Exhibit 10.5
BRIDGE CREDIT AGREEMENT
Dated as of January 9, 2003
among
FIRST STATES INVESTORS 3500, LLC,
as the Borrower,
FIRST STATES GROUP, L.P.,
as the LP Guarantor,
FIRST STATES INVESTORS 3500A, LLC,
as the Parent Guarantor,
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,NATIONAL ASSOCIATION,
a national banking association, not in its individual capacity, but solely as
Owner Trustee under the 1997-C Trust Agreement referenced herein, as a
Special Guarantor,
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION,
a national banking association, not in its individual capacity, but solely as
Owner Trustee under the 1997-D Trust Agreement referenced herein, as a
Special Guarantor,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
as successor Co-Trustee to ▇▇▇▇ ▇▇▇▇ Seakas, as successor Co-Trustee to
▇▇▇▇▇ ▇▇▇▇▇▇▇, not in her individual capacity, but solely as
Co-Trustee under the 1997-C Trust Agreement, as a Special Guarantor,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
as successor Co-Trustee to ▇▇▇▇ ▇▇▇▇ Seakas, as successor Co-Trustee to
▇▇▇▇▇ ▇▇▇▇▇▇▇, not in her individual capacity, but solely as
Co-Trustee under the 1997-D Trust Agreement, as a Special Guarantor,
BANK OF AMERICA, N.A.,
as Administrative Agent,
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager,
and
The Other Lenders Party Hereto
TABLE OF CONTENTS
Section Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.......................................................... 1
1.01 Defined Terms............................................................................ 1
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1.02 Other Interpretive Provisions............................................................ 16
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1.03 Accounting Terms......................................................................... 16
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1.04 Rounding................................................................................. 17
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1.05 References to Agreements and Laws........................................................ 17
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1.06 Times of Day............................................................................. 17
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ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS.................................................... 17
2.01 Term Loan; Term Note..................................................................... 17
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2.02 Borrowing Procedures..................................................................... 17
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2.03 Principal and Interest Payments and Calculation.......................................... 18
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2.04 Prepayments.............................................................................. 19
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2.05 Evidence of Debt......................................................................... 19
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2.06 Payments Generally....................................................................... 19
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2.07 Sharing of Payments...................................................................... 20
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ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY.................................................. 21
3.01 Taxes.................................................................................... 21
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3.02 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Loans................... 22
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3.03 Funding Losses........................................................................... 22
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3.04 Matters Applicable to all Requests for Compensation...................................... 23
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3.05 Survival................................................................................. 23
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ARTICLE IV GUARANTY................................................................................. 23
4.01 The Guaranty............................................................................. 23
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4.02 Obligations Unconditional................................................................ 23
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4.03 Reinstatement............................................................................ 24
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4.04 Certain Additional Waivers............................................................... 24
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4.05 Remedies................................................................................. 24
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4.06 Guarantee of Payment; Continuing Guarantee............................................... 25
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4.07 Guarantee of Payment; Continuing Guarantee............................................... 25
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ARTICLE V CONDITIONS PRECEDENT TO CLOSING AND ADVANCE............................................... 25
5.01 Conditions Precedent..................................................................... 25
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ARTICLE VI REPRESENTATIONS AND WARRANTIES........................................................... 30
6.01 Existence, Qualification and Power; Compliance with Laws................................. 30
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6.02 Authorization; No Contravention.......................................................... 31
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6.03 Governmental Authorization; Other Consents............................................... 31
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6.04 Binding Effect........................................................................... 31
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6.05 Financial Statements; No Material Adverse Effect......................................... 31
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6.06 Litigation............................................................................... 32
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6.07 No Default............................................................................... 32
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6.08 Ownership of Property; Liens............................................................. 32
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6.09 Environmental Compliance................................................................. 32
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6.10 Insurance................................................................................ 33
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6.11 Taxes.................................................................................... 33
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6.12 ERISA Compliance......................................................................... 33
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6.13 Subsidiaries............................................................................. 34
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6.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act............... 34
