and all other expenses incurred in connection with
investigating, defending or preparing to defend any cause of action, suit or
proceeding (including any investigations, litigation or inquiries) or claim
which may be incurred by or asserted against or involve any of them (whether or
not any of them is named as a party thereto) as a result of, arising directly or
indirectly out of or in any way related to (i) any actual or proposed use by the
Lessor or the Company of the proceeds of any of the Loans or Lessor Investment,
(ii) any other aspect of this Agreement, the Notes and the other Transaction
Documents, (iii) the operations of the business of the Company or the
Guarantors, (iv) the failure of the Company or the Guarantors to comply with any
Governmental Requirement (including, without limitation, design, construction,
manufacture, engineering, assembly, installation, use, operation or ownership of
the Facility or any portion thereof), (v) the breach of any representation or
warranty set forth herein regarding Environmental Requirements, (vi) the failure
of the Company as Acquisition/Construction Agent for the Lessor to pay any
amount required to be paid hereunder, including, without limitation, principal
and interest on the Notes and the face amount and Yield on the Lessor Investment
(whether or not the Lease has terminated), (vii) the failure of the Company to
perform any obligation herein required to be performed pursuant to Environmental
Requirements, or any act or omission which occurred or will occur at any prior
or subsequent time, or any condition or state of facts in existence at any prior
or subsequent time relating in any way to the Facility which gives rise to any
liability or obligation under any Environmental Requirement or gives rise to any
Environmental Damages, (viii) the Lessor's ownership and leasing of the Facility
pursuant to the Lease, (ix) the sale of any portion of the Facility either to
the Company or any other Person pursuant to the provisions of the Lease, (x) all
acts or omissions of the Company or any Sublessee, (xi) any Imposition, Lien,
judgment, order, tax, or other payment owing in respect of the Facility or which
the Company is obligated to discharge or pay to any Person, (xii) any action or
omission of the Company pursuant to, or breach of or failure to perform under,
the Agency Agreement, (xiii) any injury to, or death of, any Person, or damage
to or loss of Property to the extent not reimbursed by insurance prior to the
Indemnified Party having to make any payment in respect thereof, or any other
thing occurring on or resulting from activities on the Facility or any portion
thereof, (xiv) the renovation, construction, leasing, subleasing, operation,
occupancy, possession, use or non-use by the Company (whether in its individual
capacity or as Acquisition/Construction Agent for the Lessor) of the Facility or
any portion thereof, or the condition of the Facility or any portion thereof,
(xv) any Default or Event of Default under the Lease or this Agreement, (xvi)
any act or omission of the Company or its agents, contractors, licensees,
Sublessees, invitees, representatives or any other Person on or relating to, or
in connection with, the ownership, renovation, construction, leasing,
subleasing, operation, management, maintenance, occupancy, possession, use,
non-use or condition of the Facility
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or any portion thereof, (xvii) performance of any labor or services or
furnishing of any materials or other Property in respect of the Facility or any
portion thereof, (xviii) any permitted contest referred to in Section 13 of the
Lease, (xix) any claims for patent, trademark, trade name or copyright
infringement or (xx) any violation by the Company or the Guarantors of any
Transaction Document or any Related Contracts or any other contract or agreement
to which the Company or the Guarantors is a party, or of any Insurance
Requirement, in each case affecting any Indemnified Party, the Facility or any
portion thereof or the ownership, operation, occupancy, possession, use, non-use
or condition thereof, in each case regardless of the acts, omissions or
negligence of any Indemnified Party, it being the intent of the Company, to the
fullest extent permitted by applicable law, to indemnify the Indemnified Parties
for their own negligent acts or omissions (other than gross negligence or wilful
misconduct) in connection with any of the foregoing (collectively, the
"INDEMNIFIED RISKS"); PROVIDED, HOWEVER, that no Indemnified Party shall be
entitled to indemnity (or any other payment or reimbursement) for any
Indemnified Risks to the extent such Indemnified Risks result from or arise out
of one or more of the following: (1) any representation or warranty by such
Indemnified Party in the Transaction Documents being incorrect; (2) the willful
misconduct or gross negligence of, or the violation of any law, rule or
regulation binding upon such Indemnified Party; (3) the failure on the part of
the Lessor or the Agent to distribute in accordance with this Agreement any
amounts received and distributable by it hereunder; (4) a claim arising from the
offer, sale or delivery of the Lessor Investment or a Note or an interest in the
Lessor Investment or a Note or this Agreement by such Indemnified Party (other
than insert name of Lessor] or the Lessor, subject nevertheless to clause (2)
above) for a violation of any Governmental Requirement unless such violation was
caused by some performance or nonperformance of the Company or the Guarantors;
(5) claims of such Indemnified Party which is a Lender or the Agent arising
because of a claim against such Indemnified Party brought by another Lender or
the Agent; (6) any claim for economic losses based upon the rate of return of
the Loans; and (7) payment of the principal of the Tranche B Loans or the Lessor
Investment Payments in the circumstances described in Section 3.05(b), if the
Company shall have paid the Final Rent Payment or the Completion Costs Payment,
as applicable, and complied with its other obligations under the Transaction
Documents.
(c) If any cause of action, suit, proceeding or claim arising
from any of the foregoing is brought against any Indemnified Party, whether such
action, proceeding, suit or claim shall be actual or threatened, or in
preparation therefor, the Company will have the right, at its expense, to assume
the resistance and defense of such cause of action, suit, proceeding or claim or
cause the same to be resisted and defended; PROVIDED that such Indemnified Party
shall be entitled (but not obligated) to participate jointly in such defense, in
which case such Indemnified Party will be responsible for its own legal fees or
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other expenses, if any, related to such defense incurred subsequent to the joint
participation by such party in such defense. Notwithstanding the foregoing, if
any Indemnified Party shall have been advised by counsel chosen by it that there
may be one or more legal defenses available to such Indemnified Party that are
different from or additional to those available to the Company, the Indemnified
Party may assume the defense of such action and the Company agrees to reimburse
such Indemnified Party for the reasonable fees and expenses of any counsel
retained by the Indemnified Party. The Company may settle any action which it
defends hereunder on such terms as it may deem advisable in its sole discretion,
subject to its ability promptly to perform in full the terms of such settlement.
No Indemnified Party may seek indemnification or other reimbursement or payment,
including attorneys' fees or expenses, from the Company for any cause of action,
suit, proceeding or claim settled, compromised or in any way disposed of by the
Indemnified Party without the Company's prior written consent, which will not be
unreasonably withheld.
(d) The obligations of the Company under this Section 11.03
shall survive the expiration or any termination of this Agreement (whether by
operation of law or otherwise) and the payment of amounts owed by the Lessor and
the Company under this Agreement, the Notes, the Lessor Investment and the other
Transaction Documents, and shall also expressly survive any sale, transfer or
conveyance of the Facility made by the Lessor pursuant to the Lease.
(e) Upon demand for payment by any Indemnified Party of any
Indemnified Risks incurred by it for which indemnification is sought, the
Company shall pay when due and payable the full amount of such Indemnified Risks
to the appropriate party, unless and only so long as: (i) the Company shall have
assumed the defense of such action and is diligently prosecuting the same; (ii)
the Company is financially able to pay all its obligations outstanding and
asserted against the Company at that time, including the full amount of the
Indemnified Risks; and (iii) the Company has taken all action as may be
reasonably necessary to prevent (1) the collection of such Indemnified Risks
from the Indemnified Party; (2) the sale, forfeiture or loss of the Facility or
any portion thereof during such defense of such action; and (3) the imposition
of any civil or criminal liability for failure to pay such Indemnified Risks
when due and payable.
(f) The Company acknowledges and agrees that (i) its
obligations under this Section 11.03 are intended to include and extend to any
and all liabilities, Liens, Taxes, losses, obligations, claims, damages
(including, without limitation, penalties, fines, court costs and administrative
service fees), penalties, demands, causes of action, suits, proceedings
(including any investigations, litigation or inquiries), judgments, orders, sums
paid in settlement of claims, costs and expenses (including, without limitation,
response and remediation costs, stabilization costs, encapsulation costs, and
treatment, storage or disposal costs), imposed upon or incurred by or
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asserted at any time against any Indemnified Party (whether or not indemnified
against by any other party) as a result of, arising directly or indirectly out
of or in any way related to (A) the treatment, storage, disposal, generation,
use, transport, movement, presence, release, threatened release, spill,
installation, sale, emission, injection, leaching, dumping, escaping or seeping
of any Hazardous Materials at or from the Facility or any part thereof; (B) the
violation or alleged violation of any Environmental Laws relating to or in
connection with the Facility or any part thereof or any acts or omissions
thereon or relating thereto; (C) all other federal, state and local laws
designed to protect the environment or persons or property therein, whether now
existing or hereinafter enacted, promulgated or issued by any governmental
authority relating to or in connection with the Facility or any part thereof or
any acts or omissions thereon or relating thereto; (D) the Company's failure to
comply with its obligations under Section 7 of the Lease; and (E) any
abandonment of the Facility by the Company; PROVIDED, HOWEVER that no
Indemnified Party shall be entitled to indemnity or any other payment or
reimbursement for any of the types of claims enumerated in this Section 11.03(f)
to the extent such claims result from or arise out of the willful misconduct or
gross negligence of such Indemnified Party; and (ii) the indemnification
provided for under this Section 11.03(f) shall be governed by the procedures set
forth in Sections 11.03(c)-(e) above.
(g) Without limiting the generality of the foregoing
provisions of this Section 11.03, the Company agrees to pay or reimburse,
promptly upon demand, and protect, indemnify and save harmless, the Lessor, as
Lessor under the Lease, following the occurrence of a Termination Event, from
any action by any Sublessee or other owner of an interest in the Facility (other
than a Co-Lessee) which causes the Lessor, as Lessor under the Lease, any delay
in exercising its remedies, or results in the reduction of the Lessor's
remedies, under the Lease. Upon demand of the Lessor, as Lessor under the Lease,
for indemnification pursuant to this Section 11.03(g), the Company agrees that
it will, within twenty (20) days of such demand from the Lessor, (a) purchase
the Notes from the Lenders for a purchase price equal to the principal balance,
accrued, unpaid interest, fees and expenses, and all other amounts then owing by
the Lessor to the Lenders as advised to the Company in writing by the Agent, and
(b) purchase the Lessor Investment from the Lessor for a purchase price equal to
the outstanding face amount, accrued, unpaid Yield, fees and expenses, and all
other amounts then owing to the Lessor as advised to the Company in writing by
the Agent.
(h) In case any action shall be brought against any
Indemnified Party in respect of which indemnity may be sought against the
Company, such Indemnified Party shall promptly notify the Company in writing,
but the failure to give such prompt notice shall not relieve the Company from
liability hereunder, except to the extent that such failure to notify causes an
increase in the amount otherwise assertable under this indemnity.
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Section 11.04 NO WAIVER; REMEDIES. No failure on the part of
any Lender, the Agent or the Lessor to exercise, and no delay in exercising, any
right hereunder or under any Note or any Transaction Document shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
or under any Note or Transaction Document preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
Section 11.05 RIGHT OF SET-OFF. Upon the declaration of the
Notes as due and payable pursuant to the provisions of Section 9.02, each Lender
is hereby authorized at any time and from time to time, 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 and other indebtedness at
any time owing by such Lender to or for the credit or the account of the Company
against any and all of the obligations of the Company now or hereafter existing
under this Agreement or the Notes of the Company held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement or such Notes and although such obligations may be unmatured. Each
Lender agrees promptly to notify the Company after any such set-off and
application made by such Lender, PROVIDED that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Lender under this Section 11.05 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which such
Lender may have.
Section 11.06 ASSIGNMENTS AND PARTICIPATIONS.
(a) Neither the Lessor nor the Company may assign its rights
or obligations hereunder or under the Notes or the Lessor Investment or any
other Transaction Document without the prior consent of all of the Lenders and
the Agent.
(b) Each Lender may at any time assign to one or more banks or
other financial institutions all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Loan Commitment, the Loans owing to it and the Note held by it) and the assignee
thereof shall assume all such rights and obligations pursuant to an Assignment
and Acceptance executed by such assignee, such assigning Lender and the Agent);
PROVIDED, HOWEVER, that (i) each such assignment shall be of a constant, and not
a varying, percentage of all rights and obligations under this Agreement, (ii)
no interest may be sold by a Lender pursuant to this Section 11.06(b) unless the
assignee shall agree to assume ratably equivalent portions of the assigning
Lender's rights and obligations under this Agreement, (iii) the amount of the
Loan Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 (or, if
less, the entire Commitment of
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the assigning Lender), (iv) each such assignment shall be to an Eligible
Assignee, (v) a Lender may not have more than two (2) assignees that are not
then Lenders at any one time and (vi) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note subject to such
assignment and a processing and recordation fee of $3,500, and shall send to the
Company an executed counterpart of such Assignment and Acceptance. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (A) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder and (B) the assigning Lender thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(c) By executing and delivering an Assignment and Acceptance,
each assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the Company
or any Guarantor or the performance or observance by the Company of any of its
obligations under this Agreement or by the Company or any Guarantor any other
Transaction Document; (iii) such assignee confirms that it has received a copy
of this Agreement, together with copies of the financial statements referred to
in Section 7.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations
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which by the terms of this Agreement are required to be performed by it as a
Lender.
(d) The Agent shall maintain at its address referred to in
Section 11.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lenders and the Loan Commitment of, and principal amount of the Loans owing to,
each Lender from time to time (the "REGISTER"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Company, the Guarantors, the Lessor, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Company, the Guarantors, the Lessor or any Lender at any reasonable time and
from time to time upon reasonable prior notice. Upon the acceptance of any
Assignment and Acceptance for recordation in the Register, EXHIBIT E shall be
deemed to be amended to reflect the revised Loan Commitments of the Lenders
parties to such Assignment and Acceptance as well as administrative information
with respect to any new Lender as such information is recorded in the Register.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Note subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of EXHIBIT D, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Lessor, the Company and the Guarantors; within five (5) Business
Days after its receipt of such notice and its receipt of an executed counterpart
of such Assignment and Acceptance, the Lessor, at the expense of the Company,
shall execute and deliver to the Agent in exchange for the surrendered Note, a
new Note to the order of such Eligible Assignee in an amount equal to the Loan
Commitment assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Loan Commitment hereunder, a new Note, to the
order of the assigning Lender in an amount equal to the Loan Commitment retained
by it hereunder. Such new Note shall be in an aggregate principal amount equal
to the aggregate principal amount of such surrendered Note, shall be dated the
date of such Assignment and Acceptance and shall otherwise be in substantially
the form of EXHIBITS B or C, as applicable.