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6.15 Disclosure................................................................................... 34
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6.16 Compliance with Laws......................................................................... 34
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6.17 Solvency..................................................................................... 35
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6.18 Investments; Indebtedness.................................................................... 35
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6.19 Business Locations........................................................................... 35
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6.20 Brokers' Fees................................................................................ 35
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6.21 Labor Matters................................................................................ 35
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6.22 Nature of Business........................................................................... 35
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6.23 Representations and Warranties from Other Loan Documents..................................... 35
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6.24 Affiliate Transactions....................................................................... 35
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6.25 Contractual Obligations...................................................................... 35
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6.26 Survival of Representations and Warranties, Etc. ............................................ 35
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ARTICLE VII AFFIRMATIVE COVENANTS........................................................................ 36
7.01 Financial Statements......................................................................... 36
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7.02 Certificates; Other Information.............................................................. 36
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7.03 Notices and Information...................................................................... 36
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7.04 Payment of Obligations....................................................................... 37
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7.05 Preservation of Existence, Franchises, SPE Status, Etc....................................... 37
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7.06 Maintenance of Properties.................................................................... 37
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7.07 Maintenance of Insurance..................................................................... 38
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7.08 Compliance with Laws......................................................................... 38
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7.09 Books and Records............................................................................ 38
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7.10 Inspection Rights............................................................................ 38
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7.11 Use of Proceeds; Type of Purchase Agreement Transactions..................................... 38
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7.12 Payments from Approved Leases................................................................ 38
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7.13 Pledged Assets............................................................................... 39
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7.14 Further Assurances .......................................................................... 39
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7.15 Status of Mortgaged Properties; Recording of Collateral Documents............................ 39
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7.16 Approved Leases.............................................................................. 40
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7.17 Fianancial Covenants ........................................................................ 40
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ARTICLE VIII ADDITIONAL NEGATIVE COVENANTS............................................................... 41
8.01 Liens........................................................................................ 41
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8.02 Investments.................................................................................. 41
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8.03 Indebtedness................................................................................. 42
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8.04 Fundamental Changes; Dispositions............................................................ 42
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8.05 Restricted Payments; Equity Issuances; Debt Issuances........................................ 42
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8.06 Change in Nature of Business................................................................. 42
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8.07 Transactions with Affiliates and Insiders.................................................... 43
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8.08 Contractual Obligations; Sale and Leasback Agreements........................................ 43
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8.09 Use of Proceeds.............................................................................. 43
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8.10 Subsidiaries; Ownership of Capital Stock..................................................... 43
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8.11 Prepayment of Other Indebtedness, Etc........................................................ 43
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8.12 Organization Documents; Fiscal Year.......................................................... 44
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8.13 Status of Approved Leases and Mortgaged Properties........................................... 44
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8.14 Operating Lease Obligations.................................................................. 44
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ARTICLE IX EVENTS OF DEFAULT AND REMEDIES................................................................ 44
9.01 Events of Default............................................................................ 44
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9.02 Remedies Upon Event of Default............................................................... 46
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9.03 Application of Funds......................................................................... 46
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ARTICLE X ADMINISTRATIVE AGENT........................................................................... 47
10.01 Appointment and Authorization of Administrative Agent........................................ 47
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10.02 Delegation of Duties......................................................................... 47
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10.03 Liability of Administrative Agent............................................................ 47
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10.04 Reliance by Administrative Agent............................................................. 47
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10.05 Notice of Default............................................................................ 48
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10.06 Credit Decision; Disclosure of Information by Administrative Agent........................... 48
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10.07 Indemnification of Administrative Agent...................................................... 48
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10.08 Administrative Agent in its Individual Capacity.............................................. 49
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10.09 Successor Administrative Agent............................................................... 49
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10.10 Administrative Agent May File Proofs of Claim................................................ 49
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10.11 Collateral and Guaranty Matters.............................................................. 50
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10.12 Other Agents; Arrangers and Managers......................................................... 50
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ARTICLE XI MISCELLANEOUS................................................................................. 51
11.01 Amendments, Etc.............................................................................. 51
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11.02 Notices and Other Communications; Facsimile Copies........................................... 52
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11.03 No Waiver; Cumulative Remedies............................................................... 52
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11.04 Attorney Costs, Expenses and Taxes........................................................... 53
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11.05 Indemnification by the Borrower.............................................................. 53
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11.06 Payments Set Aside........................................................................... 54
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11.07 Successors and Assigns....................................................................... 54
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11.08 Confidentiality.............................................................................. 56
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11.09 Set-off...................................................................................... 56
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11.10 Interest Rate Limitation..................................................................... 57
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11.11 Counterparts................................................................................. 57
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11.12 Integration.................................................................................. 57
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11.13 Survival of Representations and Warranties................................................... 57
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11.14 Severability................................................................................. 57
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11.15 Tax Forms.................................................................................... 57
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11.16 Replacement of Lenders....................................................................... 59
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11.17 Governing Law................................................................................ 59
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11.18 Waiver of Right to Trial by Jury............................................................. 59
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11.19 Entire Agreement ............................................................................ 59
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SIGNATURES............................................................................................... S-1
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SCHEDULES
1.01(a) Approved Leases and Mortgaged Properties
2.01 Commitments and Pro Rata Shares
6.03 Required Consents, Authorizations, Notices and Filings
6.05 Indebtedness of Guarantor; Supplement to Financial Information
6.09 Environmental Matters
6.10 Insurance
6.13 Corporate Structure
6.19 Chief Executive Office, Jurisdiction of Incorporation, Principal
Place of Business
6.24 Approved Affiliate Transactions
6.25 Approved Contractual Obligations
11.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
A Form of Loan Notice
B-1 Form of Parent Guarantor Pledge Agreement
B-2 Form of LP Guarantor Pledge Agreement
C Form of Term Note
D SPE Requirements
E Form of Assignment and Assumption
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BRIDGE CREDIT AGREEMENT
This BRIDGE CREDIT AGREEMENT (as amended, modified, restated or
supplemented from time to time, the "Agreement") is entered into as of January
9, 2003 by and among FIRST STATES INVESTORS 3500, LLC, a Delaware limited
liability company, as a borrower hereunder (together with any successors and
assigns expressly permitted pursuant to the terms of this Agreement, the
"Borrower"), FIRST STATES GROUP, L.P., a Delaware limited partnership, as the LP
Guarantor (together with any successors and assigns expressly permitted pursuant
to the terms of this Agreement, the "LP Guarantor"), FIRST STATES INVESTORS
3500A, LLC, a Delaware limited liability company, as the Parent Guarantor
(together with any successors and assigns expressly permitted pursuant to the
terms of this Agreement, the "Parent Guarantor"), STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking association,
not in its individual capacity, but solely as Owner Trustee under the 1997-C
Trust Agreement referenced herein (together with any successors and assigns
expressly permitted pursuant to the terms of this Agreement, the "1997-C Owner
Trustee"), as a Special Guarantor (as defined herein), STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity, but solely as Owner Trustee under
the 1997-D Trust Agreement referenced herein (together with any successors and
assigns expressly permitted pursuant to the terms of this Agreement, the "1997-D
Owner Trustee"), as a Special Guarantor, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as successor
Co-Trustee to ▇▇▇▇ ▇▇▇▇ Seakas, as successor Co-Trustee to ▇▇▇▇▇ ▇▇▇▇▇▇▇, not in
her individual capacity, but solely as Co-Trustee under the 1997-C Trust
Agreement (together with any successors and assigns expressly permitted pursuant
to the terms of this Agreement, the "1997-C Co-Trustee") as a Special Guarantor,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as successor Co-Trustee to ▇▇▇▇ ▇▇▇▇ Seakas, as successor
Co-Trustee to ▇▇▇▇▇ ▇▇▇▇▇▇▇, not in her individual capacity, but solely as
Co-Trustee under the 1997-D Trust Agreement (together with any successors and
assigns expressly permitted pursuant to the terms of this Agreement, the "1997-C
Co-Trustee"), as a Special Guarantor, the Lenders (as defined herein), and BANK
OF AMERICA, N.A., as Administrative Agent (as defined herein).