(f) Each Lender may sell participations to one or more banks
or other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Loan
Commitment and the Loans owing to it and the Notes held by it); PROVIDED,
HOWEVER, that (i) such Lender's obligations under this Agreement (including,
without limitation, its Loan Commitment to the Lessor hereunder) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of
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such obligations, (iii) such Lender shall remain the holder of any such Notes
for all purposes of this Agreement, (iv) the Company, the Guarantors, the Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with its rights and obligations under this Agreement and
the other Transaction Documents, (v) such Lender shall continue to be able to
agree to any modification or amendment of this Agreement or any waiver hereunder
without the consent, approval or vote of any such participant or group of
participants, other than modifications, amendments and waivers which (A)
postpone any date fixed for any payment of, or reduce any payment of, principal
of or interest on such Lender's Notes or (B) increase the amount of such
Lender's Loan Commitment in a manner which would have the effect of increasing
the amount of a participant's participation, or (C) reduce the interest rate
payable under this Agreement and such Lender's Note, or (D) consent to the
assignment or the transfer by the Company or the Lessor of any of its rights and
obligations under this Agreement and (vi) except as contemplated by the
immediately preceding clause (v), no participant shall be deemed to be or to
have any of the rights or obligations of a "Lender" hereunder.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
11.06, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Company or the Guarantors furnished
to such Lender by or on behalf of the Company or the Guarantors; PROVIDED that,
prior to any such disclosure, the assignee or participant or proposed assignee
or participant shall agree in writing for the benefit of the Company and the
Guarantors to preserve the confidentiality of any confidential information
relating to the Company or the Guarantors received by it from such Lender in a
manner consistent with Section 11.13.
(h) Anything in this Agreement to the contrary
notwithstanding, any Lender may at any time create a security interest in all or
any portion of its rights under this Agreement (including, without limitation,
the Loans owing to it) and the Note issued to it hereunder in favor of any
Federal Reserve Bank in accordance with Regulation A of the Board of Governors
of the Federal Reserve System (or any successor regulation) and the applicable
operating circular of such Federal Reserve Bank.
(i) Notwithstanding any other provision of this Agreement or
any other Transaction Document, neither the Company nor the Guarantors nor any
of their respective Affiliates may acquire any of the Notes unless the Company,
such Guarantor or such Affiliate acquires all of the Notes in a single
transaction and thereby becomes bound by the provisions hereof; and unless the
Company, such Guarantor or such Affiliate shall have acquired all of the Notes,
it shall not be entitled to exercise any rights or remedies of a Lender under
any of the Transaction Documents.
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(j) Notwithstanding any other provision of this Agreement to
the contrary, no assignee or participant shall be entitled to receive any
greater payment under Section 4.06 or 5.03 than the transferor Lender would have
been entitled to receive with respect to the rights transferred, unless such
transfer is made with the Company's prior written consent or by reason of the
provisions of Section 5.02 or 5.03 hereof requiring such Lender to designate a
different Applicable Funding Office under certain circumstances or at a time
when the circumstances giving rise to such a greater payment did not exist.
Section 11.07 INVALIDITY. In the event that any one or more of
the provisions contained in the Notes, this Agreement or in any other
Transaction Document shall, for any reason, be held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of the Notes, this Agreement or any other
Transaction Document.
Section 11.08 ENTIRE AGREEMENT. The Notes, this Agreement and
the other Transaction Documents embody the entire agreement and understanding
among the Lenders, the Lessor, the Agent, the Company and the Guarantors and
supersede all other agreements and understandings among such parties relating to
the subject matter hereof and thereof. This written Credit Agreement, the Notes
and the other Transaction 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.
Section 11.09 REFERENCES. The words "herein," "hereof,"
"hereunder" and other words of similar import when used in this Agreement refer
to this Agreement as a whole, and not to any particular article, section or
subsection. Any reference herein to an Article or Section shall be deemed to
refer to the applicable Article or Section of this Agreement unless otherwise
stated herein. Any reference herein to Schedule 8.31 or any other schedule shall
be deemed to refer to the applicable Schedule 8.31 or any other schedule
attached hereto unless otherwise stated herein.
Section 11.10 SUCCESSORS; SURVIVALS. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. The obligations of the Lessor and the Company
under Section 4.06, Article V, and Section 11.03 shall survive the repayment of
the Loans and Lessor Investment Payments and the termination of the Commitments.
Section 11.11 CAPTIONS. Captions and section headings
appearing herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
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Section 11.12 COUNTERPARTS. This Agreement may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart. Delivery to the Agent of a counterpart executed by
a Lender shall constitute delivery of such counterpart to all of the Lenders.
This Agreement may be delivered by facsimile transmission of the relevant
signature pages hereof.
Section 11.13 CONFIDENTIALITY. Each Lender, the Agent and the
Lessor (each, a "PARTY") agrees to exercise commercially reasonable efforts to
keep any information delivered or made available by the Company or any of its
Affiliates to it which is clearly indicated or stated to be confidential
information (or when the circumstances under which such information is delivered
or when the content thereof would cause a reasonable person to believe that such
information is confidential), confidential from anyone other than Persons
employed or retained by such Party who are or are expected to become engaged in
evaluating, approving, structuring or administering the Loans, the Lessor
Investment Payments or the Transaction Documents (such Persons to likewise be
under similar obligations of confidentiality with respect to such information);
PROVIDED, HOWEVER, that nothing herein shall prevent any Party from disclosing
such information (a) to any other Party, (b) upon the order of any court or
administrative agency, (c) upon the request or demand of any regulatory agency
or authority having jurisdiction over such Party, (d) which has been publicly
disclosed, (e) to the extent reasonably required in connection with any
litigation to which any Party or its respective affiliates may be a party, (f)
to the extent reasonably required in connection with the exercise of any remedy
hereunder, (g) to such Party's legal counsel and independent auditors, and (h)
to any actual or proposed participant, Eligible Assignee or other transferee of
all or part of its rights hereunder which has agreed in writing to be bound by
the provisions of this Section 11.13; PROVIDED that should disclosure of any
such confidential information be required by virtue of clause (b), (c) or (e) of
the immediately preceding sentence, any relevant Party shall promptly notify the
Company of same so as to allow the Company to seek a protective order or to take
any other appropriate action; PROVIDED, FURTHER, THAT no Party shall be required
to delay compliance with any directive to disclose beyond the last date such
delay is legally permissible any such information so as to allow the Company to
effect any such action.
Section 11.14 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) This Agreement and the Notes (including, but not limited
to, the validity and enforceability hereof and thereof) shall be governed by,
and construed in accordance with, the laws of the State of New York, other than
the conflict of laws rules thereof, except to the extent that the laws of the
State of Florida mandatorily apply.
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(b) The Company hereby irrevocably submits to the jurisdiction
of any New York State or Federal court sitting in New York City and any
appellate court from any thereof in any action or proceeding by the Agent, the
Lessor or any Lender in respect of, but only in respect of, any claims or causes
of action arising out of or relating to this Agreement, the Notes or the other
Transaction Documents (such claims and causes of action, collectively, being
"PERMITTED CLAIMS"), and the Company hereby irrevocably agrees that all
Permitted Claims may be heard and determined in such New York State court or in
such Federal court. The Company hereby irrevocably waives, to the fullest extent
it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any aforementioned court in respect
of Permitted Claims. The Company hereby irrevocably appoints CT Corporation
System (the "PROCESS AGENT"), with an office on the date hereof at ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its agent to receive on behalf of the
Company and its property service of copies of the summons and complaint and any
other process which may be served by the Agent or the Lenders or the Lessor in
any such action or proceeding in any aforementioned court in respect of
Permitted Claims. Such service may be made by delivering a copy of such process
to the Company by courier and by certified mail (return receipt requested), fees
and postage prepaid, both (i) in care of the Process Agent at the Process
Agent's above address and (ii) at the Company's address specified pursuant to
Section 11.02, and the Company hereby irrevocably authorizes and directs the
Process Agent to accept such service on its behalf. The Company agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
(c) Nothing in this Section 11.14: (i) shall affect the right
of any Lender, the Lessor or the Agent to serve legal process in any other
manner permitted by law or affect any right otherwise existing of any Lender,
the Lessor or the Agent to bring any action or proceeding against the Company or
its property in the courts of other jurisdictions or (ii) shall be deemed to be
a general consent to jurisdiction in any particular court or a general waiver of
any defense or a consent to jurisdiction of the courts expressly referred to in
subsection (a) above in any action or proceeding in respect of any claim or
cause of action other than Permitted Claims.
Section 11.15 INTEREST. It is the intention of the parties
hereto that each Lender and the Lessor shall conform strictly to usury laws
applicable to it. Accordingly, if the transactions contemplated hereby would be
usurious as to any Lender or the Lessor under laws applicable to it (including
the laws of the United States of America and the State of New York or any other
jurisdiction whose laws may be mandatorily applicable to such Lender or the
Lessor notwithstanding the other provisions of this Agreement), then, in that
event, notwithstanding anything to the contrary in the Notes, this Agreement or
in any other Transaction Document or any other agreement entered into in
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connection with or as security for the Notes or the Lessor Investment, it is
agreed as follows: (i) the aggregate of all consideration which constitutes
interest under law applicable to any Lender or the Lessor that is contracted
for, taken, reserved, charged or received by such Lender or the Lessor under or
with respect to the Notes, the Lessor Investment, this Agreement or under any of
the other aforesaid Transaction Documents or other agreements or otherwise in
connection with the Notes or the Lessor Investment shall under no circumstances
exceed the maximum amount allowed by such applicable law, and any excess shall
be cancelled automatically and if theretofore paid shall be credited by such
Lender or the Lessor on the principal or face amount of the Notes or the Lessor
Investment, as the case may be (or, to the extent that the principal or face
amount of the Notes or the Lessor Investment shall have been or would thereby be
paid in full, refunded by such Lender or the Lessor); and (ii) in the event that
the maturity of the Notes or the Lessor Investment is accelerated by reason of
an election of the holder thereof resulting from any Event of Default under this
Agreement or otherwise, or in the event of any required or permitted prepayment,
then such consideration that constitutes interest under law applicable to any
Lender or the Lessor may never include more than the maximum amount allowed by
such applicable law, and excess interest, if any, provided for in this Agreement
or otherwise shall be cancelled automatically by such Lender or the Lessor as of
the date of such acceleration or prepayment and, if theretofore paid, shall be
credited by such Lender or the Lessor on the principal or face amount of the
Notes or the Lessor Investment, as the case may be (or, to the extent that the
principal or face amount of the Notes or the Lessor Investment shall have been
or would thereby be paid in full, refunded by such Lender or the Lessor). All
sums paid or agreed to be paid to any Lender for the use, forbearance or
detention of sums due hereunder shall, to the extent permitted by law applicable
to such Lender, be amortized, prorated, allocated and spread in equal parts
throughout the full term of the Loans evidenced by the Notes, and all sums paid
or agreed to be paid to the Lessor for the use, forbearance or detention of sums
due hereunder with respect to the Lessor Investment shall, to the extent
permitted by law applicable to the Lessor, be amortized, prorated, allocated and
spread in equal parts throughout the full term of the Lessor Investment, in each
case until payment in full so that the rate or amount of interest on account of
any Loans and Lessor Investment hereunder does not exceed the maximum amount
allowed by such applicable law. If at any time and from time to time (i) the
amount of interest or Yield payable to any Lender or the Lessor on any date
shall be computed at the Highest Lawful Rate applicable to such Lender or the
Lessor pursuant to this Section 11.15 and (ii) in respect of any subsequent
interest or Yield computation period the amount of interest or Yield otherwise
payable to such Lender or the Lessor would be less than the amount of interest
or Yield payable to such Lender or the Lessor computed at the Highest Lawful
Rate applicable to such Lender or the Lessor, then the amount of interest or
Yield payable to such Lender or the Lessor in respect of such
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subsequent interest or Yield computation period shall continue to be computed at
the Highest Lawful Rate applicable to such Lender or the Lessor until the total
amount of interest or Yield payable to such Lender or the Lessor shall equal the
total amount of interest or Yield which would have been payable to such Lender
or the Lessor if the total amount of interest or Yield had been computed without
giving effect to this Section.
Section 11.16 CHARACTERIZATION.
(a) In order to protect the rights and remedies of the Lessor,
the Agent and the Lenders following a Default, an Event of Default, a
Termination Event or a Cancellation Event, and for the purposes of Federal,
state and local income and AD VALOREM taxes and Title 11 of the United States
Code (or any other applicable Federal, state or local insolvency,
reorganization, moratorium, fraudulent conveyance or similar law now or
hereafter in effect for the relief of debtors), the parties hereto intend that
(i) the Lease be treated as the repayment and security provisions of a loan by
the Lessor to the Company in the amount of the Facility Cost, (ii) all payments
of Basic Rent, Supplemental Rent, the Final Rent Payment or the Completion Costs
Payment, as applicable, the Termination Value and the Purchase Price be treated
as payments of principal, interest and other amounts owing with respect to such
loan and (iii) the Company be treated as entitled to all benefits of ownership
of the Facility and other Property included under the Lease or any part thereof.
In addition, the parties acknowledge that after payment in full of the Notes and
the Lessor Investment, the interest and Yield accrued thereon and any other
obligations of the Company under the Transaction Documents, any remaining
proceeds of the Facility and other Property included under the Lease shall be
distributed to the Company.
(b) The Company agrees that neither it nor any of its
Affiliates (whether or not consolidated or combined returns are filed for any
such Affiliate and the Company for federal, state or local income tax purposes)
will at any time take any action, directly or indirectly, or file any return or
other document inconsistent with the intended income tax treatment set forth in
the preceding sentence, and the Company agrees that the Company and any such
Affiliates will file such returns, maintain such records, take such action and
execute such documents (as reasonably requested by the Lessor, the Agent or the
Lenders from time to time) as may be appropriate to facilitate the realization
of such intended income tax treatment. Each of the Lessor, the Agent and the
Lenders agrees that neither it nor any affiliate (whether or not consolidated or
combined returns are filed for such affiliate and the Lessor, the Agent or any
Lender, as the case may be, for federal, state or local income tax purposes)
will at any time take any action, directly or indirectly, or file any return or
other document claiming, or asserting that it is entitled to, the income tax
benefits, deductions and/or credits which, pursuant to the intended income tax
treatment set forth
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herein, would otherwise be claimed or claimable by the Company, and that it and
any such affiliates will file such returns, maintain such records, take such
actions, and execute such documents (as reasonably requested by the Company or
the Guarantor from time to time) as may be appropriate to facilitate the
realization of, and as shall be consistent with, such intended income tax
treatment, and if any such filing, maintenance, action or execution requested by
the Company would result in any additional income tax liability payable by it or
any affiliate, or could reasonably be expected to result in liability payable by
it or any affiliate, unrelated to the intended income tax treatment set forth
herein, then the Company will provide an indemnity against such unrelated income
tax liability satisfactory to the Lessor, the Agent or any Lender, as the case
may be, in its sole opinion.
(c) The Company acknowledges that neither any Lender, the
Agent, the Lessor or any Affiliate of any thereof is making any representation,
nor is it required to make any disclosure, now or in the future, with respect to
the parties' tax or accounting treatment of the Facility or the financing
thereof, nor is any Lender, the Agent, the Lessor or any Affiliate or any
thereof responsible, nor will it be responsible in the future, for tax and
accounting advice with respect to the Facility or the financing thereof, and the
Company has had or will have the benefit of the advice of its own independent
tax and accounting advisors with respect to such matters.
Section 11.17 COMPLIANCE. Neither the Lessor, the Agent nor
any Lender has any responsibility for compliance by the Facility or the Company
with any Governmental Requirement or other matters. The Company expressly
assumes such responsibilities and shall indemnify and hold harmless the Lessor,
the Agent and the Lenders with respect thereto in the manner provided in the
Lease.
Section 11.18 FACILITY. Upon payment by the Company of the
Purchase Price in connection with its purchase of all of the Facility in
accordance with the Lease or the Agency Agreement, or the repayment in full of
all amounts then due and owing by the Company under the Transaction Documents,
and promptly upon the request of the Company, (i) the Agent shall give to the
Lessor notice thereof and (ii) the Lessor will convey the Facility to the
Company or its designee, as provided in the Lease, free and clear of any Lien or
other adverse interest of any kind created by the Lessor or any Person claiming
by, through or under the Lessor, including, without limitation, the Agent and
the Lenders (except as consented to by the Company).
Section 11.19 THE LESSOR. Except for liability for its own
representations and warranties in Section 7.02 hereof, and for its own gross
negligence and willful misconduct and as otherwise expressly provided in any of
the Transaction Documents, the Company, the Agent and the Lenders hereby agree
that under no circumstances shall the Lessor be personally liable for the
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payment of the Notes or any other obligations of the Lessor (all of which are
non-recourse to it) or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Lessor under this
Agreement or the other Transaction Documents except as provided above, and all
claims to the contrary hereby are waived. The Lessor agrees that all payments to
be made to the Agent or the Lessor under any of the Transaction Documents which
originate from the Company or the Guarantors shall be made directly by the
Company or the Guarantors to the Agent and all fundings to be made to the Lessor
hereunder shall be made directly to the Company.
Section 11.20 LENDERS. No recourse under any obligation,
covenant or agreement of any Lender contained in this Agreement, any Transaction
Document or any agreement or document executed in connection herewith or
therewith or the transactions contemplated hereby or thereby shall be had
against any shareholder, employee, officer, director, affiliate or incorporator
of the Lenders. The obligations, covenants and agreements of the Lenders under
any of the foregoing agreements and documents are solely the corporate
obligations of the Lenders, and the other parties hereto agree to look solely to
the Lenders for payment of all obligations, including, without limitation, any
fees or other amounts due hereunder or thereunder, and claims arising out of or
relating to any of the foregoing agreements and documents. The provisions of
this Section shall survive the termination of this Agreement.
Section 11.21 WAIVER OF JURY TRIAL. Each of the parties hereto
waives, to the fullest extent permitted by applicable law, any right to a trial
by jury in any action or proceeding to enforce or to defend any rights under
this Agreement or any other Transaction Document or under amendment, instrument,
document or agreement delivered or which may in the future be delivered in
connection herewith or therewith or arising from any relationship existing in
connection with this Agreement or any other Transaction Document, and agrees
that any such action or proceeding shall be tried before a court and not before
a jury.
[SIGNATURES CONTAINED ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
The Company: THE VINCAM GROUP, INC.
By:/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Principal Place of Business and
Chief Executive Offices:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Lessor: FLEET REAL ESTATE, INC.
By:/s/ ▇.▇. ▇▇▇▇
-----------------------------
Name: ▇.▇. ▇▇▇▇
Title: S.V.P
Applicable Funding Office for
Lessor Investment Payments:
Fleet Real Estate, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Fleet Real Estate, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇
Agent: FLEET NATIONAL BANK, as Agent
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
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Lenders: FLEET REAL ESTATE CAPITAL, INC.
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, SVP
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Applicable Funding Office for Loans:
Fleet Real Estate Capital, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Address for Notices:
Fleet Real Estate Capital, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
NATIONSBANK, N.A.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Applicable Funding Office for Loans:
NationsBank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
NationsBank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Mail Code FL7-950-15-03
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
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SUNTRUST BANK, MIAMI, N.A.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Applicable Funding Office for Loans:
SunTrust Bank, Miami, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Address for Notices:
SunTrust Bank, Miami, N.A.
Mail Code 1042
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
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SCHEDULE 1.02
Defined Terms
The following terms shall have the following meanings (all terms defined in the
singular to have the same meanings when used in the plural and VICE VERSA):
"ACCOUNTANTS" shall mean Price ▇▇▇▇▇▇▇▇▇▇ ▇▇ or another
accounting firm of national reputation or, with the approval of the Agent, any
other certified public accountants selected by the Company, which approval shall
not be unreasonably withheld or delayed, if such other certified public
accountants are nationally recognized.
"ACCRUED CONSTRUCTION TERM YIELD": as defined in Section
3.03(c) of the Credit Agreement.
"ACQUISITION/CONSTRUCTION AGENT": the Company, as acquisition
and construction agent for the Lessor with respect to the Facility pursuant to
the Agency Agreement.
"ADJUSTED EBITDA" shall mean, in respect of the Company or any
Person, as the case may be, EBITDA of the Company and the Guarantors on a
consolidated basis or such Person for the twelve-month period then ended less
(i) EBITDA for each Acquired Company for such fiscal period plus (ii) EBITDA for
each Acquired Company on a pro forma basis for the twelve months preceding the
end of such fiscal period, provided, however, that the EBITDA for Acquired
Companies may be adjusted, for certain one-time savings or other acquisition
related costs identified to and approved in each instance by the Agent such as
NORMALIZATION of owners' salaries and adjustments for certain non cash charges.
"ADJUSTED LIBO RATE": with respect to any Interest Period or
Yield Period, a rate per annum equal to the quotient obtained (rounded upwards,
if necessary, to the next higher 1/16th of 1%) by dividing (i) the applicable
LIBO Rate for such Interest Period or Yield Period by (ii) 1.00 minus the
Eurodollar Reserve Percentage.
"ADVANCE NOTICE": in connection with any Borrowing or any
Lessor Investment Payment, notice given by telecopy or telephone (and if by
telephone, confirmed promptly by telecopier) to be received by the Agent not
later than 12:00 noon, prevailing Eastern time, on the third (3rd) Business Day
before the requested date of such Borrowing, or Lessor Investment Payment or
continuation.
"AFFILIATE": with respect to the Lessor, the Company
or the Guarantors, as the case may be, (i) any Person that,
directly or indirectly, through one or more intermediaries,
controls the Lessor, the Company or the Guarantors, as the case
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may be (a "CONTROLLING PERSON"), (ii) any Person (other than the Lessor, the
Company, the Guarantors) which is controlled by or is under common control with
a Controlling Person, or (iii) any Person (other than a Subsidiary) of which the
Company owns, directly or indirectly, 20% or more of the common stock or
equivalent equity interests. As used herein, the term "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
ownership of voting securities, by contract or otherwise.
"AGENT": Fleet National Bank, a national banking association,
in its capacity as agent for the Lenders and the Lessor (with respect to
payments pertaining to the Lessor Investment), together with its successors in
such capacity.
"AGENCY AGREEMENT": the Agency, Indemnity and Support
Agreement, of even date with the Credit Agreement, between the Lessor and the
Company, as Acquisition/Construction Agent, as amended, supplemented or
otherwise modified from time to time.
"AGGREGATE CONSTRUCTION COSTS": the aggregate amount of all
Facility Costs, including all acquisition costs for the Improvements and
Capitalized Expenses, EXCLUDING, HOWEVER, the cost of the acquisition of the
Site.
"AGGREGATE LOAN COMMITMENTS": the sum of the Aggregate Tranche
A Loan Commitments and the Aggregate Tranche B Loan Commitments, as the same may
be reduced at the request of the Company in accordance with Section 2.03 of the
Credit Agreement.
"AGGREGATE TRANCHE A LOAN COMMITMENTS": the lesser of (i) an
amount equal to 85% of the Facility Cost, or (ii) $10,200,000, as the same may
be reduced at the request of the Company in accordance with Section 2.03 of the
Credit Agreement.
"AGGREGATE TRANCHE B LOAN COMMITMENTS": the lesser of (i) an
amount equal to 12% of the Facility Cost, or (ii) $1,440,000, as the same may be
reduced at the request of the Company in accordance with Section 2.03 of the
Credit Agreement.
"AGGREGATE USE CHARGE": for any Rental Period, the sum of the
Daily Use Charges for that Rental Period.
"APPLICABLE FUNDING OFFICE": for each Lender or the Lessor,
the funding office of such Lender or the Lessor (or an affiliate thereof)
designated for any Loan or Lessor Investment Payment on the signature pages of
the Credit Agreement (or in an Assignment and Acceptance executed by such Lender
pursuant to Section 11.06 of the Credit Agreement) or such other offices of such
Lender or the Lessor (or of an affiliate of such Lender or the Lessor) as such
Lender or the Lessor may from time to time specify to the Agent, the Lessor and
the Company as the office by which its Loans or Lessor Investment Payments, as
applicable, are to be made and maintained.
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"APPLICABLE MARGIN": with respect to (i) the Tranche A Loans,
the "Applicable Tranche A Loan Margin", (ii) the Tranche B Loans, the
"Applicable Tranche B Loan Margin", and (iii) the Lessor Investment, the
"Applicable Lessor's Investment Margin", respectively, as each of those terms is
defined in the Pricing Schedule.
"APPLICABLE PERMIT": any Permit that is or may be necessary to
own, renovate, construct, install, start-up, test, maintain, modify, expand,
remove, operate, lease or use all or any part of the Facility (including,
without limitation, the Site or any business conducted on or related to the
Facility or the Site) or any portion thereof, and the failure to obtain or
maintain which would have a Material Adverse Effect.
"APPROVED APPRAISAL": an appraisal, ordered by the Agent, but
at the Company's cost, from an independent MAI appraiser or appraisers
satisfactory to the Agent, the Lessor and the Lenders, in their sole discretion:
(a) on or prior to the Closing Date, to the effect that as of the Closing Date
(i) the fair Market Value of the Facility does not exceed the Facility Cost
attributable thereto and applied to the acquisition thereof and (ii) the fair
Market Value of the Facility on an "as-completed" basis in accordance with the
Facility Plan is not estimated to be less than the projected Facility Cost and
specifying such estimated fair Market Value, and setting forth the estimated
fair Market Value of the Facility on an "as completed" basis in accordance with
the Facility Plan as of the expiration of the Basic Term; and (b) on the
Completion Date, "bringing down" the Approved Appraisal by the original
appraiser as of the Completion Date with respect to the Facility upon Completion
showing fair Market Value of the Facility; in each case which (1) complies with
Title XI of the Financial Institutions Reform, Recovery and Enforcement Act of
1989, as amended, 12 U.S.C. 3331, ET SEQ., and The Regulations and Statements of
General Policy on Appraisals promulgated by the Federal Deposit Insurance
Corporation, 12 C.F.R. Part 32, as amended, and (2) is performed by a
state-certified real estate appraiser certified under the laws of any State.
"ASSIGNMENT AND ACCEPTANCE": an Assignment and Acceptance
Agreement, in the form of EXHIBIT D to the Credit Agreement entered into by a
Lender and an Eligible Assignee.
"AUTHORIZED OFFICERS": with respect to the Company or the
Guarantors, the officers whose signatures and incumbency shall have been
certified to the Agent and the Lessor in a certificate certified by the
Secretary or an Assistant Secretary of the Company or the Guarantors, as
applicable, in form and substance reasonably satisfactory to the Agent.
"BANKING AUTHORITY": as defined in Section 5.02 of the Credit
Agreement.
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"BASE RATE": for any day, the rate per annum equal to the
higher as of such day of (I) the Prime Rate, and (II) one-half of one percent
above the Federal Funds Rate. For purposes of determining the Base Rate for any
day, changes in the Prime Rate shall be effective on the date of each such
change.
"BASIC RENT": with respect to any Rental Period, the Aggregate
Use Charge for such Rental Period.
"BASIC TERM": with respect to the Lease, and subject to the
terms and conditions set forth therein and in the other Transaction Documents,
the period commencing on the Completion Date, and ending on the earlier to occur
of (i) the Option Date, (ii) the Cancellation Date, (iii) a Non-Completion
Event, or (iv) the Scheduled Lease Termination Date.
"BORROWING": a borrowing consisting of Loans to the Lessor
made on the same day by the Lenders.
"BUSINESS DAY": (i) for all purposes other than as set forth
in clause (ii) below, any day except Saturday, Sunday or other day on which
commercial banks in New York, New York and Boston, Massachusetts are authorized
or required by law or other government action to close, and (ii) with respect to
all notices and determinations in connection with, and payments of principal of
and interest on, the Loans and payments of, any day that is a Business Day
described in clause (i) above and that is also a day for trading by and between
banks in the London interbank eurodollar market.