The Borrower has requested that the Lenders provide term loans in a single
advance in an initial aggregate amount not in excess of $200,000,000 for the
purposes hereinafter set forth, and the Lenders are willing to do so on the
terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms.
As used in this Agreement, the following terms shall have the meanings set
forth below:
"1997-C Co-Trustee" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"1997-D Co-Trustee" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"1997-C Owner Trustee" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"1997-D Owner Trustee" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"1997-C Trust Agreement" that certain Trust Agreement 1997- dated as of
June 4, 1997 originally by and among RENAT, Inc., as owner participant and State
Street Bank and Trust Company of Connecticut, National Association, as Owner
Trustee.
"1997-D Trust Agreement" that certain Trust Agreement 1997-D dated as of
June 4, 1997 originally by and among RENAT, Inc., as owner participant and State
Street Bank and Trust Company of Connecticut, National Association, as Owner
Trustee.
"Acquisition", by any Person, means the acquisition by such Person, in a
single transaction or in a series of related transactions, of all of the Capital
Stock or all or substantially all of the Property of another Person, whether or
not involving a merger or consolidation with such other Person and whether for
cash, property, services, assumption of Indebtedness, securities or otherwise.
"Adjusted LIBOR Rate" means a per annum rate of interest equal to (a) the
LIBOR Rate, plus (b) one and one quarter of one percent (1.25%) per annum;
provided, however, that if Administrative Agent determines that no adequate
basis exists for determining the LIBOR Rate or that the LIBOR Rate will not
adequately and fairly reflect the cost to the Lenders of funding the Term Loans,
or that any applicable law or regulation or compliance therewith by the Lenders
prohibits or restricts or makes impossible the charging of interest based on the
LIBOR Rate and Administrative Agent so notifies Borrower, then until
Administrative Agent notifies Borrower that the circumstances giving rise to
such suspension no longer exist, the "Adjusted LIBOR Rate" for purposes of this
definition shall, from the date Administrative Agent so notifies Borrower until
the Maturity Date of this Agreement, equal the Base Rate plus one half of one
percent (0.50%) per annum.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 11.02, or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Advance" shall have the meaning assigned to such term in Section 2.02(a)
hereof.
"Advance Date" means the date on which Borrower, pursuant to a Loan Notice,
requests that the Advance be made.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto. Without limiting the generality
of the foregoing, a Person shall be deemed to be Controlled by another Person if
such other Person possesses, directly or indirectly, power to vote 5% or more of
the securities having ordinary voting power for the election of directors,
managing general partners or the equivalent.
"Agent-Related Persons" means the Administrative Agent, together with its
Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitments" means a collective reference to the Commitments of
each of the Lenders.
"Agreement" shall have the meaning assigned to such term in the heading
hereof.
"Agreement Date" means the date as of which this Agreement is dated, as set
forth in the introductory paragraph hereof.
"Approved Leases" means a collective reference to those leases listed on
Schedule 1.01(a) attached hereto.
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"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit E.
"Assignment of Leases" means, with respect to each Mortgaged Property, each
of:
(a) an assignment of leases, rents income, receipts, revenues,
reserves, insurance proceeds, issues, and profits (including, without
limitation, minimum rents, additional rents, percentage rents, parking,
maintenance and deficiency rents) to the Collateral Agent (for the benefit
of the Secured Parties) with respect to Borrower's Remainder Interests in
all leases, subleases, tenancies, licenses, occupancy agreements or
agreements to lease all or any portion of such Mortgaged Property, together
with any extensions, renewals, amendments, modifications or replacements
thereof, and any options, rights of first refusal or guarantees of any
tenant's obligations under any lease now or hereafter in effect with
respect thereto, in each case in form and substance acceptable to the
Administrative Agent in its discretion; provided, that, each such
Assignments of Leases shall, in any case, assign to the Collateral Agent
any and all of the Borrower's rights to collect or receive any payments
with respect to the applicable Mortgaged Property and may be combined with
the applicable Mortgage Instrument for a particular Mortgaged Property; and
(b) an assignment of leases, rents and/or profits to the Collateral
Agent (for the benefit of the Secured Parties) with respect to all
interests held by each Special Guarantor in any Approved Lease and the
applicable Mortgaged Property associated therewith; provided that each such
Assignment of Leases shall, subject to the terms of the applicable
underlying Approved Lease, directly assign to the Collateral Agent the
following: (a) the Approved Lease and all other leases, subleases,