"CANCELLATION DATE": as defined in Section 15(b) of the Lease.
"CANCELLATION EVENT": as defined in Section 15(b) of the
Lease, and shall include a Loss Event.
"CAPITAL EXPENDITURES": means all expenditures made in respect
of the cost of any fixed asset or improvement, or replacement, substitution, or
addition thereto, having a useful life of more than one (1) year, including,
without limitation, Capitalized Expenses and those arising in connection with
the direct or indirect acquisition of such assets by way of increased product or
service charges or offset items or in connection with capital leases, but
excluding expenditures in respect of Permitted Acquisitions.
"CAPITAL LEASE OBLIGATIONS" : as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal property which
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting Standards Board) and,
for purposes of this Agreement, the amount of such
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obligations shall be the capitalized amount thereof, determined in accordance
with GAAP (including such Statement No. 13).
"CAPITALIZATION" shall mean, at any date, the sum, calculated
in accordance with GAAP, of total stockholders equity of the Company plus Total
Funded Debt.
"CAPITALIZED EXPENSES": all acquisition, design and
construction costs and all legal, architectural, engineering and other
professional fees and expenses, brokerage fees, appraisal fees, environmental
assessment fees, title insurance, survey expenses, mortgage recording fees and
taxes, intangibles taxes, and other "soft costs" of a nature ordinarily and
reasonably incurred in connection with the acquisition, design, engineering,
construction, assembly, installation, testing, improvement and completion of
property substantially similar to the Facility (including soft and hard costs
previously incurred not to exceed 10% of all Facility Cost) and all Basic Rent,
commitment and other fees accrued prior to the Completion Date. "Capitalized
Expenses" shall not include fixtures, furniture or equipment included in,
attached to or otherwise relating to the Site or the Facility.
"CAPITAL STOCK": any nonredeemable capital stock of the
Company or any Consolidated Subsidiaries (to the extent issued to a Person other
than the Guarantors or the Company) whether common or preferred.
"CASH COLLATERAL": as defined in Section 2.02(c) of the Credit
Agreement.
"CASUALTY OCCURRENCE": any of the following events in respect
of the Facility, (i) any material loss of the Facility or material loss of use
thereof which does not constitute a Loss Event, or (ii) the condemnation,
confiscation or seizure of, or requisition of title to or use of, any material
part of the Facility which action does not constitute a Loss Event.
"CERCLA": the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. ss. 9601 et. seq. and its implementing
regulations and amendments.
"CERCLIS": the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
"CHANGE OF CONTROL": (i) any Person or two or more Persons
acting in concert shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 25% or more of the outstanding shares of the voting
stock of the Company; or (ii) as of any date a majority of the Board of
Directors of the Company consists of individuals who were not
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either (a) directors of the Company as of the corresponding date of the previous
year, (b) selected or nominated to become directors by the Board of Directors of
the Company of which a majority consisted of individuals described in clause
(a), or (c) selected or nominated to become directors by the Board of Directors
of the Company of which a majority consisted of individuals described in clause
(a) and individuals described in clause (b).
"CHANGE OF LAW": as defined in Section 5.02 of the Credit
Agreement.
"CLOSING DATE": December 9, 1997.
"CODE": the Internal Revenue Code of 1986, as amended, and any
successor Federal tax code.
"COLLATERAL": as defined in Section 26 of the Lease.
"CO-LESSEE": as defined in Section 21(b) of the Lease.
"COMMITMENT": as to each Lender, an amount equal to such
Lender's Loan Commitments and as to the Lessor, the amount of its Lessor
Investment Commitment, as applicable, then in effect.
"COMPANY": The Vincam Group, Inc., a Florida corporation, and
its successors.
"COMPLETION": the occurrence and satisfaction of all of the
events and conditions described on SCHEDULE 1.02(B) to the Credit Agreement on a
single date to the reasonable satisfaction of the Majority Lenders.
"COMPLETION CERTIFICATE": a certificate of the Company in
substantially the form of EXHIBIT A to the Agency Agreement, certifying that
Completion of the Facility has occurred.
"COMPLETION COSTS": at any time the sum of (x) the aggregate
amount of Construction Costs (including acquisition costs, except with respect
to the Site, and soft costs) expended or incurred as of the time of a
Non-Completion Event and which it will be necessary thereafter to expend in
order to achieve Completion, plus (y) all Impositions thereon.
"COMPLETION COSTS PAYMENT": an amount, which is payable upon
the occurrence of a Non-Completion Event, equal to the sum of (i) the
acquisition cost of the Site, (ii) the aggregate amount of all Completion Costs,
up to but not in excess of the Completion Costs Payment Limitation, and (iii)
all Supplemental Rent and other amounts owing by the Company under the
Transaction Documents (other than any Completion Costs in excess of the
Completion Costs Payment Limitation).
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"COMPLETION COSTS PAYMENT LIMITATION" means an amount equal to
89% of the Aggregate Construction Costs.
"COMPLETION DATE": the earlier to occur of (i) the date on
which the Company, as Project Agent for the Lessor, delivers the Completion
Certificate and (ii) the date that is twelve (12) months after the Lease
Commencement Date.
"COMPLETION DATE APPRAISED AMOUNT": the Fair Market Value of
the Facility as set forth in the bring-down of the Approved Appraisal delivered
on the Completion Date as required by clause (b) of the definition of Approved
Appraisal.
"CONSOLIDATED SUBSIDIARY": a Subsidiary, the accounts of which
are customarily consolidated with those of the Company for the purpose of
reporting to stockholders of the Company, or to the Agent and each of the
Lenders, or, in the case of a recently acquired Subsidiary, the accounts of
which would, in accordance with the Company's regular practice, be so
consolidated for that purpose.
"CONSOLIDATED TOTAL ASSETS": at any time, the total assets of
the Company and its Consolidated Subsidiaries, determined on a consolidated
basis, as set forth or reflected on the most recent consolidated balance sheet
of the Company and its Consolidated Subsidiaries, prepared in accordance with
GAAP.
"CONSTRUCTION TERM": the period commencing on the Lease
Commencement Date and ending on the Completion Date.
"CONSTRUCTION TERM YIELD": all Yield that shall accrue during
the Construction Term with respect to the Lessor Investment.
"CONTRACTUAL OBLIGATION": any provision of any security issued
by the Company or of any agreement, instrument or other undertaking to which the
Company is a party or by which it or any of its property is bound.
"CONTRIBUTION AGREEMENT" means the Contribution Agreement of
even date herewith in substantially the form of EXHIBIT G to the Credit
Agreement to be executed by the Borrower and the Guarantors.
"CONTROLLED GROUP": all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company, are treated as a single
employer under Section 414 of the Code.
"CREDIT AGREEMENT": the Credit and Investment Agreement, dated
as of the Closing Date, among the Company, the Lessor, the Agent and the
Lenders, as amended, supplemented, renewed, extended or otherwise modified from
time to time.
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"CURRENT ASSETS": means, as of any applicable date, all
amounts that should, in accordance with GAAP, be included as current assets on
the consolidated balance sheet of the Company as at such date.
"CURRENT LIABILITIES": means, as of any applicable date, all
amounts that should be, in accordance with GAAP, be included as current
liabilities on the consolidated balance sheet of the Company and the Guarantors,
as at such date.
"DAILY USE CHARGE": for any day (whether or not a Business
Day) during the Lease Term the sum of (i) all liabilities of the Lessor for
interest on the Loans and Yield (excluding Accrued Construction Term Yield), but
including, without limitation, all Yield accruing during the Basic Term on the
Lessor Investment and payments of Accrued Construction Term Yield during the
Basic Term) accruing for such day pursuant to and in accordance with the Credit
Agreement, and (ii) all liabilities of the Lessor for commitment and other fees
accruing for such day pursuant to the Credit Agreement.
"DEFAULT": any condition or event that constitutes an Event of
Default or that with the giving of notice or the lapse of time or both would,
unless cured or waived, become an Event of Default.
"DEFAULT RATE": on any day, with respect to (i) the Tranche A
Loans, the "Default Tranche A Loan Margin", (ii) the Tranche B Loans, the
"Default Tranche B Loan Margin", and (iii) the Lessor Investment, the "Default
Investment Margin", respectively, as each of those terms is defined in the
Pricing Schedule.
"DOLLARS" and "$": dollars in lawful currency of the United
States of America.
"EBITDA": for any fiscal period,-an amount equal to Net Income
for such period, plus each of the following (without duplication), to the extent
deducted in computing such Net Income: (i) Interest Expense, (ii) taxes accrued,
(iii) depreciation, and (iv) amortization of goodwill and other intangibles.
"ELIGIBLE ASSIGNEE": with respect to any particular assignment
under Section 11.06 of the Credit Agreement, any bank or other financial
institution consented to by the Company and the Agent if such bank or other
financial institution is not already a Lender or an affiliate of a Lender;
PROVIDED that neither the Agent's nor the Company's consent shall be
unreasonably withheld and, provided, further, that such consent of the Company
shall not be required if an Event of Default is in existence.
"ENVIRONMENTAL ASSESSMENT": collectively, a Phase 1 report
conducted by an independent engineering firm reasonably
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acceptable to the Lessor and the Agent in scope and substance satisfactory to
the Lessor and the Agent, and in any event satisfying the minimum standards set
forth in ASTME 1527-94 (and, if recommended in or indicated by the Phase 1
report, a Phase 2, environmental soil test or other environmental report or
reports), reflecting compliance of the Facility in all material respects with
all applicable Environmental Requirements.
"ENVIRONMENTAL AUTHORITY": any foreign, federal, state, local
or regional Governmental Authority that exercises any form of jurisdiction or
authority under any Environmental Requirement.
"ENVIRONMENTAL AUTHORIZATIONS": all licenses, permits, orders,
approvals, notices, registrations or other legal prerequisites for conducting
the business of the Company or any Guarantor, or for the uses and activities of,
on or relating to the Facility, required by any Environmental Requirement.
"ENVIRONMENTAL DAMAGES": any and all claims, losses, costs,
damages, penalties and expenses which are incurred at any prior or subsequent
time as a result of the existence or release of Hazardous Materials upon, about
or beneath the Facility or migrating or threatening to migrate to or from the
Facility, or the existence of a violation of Environmental Requirements
pertaining to the Facility, regardless of whether the existence of such
Hazardous Materials or the violation of Environmental Requirements arose prior
to the present ownership or operation of the Facility.
"ENVIRONMENTAL JUDGMENTS AND ORDERS": all judgments, decrees
or orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"ENVIRONMENTAL LIABILITIES": any liabilities or Liens, whether
accrued, contingent or otherwise, arising from and in any way associated with
any Environmental Requirements.
"ENVIRONMENTAL NOTICES": notice from any Environmental
Authority or by any other Person, of possible or alleged noncompliance with or
liability under any Environmental Requirement, including without limitation any
complaints, citations, demands or requests from any Environmental Authority or
from any other person or entity for correction of any violation of any
Environmental Requirement or any investigations concerning any violation of any
Environmental Requirement.
"ENVIRONMENTAL PROCEEDINGS": any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
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"ENVIRONMENTAL RELEASE": any actual or threatened release
defined in CERCLA or under any state or local environmental law or regulation.
"ENVIRONMENTAL REQUIREMENTS": any statue, rule, regulation,
ordinance, permit, license administration or judicial decision or order (whether
by consent or otherwise) or the requirement of law with respect to: (i) the
protection of human health and/or the environment; (ii) the existence, handling,
use, generation, treatment, storage, packaging, labelling, removal or
Environmental Release of Hazardous Materials on, under, about and/or from any
real property, including the Facility; and (iii) the effects on the environment
of any activity now, previously, or hereinafter conducted on any real property,
including the Facility. The Environmental Requirements shall include, but not be
limited to, the following: CERCLA; the Superfund Amendments and Reauthorization
Act, Public Law 99-499, 100 Stat. 1613; the Resource Conservation and Recovery
Act, 42 U.S.C. ▇▇.▇▇. 6901, ET SEQ.; the Toxic Substances Control Act, 15 U.S.C.
▇▇.▇▇. 2601, ET SEQ.; the Federal Water Pollution Control Act, 33 U.S.C. ▇▇.▇▇.
1251, ET SEQ.; the Clean Air Act, 42 U.S.C. ▇▇.▇▇. 7401, ET SEQ.; the
Occupational Safety and Health Act, 29 U.S.C. ▇▇.▇▇. 651, ET SEQ.; the Emergency
Planning and Community Right-To-Know Act of 1986, 42 U.S.C. ▇▇.▇▇. 11001, ET
SEQ.; the state and local analogies thereto, all as amended or superseded from
time to time; and any common-law doctrine, including but not limited to,
negligence, nuisance, strict liability, trespass, personal injury, or property
damage related to or arising out of the presence, Environmental Release or
exposure to a Hazardous Material; and all federal, state and local ordinances,
regulations, orders, writs and decrees.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time, or any successor law and the regulations
promulgated and rulings issued from time to time thereunder. Any reference to
any provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"EUROCURRENCY LIABILITIES": as defined in Regulation
D.
"EURODOLLAR RESERVE PERCENTAGE": for any day the percentage
(expressed as a decimal) that is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on loans made at the LIBO Rate is determined or any category of
extensions of credit or other assets which includes loans by a non-United States
office of any Lender to United States residents). The Adjusted LIBO Rate shall
be adjusted automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
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"EVENT OF DEFAULT": as defined in Section 9.01 of the Credit
Agreement or in Section 17 of the Lease.
"EXCESS AMOUNT FUNDED": as defined in Section 2.02(c) of the
Credit Agreement.
"EXCLUDED EQUIPMENT": any equipment, trade fixtures (which are
readily removable from the Site) and other items of personal property which (i)
are not purchased with the proceeds of Loans or Lessor Investment Payments and
(ii) are not replacements of or substitutions for property which was purchased
with the proceeds of Loans or Lessor Investment Payments.
"EXCLUDED PROPERTY": all real and tangible personal property
(but not any accounts, general intangibles or instruments or any proceeds of
accounts, general intangibles or instruments) subject to a lien or security
interest created by that certain Florida Real Estate Mortgage and Security
Agreement, dated November 2, 1993, as amended by that certain Addendum dated
November 2, 1993, and that certain Second Addendum dated November 2, 1993, made
by the Company in favor of Consolidated Bank, N.A., as in effect and delivered
to the Lenders on the date hereof, but not any subsequent amendments thereto.
"FACILITY": the collective reference to (i) the Lessor's fee
simple estate in the Site, (ii) the building and related enhancements and
improvements to be constructed on the Site in accordance with the Facility Plan,
together with all accessions thereto and replacements thereof, and together with
all accessories, equipment, parts and devices necessary to achieve Completion,
and all fixtures now or hereafter included in or attached to the Site, the
building and such enhancements and improvements and modifications, and (iii) all
plans, specifications, warranties and related rights and operating, maintenance
and repair manuals related thereto and all replacements of any of the above;
PROVIDED, HOWEVER, that the term "Facility" shall not include any of the
Excluded Equipment.
"FACILITY COST": an aggregate amount equal to the lesser of:
(i) the sum of (a) all costs associated with the Lessor's acquisition of a fee
simple estate in the Site, up to but not exceeding $2,600,000 and any
refinancing thereof, and (b) all of the capitalized costs and expenses of any
kind or character incurred to design, construct, install and implement the
Facility, including, without limitation, all Capitalized Expenses to be provided
by the Lenders, up to but not exceeding $9,400,000, plus all interest and Yield
capitalized pursuant to the Section 3.03(a) and (c) of the Credit Agreement; and
(ii) $12,000,000.
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"FACILITY PLAN": a substantially complete set architectural
and engineering plans and design specifications for the construction,
installation and completion of the Facility and list of Facility Plan documents
designated as SCHEDULE 1.02(A) to the Credit Agreement in the form furnished to
the Lessor and the Agent, and satisfactory to the Lessor, the Agent and the
Lenders, in their sole discretion, as the same may be amended, supplemented or
otherwise modified from time to time with the consent of the Agent.
"FEDERAL FUNDS RATE": for any day, the rate per annum (rounded
upward, if necessary, to the next higher 1/100th of 1%) 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 of New York on the Business Day next
succeeding such day, PROVIDED that (i) if the day for which such rate is to be
determined 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, and (ii) if
such rate is not so published for any day, the Federal Funds Rate for such day
shall be the average rate charged to the Agent on such day on such transactions,
as determined by the Agent.
"FINAL RENT PAYMENT": an amount determined as of the date
payment thereof is required equal to the sum of (i) the aggregate outstanding
principal amount of the Tranche A Loans, PLUS (ii) all accrued and unpaid fees
and interest on the Tranche A Loans and Tranche B Loans accrued through the end
of the Lease Term, PLUS (iii) all unpaid Yield (including, without limitation,
all Accrued Construction Term Yield) accrued through the end of the Lease Term,
PLUS (iv) all other amounts owing by the Lessee or the Company under the
Transaction Documents (including in any event all unpaid Impositions accrued,
arising or payable in connection with the Facility or otherwise pursuant to the
Lease through or as at the end of the Lease Term, but excluding in any event the
unpaid principal amount of the Tranche B Loans and the Lessor Investment).
"FINANCIAL STATEMENTS DATE": December 31, 1996.
"FISCAL QUARTER": any fiscal quarter of the Company.
"FIXED CHARGES" shall mean, for any fiscal period, the sum of
(i) the amount of the scheduled installments of principal payable in respect of
Indebtedness of the Company and its Subsidiaries during such period, plus (ii)
Interest Expense for such period, plus (iii) the tax provision of the Company
and its Subsidiaries paid or required to be paid in cash for such period, plus
(iv) rental payments, plus (v) Capital Expenditures made by the Company and its
Subsidiaries during such period, plus (vi) any distribution of cash by the
Company to the holders of shares of capital stock of the Company other than the
distribution of cash in the aggregate amount of $700,000 to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ during May of 1996.
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"FISCAL YEAR": any fiscal year of the Company.
"FLEET": Fleet National Bank, a national banking association,
in its individual capacity, and its successors.
"FUNDED AMOUNT": the aggregate amount of principal, interest,
expenses and indemnities owing or to be owing by the Lessor to the Lenders, plus
the aggregate amount of the Lessor Investment, Yield (including all Yield and
Accrued Construction Term Yield), and all other amounts owing by the Lessor to
the Agent or the Lenders or the Lessor pursuant to the Credit Agreement or any
other Transaction Document.
"GAAP": generally accepted accounting principles in the United
States of America applied on a basis consistent with those which, in accordance
with Section 1.03 of the Credit Agreement, are to be used in making the
calculations for purposes of determining compliance by the Company with the
provisions of the Transaction Documents applicable thereto.
"GOVERNMENTAL APPROVAL": means any authorization, consent,
order, approval, license, lease, ruling, permit, tariff, rate, certification,
validation, exemption, filing or registration by or with, or notice to, any
Governmental Authority.
"GOVERNMENTAL AUTHORITY": to include the country, state,
county, city and political subdivisions in which any Person or any such Person's
property is located or that exercises valid jurisdiction over any such Person or
any such Person's property, and any court, agency, department, commission,
board, bureau or instrumentality of any of them including monetary authorities
that exercise valid jurisdiction over any such Person or any such Person's
property. Unless otherwise specified, all references to Governmental Authority
herein shall mean a Governmental Authority having jurisdiction over, where
applicable, the Company, the Guarantors, the Site, the Facility, the Lessor, the
Agent, any Lender, any Applicable Funding Office or any Transaction Document.
"GOVERNMENTAL REQUIREMENT": any law, statute, code, ordinance,
order, determination, rule, regulation, judgment, decree, writ, order,
injunction, franchise, permit, certificate, license, authorization or other
direction or requirement (whether or not having the force of law), including,
without limitation, Environmental Requirements, and occupational, safety and
health standards or controls, of any Governmental Authority.
"GUARANTEE": with respect to any Person, any obligation,
contingent or otherwise, of such Person directly or indirectly guaranteeing any
Indebtedness or other obligation of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to secure, purchase or pay (or advance or supply
funds for the purchase or payment of) such
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Indebtedness or other obligation of such other Person (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to provide collateral security, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Indebtedness
or other obligation of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part), PROVIDED that the term Guarantee
shall not include endorsements for collection or deposit in the ordinary course
of business. The term "Guarantee" used as a verb has a corresponding meaning.
"GUARANTORS": any one or more or all of the following, as the
context shall require: (i) Vincam Human Resources, Inc.; Vincam Human Resources,
Inc. I; Vincam Human Resources, Inc. II; Vincam Human Resources, Inc. III;
Vincam Human Resources, Inc. IV; Vincam Human Resources, Inc. V; Vincam Human
Resources, Inc. VI; Vincam Human Resources, Inc. XII; Vincam Human Resources of
Michigan, Inc.; Vincam Occupational Health Systems, Inc.; Personnel Resources,
Inc.; Vincam Insurance Services, Inc.; Vincam Practice Management, Inc.;
American Pediatric Systems, Inc.; and Psych/Care, Inc., each of which is a
Florida corporation (collectively, the "Florida Subsidiary Guarantors");
Vincam/Staff Administrators, Inc. (d/b/a Staff Administrators, Inc.),
Vincam/Staff Administrators of Western Colorado, Inc. (d/b/a Staff
Administrators of Western Colorado, Inc.); Staff Administrators of CO, Inc., and
Staff Administrators of California, Inc., each of which is a Colorado
corporation; Vincam/Amstaff, Inc., RDM, Inc., Amstaff PEO, Inc., American
Staffing, Inc., Addison, Inc., Amstaff Professional Services, Inc., Amstaff H.r.
Services, Inc., Amstaff Management Services, Inc., Amstaff H.R.M., Inc., A.E.
Service Group, Inc., Staff Resource Services, Inc., Amstaff Employer Resources,
Inc., Amstaff PCS, Inc., Staffing Group Enterprises, Inc., A.M. Risk Management
Company, and ATCO PEO, Inc., each of which is a Michigan corporation; and
Vincam/Staffing Network, Inc., a New Hampshire corporation; and (ii) any
Subsidiary which becomes a Guarantor pursuant to Section 8.33 of the Credit
Agreement.
"GUARANTY (LESSEE)": the Guaranty (Lessee), of even date with
the Credit Agreement, in substantially the form of EXHIBIT I to the Credit
Agreement, from the Guarantors to the Lessor and the Agent for the benefit of
the Lessor, the Agent and the Lenders, pursuant to which the Guarantors, as
primary obligors, jointly and severally guarantee and are liable for all of the
Lessee's obligations under all Transaction Documents, as amended, supplemented
or otherwise modified from time to time.
"GUARANTY (LESSOR)": the Guaranty (Lessor), of even date with
the Credit Agreement, from the Company to the Agent for the benefit of the Agent
and the Lenders, pursuant to which the Company guarantees, as primary obligor,
all obligations of (but in no event obligations greater than those of) the
Lessor to the
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Agent and the Lenders under the Credit Agreement and the Notes (except for
payment of the principal amount of the Tranche B Loans), as amended,
supplemented or otherwise modified from time to time.
"HAZARDOUS MATERIALS": to include, without limitation, (i)
solid or hazardous waste, as defined in the Resource Conservation and Recovery
Act of 1980, 42 U.S.C. ss. 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (ii)
"hazardous substance", "pollutant", or "contaminant" as defined in CERCLA, or in
any applicable federal, state or local law or regulation, (iii) gasoline, or any
other petroleum product or by-product, including, crude oil or any fraction
thereof, (iv) insecticides, fungicides, or rodenticides, as defined in the
Federal Insecticide, Fungicide, and Rodenticide Act of 1975, or in any
applicable federal, state or local law or regulation, as each such Act, statute
or regulation may be amended from time to time, or (v) any toxic or hazardous
materials, wastes, polychlorinated biphenyls ("PCBs"), lead-containing
materials, asbestos or asbestos-containing materials, urea formaldehyde,
radioactive materials, pesticides, the discharge of sewage or effluent, or any
other materials or substances defined as or included in the definition of
"hazardous materials," "hazardous waste," "contaminants" or similar terms under
any Environmental Requirement.
"HIGHEST LAWFUL RATE": with respect to each Lender and the
Lessor, the maximum non-usurious interest rate or Yield, as applicable, if any,
that at any time or from time to time may be contracted for, taken, reserved,
charged or received on the Notes, on the Lessor Investment or on other amounts
owing hereunder under laws applicable to such Lender and the Lessor which are
presently in effect or, to the extent allowed by law, under such applicable laws
which may hereafter be in effect and which allow a higher maximum non-usurious
interest rate than applicable laws now allow.
"IMPOSITIONS": without duplication, as to any Person, (i) all
Taxes, assessments, levies, fees, water and sewer rents and charges, inspection
fees and other authorization fees and all other governmental charges, general
and special, ordinary and extraordinary, foreseen and unforeseen, of every
character (including all penalties and interest thereon) that, at any time prior
or subsequent to the Closing Date, are imposed or levied upon or assessed
against or may be or constitute a Lien upon such Person or such Person's
Property, or that arise in respect of the ownership, operation, occupancy,
possession, use, non-use, condition, leasing or subleasing of such Person's
Property; (ii) all charges, levies, fees, rents or assessments for or in respect
of utilities, communications and other services rendered or used on or about
such Person's Property; (iii) payments required in lieu of any of the foregoing;
but excluding any penalties or fines imposed on the Lessor, the Agent or any
Lender, respectively, for violation by it of any banking laws or
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securities law; and (iv) any and all taxes, recording fees and other charges
(including penalties and interest) relating to or arising out of the execution,
delivery or recording of any of the Transaction Documents for the amounts
evidenced, secured or referred to be paid thereby, including without limitation,
documentary stamp taxes, intangible taxes, recording fees and sales, use
transfer, franchise and rent taxes.
"INDEBTEDNESS": of any Person at any date shall mean, (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (excluding current trade liabilities incurred in
the ordinary course of business and payable in accordance with customary
practices, but including any class of capital stock of such Person with fixed
payment obligations or with redemption at the option of the holder), or which is
evidenced by a note, bond, debenture or similar instrument, (b) all obligations
of such Person under leases that should be treated as capitalized leases in
accordance with GAAP, (c) all obligations of such Person in respect of
acceptances issued or created for the account of such Person, and all
reimbursement obligations (contingent or otherwise) of such Person in respect of
any letters of credit issued for the account of such Person to the extent not
secured by cash and without duplication of any underlying Indebtedness, (d) all
liabilities secured by any Lien on any property owned by such Person even though
Such Person has not assumed or otherwise become liable for the payment thereof,
and (e) without duplication, all Guarantees.
"INDEMNIFIED PARTY": as defined in Section 11.03(b) of the
Credit Agreement.
"INDEMNIFIED RISKS": as defined in Section 11.03(b) of the
Credit Agreement.
"INITIAL FUNDING DATE": the Closing Date, or such later date
on which the conditions precedent set forth in Sections 6.01 and 6.02 of the
Credit Agreement have been satisfied.
"INITIAL LOANS": the initial Loans made pursuant to Section
2.01 of the Credit Agreement on or after the Initial Funding Date.
"INSURANCE REQUIREMENTS": means the requirements set
forth in Section 14 of and SCHEDULE 14 to the Lease.
"INTELLECTUAL PROPERTY": as defined in Section 7.01(t)
of the Credit Agreement.
"INTEREST EXPENSE": for any fiscal period, the sum (determined
without duplication) of the aggregate amount of interest required to be paid in
cash during such period on Indebtedness of the Company and its Subsidiaries (on
a consolidated basis), including the interest portion of payments under Capital
Lease Obligations and any capitalized interest.
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"INTEREST PERIOD": with respect to each Loan, the period
beginning on the date of such Loan and ending on the numerically corresponding
date (or, if applicable, last calendar date) three months thereafter and,
thereafter, each subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the numerically corresponding date (or,
if applicable, last calendar date) three months thereafter; PROVIDED, HOWEVER,
that:
(i) the duration of any Interest Period that commences before
the Scheduled Lease Termination Date and would otherwise end after the
Scheduled Lease Termination Date shall end on the Scheduled Lease
Termination Date;
(ii) the duration of the initial Interest Period with respect
to each Loan shall end on the first Quarterly Date occurring after the
date of such Loan; and
(iii) if the last day of such Interest Period would otherwise
occur on a day that is not a Business Day, such last day shall be
extended to the next succeeding Business Day, EXCEPT if such extension
would cause such last day to occur in a new calendar month, then such
last day shall occur on the next preceding Business Day.