tenancies, licenses, occupancy agreements or agreements to lease all or any
portion of the applicable Mortgaged Property, together with any extensions,
renewals, amendments, modifications or replacements thereof, and any
options, rights of first refusal or guarantees of any tenant's obligations
under any lease now or hereafter in effect with respect to the applicable
Mortgaged Property; (b) all rents, income, receipts, revenues, reserves,
issues and profits arising under such Approved Lease and any other lease
with respect to the applicable Mortgaged Property, including, without
limitation, minimum rents, additional rents, percentage rents, parking,
maintenance and deficiency rents with respect to the applicable Mortgaged
Property; (c) all awards and payments of any kind derived from or relating
to the Approved Lease or any other lease related to the applicable
Mortgaged Property including, without limitation, (i) claims for the
recovery of damages to the applicable Mortgaged Property by proceeds of any
policy of insurance or otherwise, or for the abatement of any nuisance
existing thereon, (ii) claims for damages resulting from acts of insolvency
or bankruptcy or otherwise, (iii) lump sum payments for the cancellation or
termination of the Approved Lease or any other lease related to the
applicable Mortgaged Property, the waiver of any term thereof, or the
exercise of any right of first refusal or option to purchase and (iv) the
return of any insurance premiums or ad valorem tax payments made in advance
and subsequently refunded; (d) the proceeds of any casualty, rental or loss
of rents or other insurance carried by Borrower or any holder of a fee
interest or leasehold interest on the applicable Mortgaged Property; and
(e) all security deposits and escrow accounts made by any tenant or
subtenant under the Approved Lease or any other lease related to the
applicable Mortgaged Property; provided, that each such Assignment of
Leases assign to the Collateral Agent any and all of the Special
Guarantors' rights to collect, hold or receive any payments with respect to
the applicable Mortgaged Property;
provided, that each of the assignments granted pursuant to clauses (a) and (b)
above may be combined with or separate from the assignments granted pursuant to
the other clause of this definition and/or the applicable Mortgage Instrument
for a particular Mortgaged Property; and "Assignments of Leases" means a
collective reference to each Assignment of Leases executed in connection with
this Agreement.
"Attorney Costs" means and includes all fees, expenses and disbursements of
any law firm or other external counsel and, without duplication, the allocated
cost of internal legal services and all expenses and disbursements of internal
counsel.
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"Attributable Indebtedness" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a Capital Lease.
"Bank of America" means Bank of America, N.A. and its successors.
"Bankruptcy Event" means, with respect to any Person, the occurrence of any
of the following: (a) the entry of a decree or order for relief by a court or
governmental agency in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or the appointment
by a court or governmental agency of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or the ordering of the winding up or
liquidation of its affairs by a court or governmental agency; or (b) the
commencement against such Person of an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or of
any case, proceeding or other action for the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
such Person or for any substantial part of its Property or for the winding up or
liquidation of its affairs, and such involuntary case or other case, proceeding
or other action shall remain undismissed for a period of sixty (60) consecutive
days, or the repossession or seizure by a creditor of such Person of a
substantial part of its Property; or (c) such Person shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment of or the
taking possession by a receiver, liquidator, assignee, creditor in possession,
custodian, trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or make any general assignment for the benefit
of creditors; or (d) such Person shall be unable to, or shall admit in writing
its inability to, pay its debts generally as they become due.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any such rate is a general reference rate of interest, may not be related
to any other rate, and may not be the lowest or best rate actually charged by
Bank of America to any customer or a favored rate and may not correspond with
future increases or decreases in interest rates charged by other lenders or
market rates in general, and that Bank of America may make various business or
other loans at rates of interest having no relationship to such rate. Any change
in such rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change. If Bank
of America ceases to exist or to establish or publish a prime rate from which
the Base Rate is then determined, the applicable variable rate from which the
Base Rate is determined thereafter shall be instead the prime rate reported in
The Wall Street Journal (or the average prime rate if a high and a low prime
rate are therein reported), and the Base Rate shall change without notice with
each change in such prime rate as of the date such change is reported.