"INVESTMENTS": means, with respect to any Person (the
"Investor" ), any investment by the Investor in any other Person, whether by
means of share purchase, capital contribution, purchase or other acquisition of
a partnership or joint venture interest, loan, time deposit, demand deposit or
otherwise.
"JUDGMENT": any judgment, decree, writ, order, determination,
injunction, rule or other direction or requirement of any arbitrator or any
court, tribunal or other Governmental Authority.
"LEASE": the Lease Agreement, of even date with the Credit
Agreement, as amended, supplemented or otherwise modified from time to time,
pursuant to which the Company, as Lessee, has agreed to lease the Facility on
and after the Lease Commencement Date for the Permitted Use in accordance with
the terms and conditions set forth in the Lease.
"LEASE COMMENCEMENT DATE": the Closing Date.
"LEASE TERM": the period of time commencing on the Lease
Commencement Date and ending on the earlier to occur of the (i) the Option Date,
(ii) the Cancellation Date and (iii) the Lease Termination Date.
"LEASE TERMINATION DATE": the earlier to occur of (i) the
fifth (5th) Business day following the date the Construction Term expires if a
Non-Completion Event has occurred or the Basic Term does not commence upon the
expiration of the Construction Term for any reason, (ii) the Scheduled Lease
Termination Date or
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(iii) the fifth (5th) Business Day following the declaration by the Agent and/or
the Lessor of an Event of Default pursuant to Section 15(a)(i)(b) of the Lease.
"LENDER": any Person who from time to time is or becomes a
Tranche A Lender or a Tranche B Lender; collectively, the "LENDERS".
"LESSEE": the Company in its capacity as Lessee under the
Lease and any successor or permitted assign in such capacity.
"LESSOR": Fleet Real Estate, Inc. and any successor permitted
by the terms of the Credit Agreement and the Lease.
"LESSOR INVESTMENT": the aggregate outstanding amount from
time to time of the Lessor Investment Payments made by the Lessor.
"LESSOR INVESTMENT COMMITMENT": as to the Lessor, its
commitment to make Lessor Investments in an amount equal to the Lessor
Investment Commitment then in effect as set forth on EXHIBIT E to the Credit
Agreement.
"LESSOR INVESTMENT PAYMENT": an advance in respect of the
Lessor Investment to be made by the Lessor pursuant to Section 2.01(b) of the
Credit Agreement.
"LESSOR MORTGAGE": the Mortgage, Assignment of Leases and
Security Agreement executed by the Lessor and delivered to the Agent, for the
benefit of the Agent and the Lenders, as amended, supplemented, or otherwise
modified from time to time.
"LIBO RATE": with respect to any Loan for the applicable
Interest Period therefor or any Lessor Investment Payment or the Lessor
Investment, as the case may be, for the applicable Yield Period therefor, or any
other amount, (a) the rate per annum determined on the basis of the offered rate
for deposits of three months in Dollars of amounts equal or comparable to the
principal amount of such Loan or the amount of such Lessor Investment Payment or
the Lessor Investment, as the case may be, or any such other amount, as
applicable, which rates appear on Telerate Page 3750 as of 11:00 A.M., London
time, two Business Days prior to the first day of such Interest Period, PROVIDED
that it will be the arithmetic average (rounded upward, if necessary, to the
next higher 1/16th of 1%) of such offered rates; (b) if no such offered rates
appear on such page, the "LIBO Rate" for such Interest Period or Yield Period,
as applicable, will be the arithmetic average (rounded upward, if necessary, to
the next higher 1/16th of 1%) of rates quoted by not less than two major banks
in New York City, selected by the Agent, at approximately 10:00 A.M., New York
City time, two Business Days prior to the first day of such Interest Period or
Yield Period, as applicable, for deposits in Dollars offered to leading European
banks for a period comparable to such Interest Period or Yield Period, as
applicable, in an amount comparable to
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the principal amount of such Loan or the amount of the Lessor Investment, as the
case may be, or any such other amount.
"LIEN": with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest, security
title, preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Indebtedness or a
Guarantee, whether by consensual agreement or by operation of statute or other
law, or by any agreement, contingent or otherwise, to provide any of the
foregoing. For the purposes of this definition, each of the Company and any
Subsidiary thereof shall be deemed to own subject to a Lien any asset which it
has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
"LOAN": any Tranche A Loan or Tranche B Loan made by the
Lenders pursuant to Section 2.01(a) of the Credit Agreement; the Tranche A Loans
and/or Tranche B Loans; collectively, as the context shall require, "LOANS."
"LOAN COMMITMENT": as to each Lender, an amount equal to the
sum of such Lender's Tranche A Loan Commitment and Tranche B Loan Commitment
then in effect.
"LOAN PERCENTAGE SHARE": as to each Lender, the percentage of
the Tranche A Loans and/or Tranche B Loans and the Tranche A Loan Commitment
and/or Tranche B Loan Commitment, as applicable, to be provided by such Lender
under the Credit Agreement as indicated on EXHIBIT G to the Credit Agreement, as
modified from time to time to reflect any assignments permitted by Section
11.06(b) of the Credit Agreement.
"LOSS EVENT": any of the following events in respect of the
Facility: (i) the total loss of the Facility or the total loss of use thereof
due to destruction, damage beyond repair or rendition of the Facility
permanently unfit for normal use for any reason whatsoever; (ii) any damage to
the Facility which results in an insurance settlement with respect to the
Facility on the basis of a total loss; (iii) the permanent condemnation,
confiscation or seizure of, or requisition of title to or use of, all or
substantially all of the Facility including, but not limited to, a permanent
taking by eminent domain of such scope that the untaken portion of the Facility
is insufficient to permit the restoration of the Facility for continued use in
the Company's business or that causes the remaining portion of the Facility to
be incapable of being restored to a condition that would permit the remaining
portion of the Facility (without the portion of the Facility taken by eminent
domain) to continue to have the capacity and functional ability to perform on a
continuing basis (subject to normal interruptions in the ordinary course of
business for maintenance, inspection, service, repair and testing) and in
commercial operation, the function for which
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the Facility (as a whole) was designed as specified in the Facility Plan or a
temporary taking of such nature for a period exceeding 180 consecutive days; or
(iv) the occurrence of any event or the discovery of any condition in, on,
beneath or involving the Facility or any portion thereof (including, but not
limited to the presence of hazardous substances or the violation of any
applicable Environmental Requirement) that would have a material adverse effect
on the use, occupancy, possession, condition, value or operation of the Facility
or any portion thereof, which event or condition requires remediation (A) the
cost of which is anticipated, in the opinion of the Agent, in consultation with
an independent environmental engineering firm, to exceed 25% of the Termination
Value, and (B) that could not reasonably be expected to be completed
substantially in its entirety prior to the date that is 30 days prior to the
then-applicable Scheduled Lease Termination Date or is not actually completed
substantially in its entirety on or before the date that is 30 days prior to the
then-applicable Scheduled Lease Termination Date.
"MAJORITY LENDERS": at any time while no Loans are
outstanding, Lenders having at least fifty-one percent (51%) of the amount of
the Aggregate Loan Commitments and, at any time while Loans are outstanding,
Lenders holding at least fifty-one percent (51%) of the outstanding aggregate
principal amount of the Loans (without regard to any sale by a Lender of a
participation in any Loan under Section 11.06(f) of the Credit Agreement).
"MARGIN STOCK": "margin stock" as defined in Regulations U or
G of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
"MARKET VALUE": as defined in Section 323.2(f) of the
Regulations and Statements of General Policy on Appraisals promulgated by the
Federal Deposit Insurance Corporation, 12 C.F.R. ss. 323.2(f), as amended from
time to time.
"MATERIAL ADVERSE EFFECT": with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or not related, a
material adverse change in, or a material adverse effect upon, any of (i) the
financial condition, operations, business, or properties of the Company and its
Consolidated Subsidiaries taken as a whole, (ii) the rights and remedies of the
Agent or the Lenders under the Transaction Documents, or the ability of the
Lessor, the Company or any of the Guarantors to perform its respective
obligations under the Transaction Documents to which it is a party, as
applicable, (iii) the legality, validity or enforceability of any Transaction
Document, or (iv) the use, occupancy, possession, condition, value or operation
of the Facility.
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"MATURITY DATE": the earlier of (a) the Completion Date, in
the event the Basic Term does not commence for any reason, or (b) following the
commencement of the Basic Term, the earlier to occur of (i) the Option Date,
(ii) the Cancellation Date, or (iii) the Lease Termination Date.
"MULTIEMPLOYER PLAN": has the meaning set forth in Section
4001(a)(3) of ERISA.
"NET INCOME" or "NET LOSS" for any period in respect of which
the amount thereof shall be determined, shall mean the aggregate of the
consolidated net income (or net loss) after taxes for such period of the Company
and its Subsidiaries, determined in accordance with GAAP.
"NET WORTH" shall mean, at any date as of which the amount
thereof is to be determined, all assets that should, in accordance with GAAP, be
classified as assets on the consolidated balance sheet of the Company and its
Subsidiaries, MINUS total liabilities of the Company and its Subsidiaries
(determined on a consolidated basis in accordance with GAAP) at such date.
"NON-COMPLETION EVENT": the failure of both (i) Completion and
(ii) the commencement of the Basic Term to occur on or before the date that is
twelve (12) months after the Lease Commencement Date.
"NON-U.S. DOMESTIC LENDER": as defined in Section 4.06(b) of
the Credit Agreement.
"NOTES": collectively, the Tranche A Notes and the Tranche B
Notes.
"OPERATING PROFITS": as applied to any Person for any period,
the operating income of such Person for such period, as determined in accordance
with GAAP.
"OPERATIVE GUARANTIES": collectively (i) the Guaranty (Lessee)
and (ii) the Guaranty (Lessor).
"OPTION DATE": as defined in Section 15(c) of the Lease.
"OTHER TAXES": all taxes (other than Taxes), assessments,
levies, fees, water and sewer rents and charges, inspection fees and other
authorization fees and all other governmental charges, general and special,
ordinary and extraordinary, foreseen and unforeseen, of every character
(including all penalties and interest thereon) and all recording fees and other
charges (including penalties and interest) relating to or arising out of (i) the
execution, delivery, recording or enforcement of any of the Transaction
Documents, whether for the amounts evidenced, secured or referred to be paid
thereby, or otherwise, or (ii) to the ownership, use, operation or transfer of
the Facility or any other Property or (iii) any other event or circumstance,
including without limitation,
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transfer taxes, documentary stamp taxes, intangible taxes, recording fees and
sales, use and rent taxes.
"OTHER TRANSACTION EXPENSES": as defined in Section 3.05(a)(1)
of the Credit Agreement.
"PBGC": the Pension Benefit Guaranty Corporation or any
successor thereto.
"PERMIT": any approval, consent, waiver, exemption, variance,
franchise, order, permit, authorization, right or license of or from any
Governmental Authority or other Person.
"PERMITTED ACQUISITION": an acquisition which satisfies the
following requirements: (A) if it involves a merger or consolidation, upon the
consummation of such merger or consolidation, the surviving party shall be the
Company or a Subsidiary of the Company; (B) at the time of such acquisition and
after giving effect thereto no Event of Default shall have occurred and be
continuing; and (C) the additional following conditions set forth below shall
have been satisfied with respect to the proposed acquisition:
(a) The following additional conditions must be satisfied with
respect to each Permitted Acquisition:
(i) Any company, business or Person to be
acquired shall be engaged primarily in the
same or a related line of business to the
then current business conducted by the
Company and shall have Adjusted EBITDA, with
adjustments reasonably acceptable to the
Agent for the twelve months immediately
preceding the proposed acquisition dates,
greater than $1.00; provided that in the case
of an asset acquisition such determination of
the Adjusted EBITDA in respect of such assets
shall be made on a proforma basis as if such
assets and related liabilities were assets
and related liabilities belonging to a Person
to be acquired by the Company;
(ii) The Company shall have demonstrated, to the
reasonable satisfaction of the Agent, that on
a pro forma basis and after giving effect to
the proposed acquisition, the Company will be
in compliance with the financial covenants
set forth in Sections 8.20 through 8.24,
inclusive.
(iii) All necessary consents, approvals, licenses,
permissions, registrations or validations of any
Governmental Authority or any Person required for the
consummation of the proposed
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acquisition shall have been obtained and
shall be in full force and effect;
(iv) Prior written consent of all of the Agent,
the Lessor and the Lenders (any request for
such consent to be acted upon by such parties
within five Business Days after their receipt
of such request, together with the other
materials and information referenced herein)
shall have been obtained with respect to: (A)
any individual acquisition involving cash
consideration (including assumption of any
Indebtedness, or the issuance of any Seller
Debt) in excess of $10,000,000 or total
consideration in excess of $25,000,000, and
(B) any proposed acquisition during any
fiscal year of the Company to the extent that
the aggregate cash consideration paid by the
Company (including assumption of any
Indebtedness, or the issuance of any Seller
Debt) for acquisitions completed during such
fiscal year exceeds $20,000,000 (taking into
account the proposed acquisition), unless
such proposed acquisition involves less than
$1,000,000 in cash consideration (including
assumption of any Indebtedness, or the
issuance of any Seller Debt);
(v) The provisions of Section 8.33 of the Credit
Agreement have been complied with, where
applicable; and
(vi) The Agent and its counsel shall have
received copies of the acquisition agreement
and such other documents and information
relating to the proposed acquisition as the
Agent or its counsel may reasonably request.
"PERMITTED LIENS": (i) with respect to the Lease or the
Facility (including without limitation, the Site) or any Property included in or
comprising the Facility or any portion thereof, any of the following:
(a) rights reserved to or vested in any Governmental Authority
by the terms of any right, power, franchise, grant, license, permit or
provision of law affecting the Facility to (1) terminate, or take any
other action which has the effect of modifying, such right, power,
franchise, grant, license, permit or provision of law, PROVIDED that
such termination or other action, when taken, shall not have resulted
in a Loss Event and shall not have had a Material Adverse Effect, or
(2) purchase, condemn, appropriate or recapture, or designate a
purchaser of, the Facility;
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(b) any Liens thereon for Impositions or Taxes and any Liens
of mechanics, materialmen and laborers for work or services performed
or materials furnished which (1) are not overdue, or (ii) are being
contested in good faith in the manner described in Section 13 of the
Lease;
(c) Liens of mechanics, materialmen and laborers for work or
services performed or materials furnished (1) existing during the
Construction Term and (2) in an aggregate amount not to exceed $50,000
at any time;
(d) rights reserved to or vested in any Governmental Authority
to control or regulate the use of such Property or to use the Facility
in any manner;
(e) in the case of the Site, encumbrances, easements, and
other similar rights existing on the Closing Date the existence or
exercise of which do not have a Material Adverse Effect; and
(f) any Liens created under the Transaction Documents and any
financing statements filed in connection therewith; and
(ii), with respect to any other Property, any of the following:
(a) Liens for taxes, fees, assessments and other governmental
charges not delinquent or being contested in good faith and by proper
proceedings, as to which adequate reserves are maintained on the books
of the Company and the Guarantors in accordance with GAAP;
(b) carriers', warehousemen's, mechanics, materialmen's or
similar liens imposed by law incurred in the ordinary course of
business in respect of obligations not overdue, or being contested in
good faith and by proper proceedings and as to which adequate reserves
with respect thereto are maintained on the books of the Company and the
Guarantors in accordance with GAAP;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other types of social security
legislation;
(d) security deposits made to secure the performance of
leases, licenses and statutory obligations incurred in the ordinary
course of business;
(e) Liens in favor of the Agent for the benefit of the
Lenders;
(f) existing Liens, if any, listed on SCHEDULE A hereto;
PROVIDED that no such Lien is spread to cover any additional property
after the date hereof, and that the
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principal amount of the Indebtedness secured thereby is not
increased, except to the extent permitted by Section 8.18(e)
of the Credit Agreement; and
(g) Liens securing Indebtedness for the purchase price of
property to the extent permitted by Section 8.18(g) of the Credit
Agreement and Liens securing Indebtedness assumed in connection with
Permitted Acquisitions to the extent permitted in Section 8.18(h) of
the Credit Agreement, PROVIDED that (i) each such Lien is given solely
to secure the purchase price of such property or such assumed
Indebtedness, as the case may be, does not extend to any other property
and (ii) in the case of any such purchase money Indebtedness (x) each
such Lien is given at the time of acquisition of such property, and (y)
the Indebtedness secured thereby does not exceed the lesser of the cost
of such property or its fair market value at the time of acquisition.
"PERMITTED USE": with respect to the Facility, the occupation
and use of the Site and the Improvements as a corporate office building in
compliance with all applicable Governmental Requirements and Insurance
Requirements.
"PERSON": an individual, a corporation, a partnership, an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or other
Governmental Authority.
"PLAN": at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and is either (i) maintained by a member of the
Controlled Group for employees of any member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding 5 plan years made contributions.
"PLEDGE AGREEMENT": collectively, the several Pledge
Agreements executed by the Lessee and Vincam Human Resources, Inc., Vincam Human
Resources of Michigan, Inc., Vincam/Staff Administrators, Inc. (d/b/a Staff
Administrators, Inc.), Vincam/Amstaff, Inc., RDM, Inc., Amstaff PEO, Inc. and
American Staffing, Inc. pursuant to the Revolving Credit Agreement, as each such
Pledge Agreement is amended by the Amendment to Stock Pledge Agreements dated of
even date with the Credit Agreement and delivered to the Agent, as assignee of
the Lessor, granting to the Lessor a first priority security interest in the
shares of capital stock of all of Subsidiaries, on a PARI PASSU basis with the
security interest therein of the "Agent" under the Revolving Credit Agreement,
for the benefit of the "Lenders" thereunder, and subject to the Pledged Stock
Intercreditor Agreement, as amended, supplemented, or otherwise modified from
time to time.
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"PLEDGED STOCK INTERCREDITOR AGREEMENT": the Intercreditor
Agreement between Fleet National Bank, as Agent under the Revolving Credit
Agreement, the Lessor, and the Company and Vincam Human Resources, Inc., Vincam
Human Resources of Michigan, Inc., Vincam/Staff Administrators, Inc. (d/b/a
Staff Administrators, Inc.), Vincam/Amstaff, Inc., RDM, Inc., Amstaff PEO, Inc.
and American Staffing, Inc. pertaining to the security interests in capital
stock of the Subsidiaries pledged pursuant to the Pledge Agreement, as amended,
supplemented, or otherwise modified from time to time.
"PRICING SCHEDULE" means Schedule 1.02(c) to the Credit
Agreement.
"PRIME RATE": that rate of interest so denominated and set by
Fleet Bank from time to time as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases used by Fleet Bank, and is set by
Fleet Bank as a general reference rate of interest, taking into account such
factors as Fleet Bank may deem appropriate, it being understood that many of
Fleet Bank's commercial or other loans are priced in relation to such rate, that
it is not necessarily the lowest or best rate actually charged to any customer
and that Fleet Bank may make various commercial or other loans at rates of
interest having no relationship to such rate.
"PRINCIPAL OFFICE": the principal office of the Agent and
Fleet Bank presently located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ or any
other office designated by Fleet Bank.
"PROFORMA FINANCIAL STATEMENTS": as defined in Section 7.1(d).
"PROCESS AGENT": as defined in Section 11.14(b) of the Credit
Agreement.
"PROGRESS REPORT": a Progress Report reflecting a comparison
of the actual renovation, construction and development of the Facility through
the date of such Progress Report with the schedule for such renovation,
construction and development set forth in the Facility Plan.
"PROPERTY": any kind of property or asset, whether real,
personal or mixed, or tangible or intangible, and any interest therein.
"PURCHASE CLOSING DATE": as defined in Section 15(e) of the
Lease.
"PURCHASE PRICE": at any time of determination, the sum of (i)
the aggregate outstanding principal amount of the Loans, PLUS (ii) the aggregate
outstanding principal amount of the Lessor Investment; PLUS (iii) all accrued
and unpaid interest and fees on or in respect of the Loans through the Purchase
Closing Date, PLUS (iv) all accrued and unpaid Yield (including,
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without limitation, all Accrued Construction Term Yield) and all accrued and
unpaid fees in respect of the Lessor Investment Commitment, in each case through
the Purchase Closing Date, PLUS (v) all other amounts owing by the Company or
the Guarantors under the Transaction Documents (including in any event all
unpaid Impositions accrued, arising or payable in connection with the Facility
or otherwise pursuant to the Lease whether in connection with the purchase of
the Facility pursuant to Section 14(d) of the Lease or pursuant to any provision
of Section 15 of the Lease, or otherwise).
"QUARTERLY DATES": the last day of each March, June,
September, and December in each year, the first of which shall be December 31,
1997, PROVIDED that if any such day is not a Business Day, then such Quarterly
Date shall be the next Business Day.
"REDEEMABLE PREFERRED STOCK": of any Person means any
preferred stock issued by such Person (i) required (by the terms of the
governing instruments or at the option of the holder thereof) to be mandatorily
redeemed for cash at any time prior to the Maturity Date (by sinking fund or
similar payments or otherwise) or (ii) redeemable at the option of the holder
thereof at any time prior to the Maturity Date.
"REGISTER": as defined in Section 11.06(d) of the Credit
Agreement.
"REGULATION D": Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"REGULATION G": Regulation G of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"REGULATION U": Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"RELATED CONTRACT": any agreement, contract, ▇▇▇▇ of sale,
receipt or Vendor's warranty relating to or for the purchase, acquisition,
design, engineering, testing, manufacture, renovation, assembly, construction or
installation of the Facility or any portion thereof or the provision of
enhancements and improvements to the Facility, or otherwise in connection with
the acquisition, ownership, use, operation or sale or other disposition of the
Facility, made, entered into or received by the Acquisition/Construction Agent
on behalf of the Lessor pursuant to the Agency Agreement or by the Company and
assigned to the Lessor pursuant to the Agency Agreement, with or from one or
more Vendors or other Persons.
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"RENT": Basic Rent, Supplemental Rent and the Final Rent
Payment, collectively.
"RENT PAYMENT DATE": the last day of any Rental Period.
"RENTAL PERIOD": (i) with respect to each Loan and Loan
Commitment, each Interest Period therefor that ends after the Completion Date,
and (ii) with respect to the Lessor Investment and the Lessor Investment
Commitment, each Yield Period therefor that ends after the Completion Date.
"REQUIRED PERCENTAGE COMPOSITION": (i) with respect to the
Commitments, a requirement that not less than 3% of the aggregate amount of the
Lessor Investment Commitment and the Loan Commitments be comprised of Lessor
Investment Commitment; (ii) with respect to the Construction Term and the Lease
Term, a requirement that not less than 3% of Facility Cost, and not less than 3%
of the amount that is the sum of (a) the aggregate outstanding principal amount
of the Loans and (b) the Lessor Investment, be provided by or comprised of the
Lessor Investment; (iii) with respect to each Borrowing, a requirement that no
more than 85% (rounded) of such Borrowing, and 85% of Facility Cost, shall be
comprised of Tranche A Loans, and no more than 12% (rounded) of such Borrowing,
and 12% of Facility Cost, shall be provided by or comprised of Tranche B Loans;
(iv) with respect to each Borrowing, a requirement that after giving effect
thereto, 3% of the amount that is the sum of (a) the aggregate outstanding
principal amount of the Loans and (b) the Lessor Investment be comprised of the
Lessor Investment; (v) with respect to each Borrowing, a requirement that after
giving effect thereto the aggregate outstanding amount of Loans shall not exceed
the Aggregate Loan Commitments, and after giving effect to the Lessor Investment
Payments, the Lessor Investment shall not exceed the Lessor Investment
Commitment; and (vi) with respect to the Completion Date, a requirement that on
such date, after giving effect to all Lessor Investment Payments and Loans to be
made and outstanding at the close of business on such date, 3% of the amount
that is the sum of (a) the aggregate outstanding principal amount of the Loans
and (b) the Lessor Investment be comprised of the Lessor Investment and 97% of
such sum be comprised of Loans.
"RESPONSIBLE OFFICER" shall mean the Chairman, the President,
or the Chief Financial Officer, Senior Vice President- Finance and
Administration of the Company.
"RESTRICTED INVESTMENT": means any investment in cash or by
delivery of property to any Person, whether by acquisition of stock,
indebtedness or other obligation or security, or by loan, advance or capital
contribution, or otherwise, or in any property except that investments
consisting of the following shall not constitute "Restricted Investments": (i)
property used or to be used in the ordinary course of business; (ii) current
assets arising from the sale of goods or the provision of services in the
ordinary course of business; (iii) loans or
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advances to employees for salary, commissions, travel or the like, made in the
ordinary course of business; (iv) investments in direct obligations of the
United States of America, or any agency thereof or obligations guaranteed by the
United States of America, PROVIDED that such obligations mature within one year
from the date of acquisition thereof; (v) investments in time deposits, demand
deposits and certificates of deposit maturing within one year from the date of
acquisition issued by a bank or trust company organized under the laws of the
United States or any state thereof having capital surplus and undivided profits
aggregating at least $500,000,000; and (vi) investments in commercial paper
given the highest rating by a national credit rating agency and maturing not
more than two hundred seventy (270) days from the date of creation thereof.
"RESTRICTED PAYMENT" shall mean, with respect to the Company
or any Subsidiary thereof, (a) any dividend or other distribution on any shares
of capital stock of the Company or such Subsidiary (except dividends payable
solely to the Company or any Subsidiary and dividends payable solely in stock by
the Company or such Subsidiary), and (b) any payment on account of the purchase,
redemption, retirement or acquisition of (i) any shares of the capital stock of
the Company or a Subsidiary thereof or (ii) any option, warrant, convertible
security or other right to acquire shares of the capital stock of the Company or
a Subsidiary thereof, other than, in either case, payments made solely to the
Company or such Subsidiary.
"RESTORATION ACCOUNT": the interest bearing account maintained
with the Agent by the Lessor pursuant to Section 14(d) of the Lease and styled
the "Restoration Account."
"REVOLVING CREDIT AGREEMENT": the Credit Agreement dated as of
April 24, 1997 among the Company and its Subsidiaries, as Borrowers, Fleet
National Bank, as Agent, and various financial institutions parties thereto from
time to time, as Lenders, as amended or supplemented from time to time.
"SCHEDULED LEASE TERMINATION DATE": the date that is 4 years
after the Completion Date, or such later date to which it may be extended
subject and pursuant to the provisions of Section 2(b) of the Lease.
"SECURITY INSTRUMENTS": collectively, the Lessor Mortgage and
any and all agreements or instruments, including, without limitation, financing
statements, now or hereafter executed and delivered by the Company as security
for the payment or performance of the Notes and the Lessor Investment or the
Credit Agreement, as such agreements or instruments may be amended, supplemented
or otherwise modified from time to time.
"SELLER DEBT": as defined in Section 8.18 of the Credit
Agreement.
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"SITE": certain real property located in Dade County, Florida,
described in greater detail on EXHIBIT A to the Credit Agreement and the Lease.
"STOCKHOLDERS' EQUITY": at any time, the stockholders' equity
of the Company and its Consolidated Subsidiaries, as set forth or reflected on
the most recent consolidated balance sheet of the Company and its Consolidated
Subsidiaries prepared in accordance with GAAP; BUT EXCLUDING any Redeemable
Preferred Stock of the Company or any of its Consolidated Subsidiaries.
Stockholders' Equity generally would include, but not be limited to: (i) the par
or stated value of all outstanding Capital Stock, (ii) capital surplus, (iii)
retained earnings, and (iv) various deductions such as (a) purchases of treasury
stock, (b) valuation allowances, (c) receivables due from an employee stock
ownership plan, (d) employee stock ownership plan debt guarantees and (e)
translation adjustments for foreign currency transactions.
"SUBLEASE RENT": as defined in Section 3(a) of the Lease.
"SUBLESSEE": as defined in Section 21(c) of the Lease.
"SUBORDINATED DEBT": Indebtedness of the Company and the
Guarantors that is subordinated to the obligations of the Company and the
Guarantors owing to the Lenders and the Lessor under the Lease, the Guaranty and
the other Transaction Documents either (a) pursuant to a subordination agreement
in form and substance reasonably satisfactory to the Majority Lenders between
the Lenders (or the Agent) and the holder(s) of such Indebtedness, or (b)
pursuant to the terms thereof, where the Majority Lenders have confirmed in
writing that such terms are reasonably satisfactory to them.