"Base Rent" means, for any lease agreement during any period, an amount
equal to (a) the aggregate projected gross rental payments to be made by the
lessee under such lease agreement during such period, less (b) all amounts of
such rental payments allocated to the payment of taxes, utilities, insurance,
maintenance or other costs associated with the applicable real property or
otherwise in the nature of reimbursements to Borrower.
"Borrower" has the meaning specified in the introductory paragraph hereof.
"Borrower Security Agreement" means that certain Security Agreement dated
as of the Agreement Date executed by the Borrower in favor of the Collateral
Agent.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located.
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"Businesses" means, at any time, a collective reference to the businesses
operated by the Loan Parties at such time.
"Capital Lease" means, as applied to any Person, any lease of any Property
(whether real, personal or mixed) by that Person as lessee which, in accordance
with GAAP, is required to be accounted for as a capital lease on the balance
sheet of that Person.
"Capital Stock" means (i) in the case of a corporation, capital stock, (ii)
in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of capital
stock, (iii) in the case of a partnership, partnership interests (whether
general or limited), (iv) in the case of a limited liability company, membership
interests and (v) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Capitalized Lease Obligation" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
is the capitalized amount of such obligations determined in accordance with
GAAP.
"Cash Equivalents" means, as at any date, (a) securities issued or directly
and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition, (d) repurchase agreements entered into by any
Person with a bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of $500,000,000 for
direct obligations issued by or fully guaranteed by the United States in which
such Person shall have a perfected first priority security interest (subject to
no other Liens) and having, on the date of purchase thereof, a fair market value
of at least 100% of the amount of the repurchase obligations and (e)
Investments, classified in accordance with GAAP as current assets, in money
market investment programs registered under the Investment Company Act of 1940,
as amended, which are administered by reputable financial institutions having
capital of at least $500,000,000 and the portfolios of which are limited to
Investments of the character described in the foregoing subdivisions (a) through
(d).
"Change of Control" means the occurrence of any of the following events:
(a) the sale, lease, transfer or other disposition (other than by way of merger
or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of any Loan Party to any "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934), (b) any Loan Party is liquidated or dissolved or adopts a plan of
liquidation or dissolution; (c) the Parent Guarantor shall fail to own directly
100% of the outstanding Capital Stock of the Borrower; or (d) the LP Guarantor
shall fail to own 100% of the outstanding Capital Stock of the Parent Guarantor.
"Closing Date" means the first date all the conditions precedent in Section
5.01 are satisfied or waived in accordance with Section 5.01.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means a collective reference to all real and personal Property
with respect to which Liens in favor of the Collateral Agent for the benefit of
the Secured Parties are purported to be granted pursuant to and in accordance
with the terms of the Collateral Documents.
"Collateral Agent" means Bank of America, in such capacity under the
Collateral Documents, or its successors and assigns.
5
"Collateral Documents" means a collective reference to the Pledge
Agreements, the Borrower Security Agreement, the Mortgage Instruments, the
Assignments of Leases and such other security documents as may be executed and
delivered by the Loan Parties and/or Special Guarantors pursuant to the terms of
this Agreement.
"Commitment" means, as to each Lender, its obligation to make its Term Loan
to the Borrower pursuant to Section 2.01, in an aggregate principal amount at
any one time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable, as such amount may be
adjusted from time to time in accordance with this Agreement.
"Compensation Period" has the meaning specified in Section 2.06(c)(ii)
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" has the meaning specified in the definition of "Affiliate" set
forth in this Section 1.01.