"SUBSIDIARY": any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Company.
"SUPPLEMENTAL RENT": as defined in Section 3(d) of the Lease.
"SUPPORT EXPENSES": as defined in Section 3.2(l) of the Agency
Agreement.
"SURVEY": (i) a current ALTA-ACSM boundary survey of the Site
and existing improvements, if any, from a registered surveyor, prior to the
Closing Date, in form and substance satisfactory to the Agent, the Lessor and
the Lenders, in their sole discretion, and containing such certifications as the
Agent may request and (ii) an as-built survey by the original surveyor on, and
as of the Completion Date.
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"TANGIBLE NET WORTH" shall mean, at any date as of which the
amount thereof is to be determined, an amount equal to Net Worth, MINUS (i) the
sum of any amounts attributable to the book value, net of applicable reserves,
of all intangible assets of the Company and its Subsidiaries, including, without
limitation, goodwill, trademarks, copyrights, patents and any similar rights,
and unamortized debt discount and expense, and (ii) intercompany accounts with
Subsidiaries and Affiliates (including receivables due from Subsidiaries and
Affiliates).
"TAXES": as defined in Section 4.06(a) of the Credit
Agreement.
"TERMINATION EVENT": as defined in Section 15(a) of the Lease.
"TERMINATION VALUE": at any time of determination, an amount
equal to the sum of (i) the Final Rent Payment, PLUS (ii) the aggregate
outstanding principal amount of the Tranche B Loans, PLUS (iii) the aggregate
outstanding principal amount of the Lessor Investment, PLUS, (iv) without
duplication of amounts included in the Final Rent Payment, all unpaid
Impositions payable in connection with the purchase of the Facility pursuant to
Section 14(d) of the Lease or pursuant to any provision of Section 15 of the
Lease.
"THIRD PARTY": any Person other than (i) the Lessor, (ii) the
Company, (iii) the Guarantors, or (iv) any Affiliate of any of the foregoing.
"TITLE POLICY: a title insurance policy insuring the Lessor's
title to the Facility (i) as fee owner, subject to an exception for
recharacterization of the Lease as a mortgage, and (ii) as mortgagee, if the
Lease were so characterized and, insuring the Agent's interest as mortgagee of
the Facility under the Lessor Mortgage for the benefit of the Lenders.
"TOTAL FUNDED DEBT" shall mean the following (without
duplication) with respect to the Company and its Subsidiaries: (i) all
indebtedness for borrowed money (other than trade liabilities incurred in the
ordinary course of business and payable in accordance with customary practices);
(ii) all obligations evidenced by bonds, indentures, notes and similar
instruments; (iii) all obligations with respect to letters of credit and other
similar instruments not fully secured by cash other than those letters of credit
issued as security for indebtedness described in subsection (i) but only to the
extent of the maximum amount available to be drawn under such letters of credit;
(iv) all Capital Lease Obligations; (v) all liabilities secured by any Lien on
any property owned by the Company, regardless of whether such liabilities are
nonrecourse; and (vi) all Guaranties (without duplication).
"TRANCHE A LOAN COMMITMENT": as to any Lender, the commitment
of such Lender to make loans pursuant to Section
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2.01(a) of the Credit Agreement in an amount equal to such Lender's Loan
Percentage Share of the Tranche A Loans, as set forth on EXHIBIT E to the Credit
Agreement.
"TRANCHE A LOANS": collectively, all Loans made by the Lenders
to the Lessor pursuant to the Tranche A Loan Commitments in an aggregate
principal amount not to exceed the Aggregate Trance A Loan Commitments.
"TRANCHE A NOTE" and "TRANCHE A NOTES": as defined in Section
2.05(a) of the Credit Agreement.
"TRANCHE A LENDER": any Person who from time to time becomes
or has agreed to become a holder of a Tranche A Note and is a signatory of the
Credit Agreement as a Tranche A Lender or becomes a party thereto as provided in
Section 11.06 thereof, and their respective successors and assigns;
collectively, the "TRANCHE A LENDERS."
"TRANCHE B LOAN COMMITMENT": as to any Lender, the commitment
of such Lender to make loans pursuant to Section 2.01(a) of the Credit Agreement
in an amount equal to such Lender's Loan Percentage Share of the Tranche B
Loans, as set forth on EXHIBIT E to the Credit Agreement.
"TRANCHE B LOANS": collectively, all Loans made by the Lenders
to the Lessor pursuant to the Tranche B Loan Commitments in an aggregate
principal amount not to exceed the Aggregate Tranche B Loan Commitments.
"TRANCHE B NOTE" and "TRANCHE B NOTES": as defined in Section
2.05(b) of the Credit Agreement, as the same may be amended, supplemented,
renewed, extended for any period, increased, rearranged or otherwise modified
from time to time.
"TRANCHE B LENDER": any Person who from time to time becomes
or has agreed to become a holder of a Tranche B Note and is a signatory of the
Credit Agreement as a Tranche B Lender or becomes a party thereto as provided in
Section 11.06 thereof, and their respective successors and assigns;
collectively, the "TRANCHE B LENDERS". successors.
"TRANSACTION DOCUMENTS": collectively, the Credit Agreement,
the Lease, the Agency Agreement, the Operative Guaranties, the Contribution
Agreement, the Notes, the Lessor Mortgage, the Pledge Agreement, the Pledged
Stock Intercreditor Agreement and the other Security Instruments and any and all
other agreements or instruments now or hereafter executed and delivered, or
required to be executed and delivered, by the Lessor, the Company or the
Guarantors in connection with the Notes, the Lease or the Credit Agreement, as
such agreements or instruments may be amended, supplemented, renewed, extended,
increased or otherwise modified from time to time.
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"UCC": the Uniform Commercial Code as in effect in the State
of Florida and any other jurisdiction whose laws may be mandatorily applicable.
"UNGUARANTEED AMOUNT": as of any date of determination, the
aggregate amount of principal then owing by the Lessor to the Lenders on account
of the Tranche B Loans and to the Lessor on account of the Lessor Investment.
"VENDOR": any designer, supplier, manufacturer or installer
of, or provider of Property or services with respect to, the Facility or any
Property included therein or any part thereof.
"WHOLLY OWNED SUBSIDIARY": any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Company.
"YIELD": all yield accruing from time to time with respect to
the Lessor Investment of the Lessor, Yield to include without limitation all
Accrued Construction Term Yield.
"YIELD PERIOD": with respect to each Lessor Investment Payment
or the Lessor Investment, as applicable, the period beginning on the date of
such Lessor Investment Payment and ending on the numerically corresponding date
(or, if applicable, last calendar date) three months thereafter and, thereafter,
each subsequent period commencing on the last day of the immediately preceding
Yield Period and ending on the numerically corresponding date (or, if
applicable, last calendar date) three months thereafter, PROVIDED, HOWEVER,
that:
(i) The duration of any Yield Period that commences
before the Scheduled Lease Termination Date and would otherwise end
after the Scheduled Lease Termination Date shall end on the Scheduled
Lease Termination Date;
(ii) the duration of the initial Yield Period with
respect to each Lessor Investment Payment shall end on the first
Quarterly Date occurring after the date of such Lessor Investment
Payment; and
(iii) if the last day of such Yield Period would
otherwise occur on a day that is not a Business Day, such last day
shall be extended to the next succeeding Business Day, EXCEPT if such
extension would cause such last day to occur in a new calendar month,
then such last day shall occur on the next preceding Business Day.
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SCHEDULE 1.02(A)
Facility Plan and List of Facility Plan Documents
[TO BE FURNISHED BY THE COMPANY]
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SCHEDULE 1.02(B)
REQUIREMENTS FOR "COMPLETION"
The term "Completion," as used in the Transaction Documents shall mean
satisfaction of all of the following conditions and requirements:
1. The Company, as Acquisition/Construction Agent, has satisfied all of
its design and construction obligations under Section 1.3 of the Agency
Agreement which are required to be completed by the Completion Date.
2. The Company, as Acquisition/Construction Agent, and the architect
responsible for the Facility Plan shall have executed and delivered to the
Lessor and the Agent the Completion Certificate.
3. A letter of shell completion for the Facility and final,
unconditional certificates of occupancy covering each floor of the Facility
shall have been issued by Dade County, Florida.
4. The Lessor and the Agent shall have received endorsements to the
Title Policy which (a) advance the effective date thereof through the Completion
Date without exception for mechanics' or materialmen's liens or any other
encumbrances other than the Permitted Liens, and (b) evidence payment of all
real property Impositions which are due and payable as of the advanced effective
date.
5. The general contractor shall have executed and delivered for the
benefit of the Lessor a final contractor's affidavit in accordance with the
requirements of applicable Florida law.
6. The Agent and the Lessor shall have received the Survey, delineating
all of the improvements thereon on the Site and dated within thirty (30) days of
the proposed Completion Date.
7. The Company shall have delivered all Applicable Permits and
reasonable evidence satisfactory to the Lessor and the Agent that the Facility
is in compliance with all zoning ordinances, agreements, architectural
restrictions and environmental regulations applicable to the Facility and
reasonable evidence that streets, utilities and municipal services required for
the use and occupancy of the Facility for the Permitted Use are in place,
available and sufficient.
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8. The Company shall have provided the Lessor and the Agent reasonable
evidence that all personal property taxes affecting the Facility or any portion
thereof which have become due and payable have been paid in full.
9. No part of the Facility shall have been subject to any Casualty
Occurrence and then remain unrepaired or unrestored as of the proposed
Completion Date and no actual or threatened proceeding for the taking of all or
less than all of the Facility pursuant to the exercise of the power of eminent
domain shall be pending as of the proposed Completion Date.
10. There shall not have occurred and then be continuing any Event of
Default under any of the Transaction Documents or any event which, with the
giving of notice or the passage of time or both, would constitute an Event of
Default under any of the Transaction Documents.
11. The Company and the Guarantors, as applicable, shall have renewed
in writing any representations and warranties provided in the Transaction
Documents that may reasonably be required by Agent which are applicable to
periods following the Completion Date.
12. No Material Adverse Effect has occurred.
13. To the extent not already provided, the Company shall have provided
the Lessor and the Agent satisfactory deeds, bills of sale, assignments of
purchase orders, Vendor's warranties, and other documentation incident to the
acquisition of the Facility by the Lessor.
14. All filings or recordings considered necessary or desirable by the
Lessor, the Agent and the Lenders completed and all taxes and fees in connection
therewith paid by the Company.
15. The Lessor and the Agent shall have received favorable opinion of
counsel to the Lessee covering such matters incident to the transactions as the
Lessor may require as to documents or legal issues not covered on the Lease
Commencement Date, if any).
16. The Lessor and the Agent shall have received evidence of compliance
with Insurance Requirements.
17. The Lessor and the Agent shall have received such certified
resolutions and incumbency certificates, and such other certificates and
documents as the Lessor, the Agent or the Lenders may reasonably request.
18. All Transaction Documents to be entered into at the Completion Date
are in form and substance satisfactory to the Lessor, the Agent and the Lenders.
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SCHEDULE 1.02(C)
Pricing Schedule
A. The "APPLICABLE TRANCHE A LOAN MARGIN", "APPLICABLE TRANCHE B LOAN
MARGIN" and "APPLICABLE LESSOR'S INVESTMENT MARGIN" with respect to
amounts owing in respect of the Loans and the Lessor's Investment,
respectively, not then due and payable are as determined for amounts
accruing at the Base Rate or the Adjusted LIBO Rate, respectively, by
reference to the table below and the ratio of Total Funded Debt to
Adjusted EBITDA set forth in the most recent Compliance Certificate
furnished to the Agent pursuant to Section 8.01(c) of the Credit
Agreement, for the four consecutive fiscal quarters ending on the
Applicable Financial Statements Date referred to therein, and adjusted
as of the date of receipt by the Agent of such Compliance Certificate:
---------------------------------------------------------------------------------------------------------------
Ratio of Total less than 2.5:1.0 less than 2.0:1.0 less than 1.5:1.0
Funded Debt to but but but less than 1.0:1.0
Adjusted greater than 2.0:1.0 greater than 1.5:1.0 greater than 1.0:1.0
EBITDA
---------------------------------------------------------------------------------------------------------------
Base Rate
Applicable
Tranche A Loan 0.25% 0.0% 0.0% 0.0%
Margin and
Applicable
Tranche B Loan
Margin
---------------------------------------------------------------------------------------------------------------
Base Rate
Applicable
Lessor's 0.25% 0.0% 0.0% 0.0%
Investment
Margin
---------------------------------------------------------------------------------------------------------------
Adjusted LIBO
Rate
Applicable
Tranche A Loan 1.75% 1.50% 1.25% 1.0%
Margin
and
Applicable
Tranche B Loan
Margin
---------------------------------------------------------------------------------------------------------------
Adjusted LIBO
Rate
Applicable 2.0% 2.0% 2.0% 2.0%
Lessor's
Investment
Margin
---------------------------------------------------------------------------------------------------------------
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B. The Applicable Tranche A Loan Margin with respect to any principal
amount of, or accrued unpaid interest on, the Tranche A Loans not paid
when due (whether as part of Final Rent Payment, Termination Value,
Purchase Price, Completion Costs Payment or otherwise) is the sum of
(i) the Applicable Tranche A Loan Margin determined pursuant to A.
above, plus (ii) 2% (the "Default Tranche A Loan Margin").
C. The Applicable Tranche B Loan Margin with respect to any principal
amount of, or accrued unpaid interest on, the Tranche B Loans not paid
when due (whether as part of any Final Rent Payment, Termination Value,
Purchase Price, Completion Costs Payment or otherwise) is the sum of
(i) the Applicable Tranche B Loan Margin determined pursuant to A.
above, plus (ii) 3% (the "Default Tranche B Loan Margin").
D. The Applicable Lessor's Investment Margin with respect to any
unrecovered amount of, or accrued unpaid Yield on or in respect of, the
Lessor's Investment not paid when due (whether as part of any
Termination Value, Purchase Price, Completion Costs Payment or
otherwise) is the sum of (i) the Applicable Lessor's Investment Margin
determined pursuant to A. above, plus (ii) 5% (the "Default Investment
Margin").
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