"Debt Issuance" means the issuance by Borrower of any Indebtedness of the
type referred to in clause (a) or (b) of the definition thereof set forth in
this Section 1.01.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
"Default Rate" means in respect of any principal of any Term Loan or any
other Obligation that is not paid when due (whether at stated maturity, by
acceleration, by optional or mandatory prepayment or otherwise), a rate per
annum equal to four percent (4.0%) plus the Adjusted LIBOR Rate as in effect
from time to time, to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of its Term Loan required to be funded by it hereunder within one
Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within one Business Day of the
date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Delivered Financial Statements" means a collective reference to the
unaudited consolidated and consolidating balance sheet of the LP Guarantor as of
November 30, 2002 and the related consolidated and consolidating statements of
income or operations, shareholders' equity and cash flows of the LP Guarantor
(in each case, to the extent in existence as of the Closing Date) for the period
commencing on September 10, 2002 and ending as of November 30, 2002, including
any notes with respect thereto.
"Disposition" or "Dispose" means any disposition of any or all of the
Property (including without limitation the Capital Stock of a Subsidiary) of any
Loan Party or Special Guarantor whether by sale, lease, licensing, transfer or
otherwise, but other than pursuant to any casualty or condemnation event;
provided, however, that the term "Disposition" shall be deemed to exclude any
Equity Issuance.
"Dollar" and "$" mean lawful money of the United States.
"Eligible Assignee" has the meaning specified in Section 11.07(g).
6
"Eligible Lessee" means (a) Bank of America, N.A. or an Affiliate thereof
that has been approved in writing by the Administrative Agent or (b) a Person
with publicly traded senior debt that is rated AA or better by S&P and that has
been approved in writing by the Administrative Agent, in each case to the extent
such Person is not the subject of any Bankruptcy Event.
"Engagement Letter" means that certain engagement letter and the attached
summary of terms and conditions entered into by and among Borrower and the
Administrative Agent and dated as of January 3, 2003.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of any Loan Party, any of the respective Loan
Parties' Subsidiaries or any Special Guarantor directly or indirectly resulting
from or based upon (a) violation of any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with the Borrower within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
"Equity Issuance" means any issuance by Borrower to any Person of (a)
shares of its Capital Stock, (b) any shares of its Capital Stock pursuant to the
exercise of options or warrants, (c) any shares of its Capital Stock pursuant to
the conversion of any debt securities to equity or the conversion of any class
equity securities to any other class of equity securities or (d) any options or
warrants relating to its Capital Stock. The term "Equity Issuance" shall not be
deemed to include any Disposition.
"Event of Default" has the meaning specified in Section 9.01.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
7
"FIRREA" means the Financial Institutions Reform, Recovery, and Enforcement
Act of 1989, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, as amended, including, without limitation,
12 CFR part 34.41 to 34.47.
"Flood Hazard Property" has the meaning specified in Section 5.01(d)(iv).
"Foreign Lender" has the meaning specified in Section 11.15(a)(i).
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fully Satisfied" means, with respect to the Obligations as of any date,
that, as of such date, (a) all principal of and interest accrued to such date
which constitute Obligations shall have been irrevocably paid in full in cash,
(b) all fees, expenses and other amounts then due and payable which constitute
Obligations shall have been irrevocably paid in cash and (c) the Commitments
shall have expired or been terminated in full.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee" means, as to any Person, any (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "Guarantee" as a verb has a corresponding meaning.
"Guarantors" shall mean a collective reference to Related Guarantors and
the Special Guarantors; and "Guarantor" means either of them, as applicable.
"Guaranty" means the Guaranty made by the Guarantors in favor of the
Administrative Agent and the Lenders pursuant to Article IV hereof.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
8
"Indebtedness" means, with respect to any Person, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to Property
purchased by such Person (other than customary reservations or retentions of
title under agreements with suppliers entered into in the ordinary course of
business), (d) all obligations of such Person issued or assumed as the deferred
purchase price of Property or services purchased by such Person (other than
trade debt incurred in the ordinary course of business and due within six months
of the incurrence thereof) which would appear as liabilities on a balance sheet
of such Person, (e) all obligations of such Person under take-or-pay or similar
arrangements or under commodities agreements, (f) the Attributable Indebtedness
of such Person with respect to Capital Leases and Synthetic Lease Obligations,
(g) all net obligations of such Person under Swap Contracts, (h) the principal
portion of all obligations of such Person as an account party in respect of
letters of credit (other than trade letters of credit) and bankers' acceptances,
including, without duplication, all unreimbursed drafts drawn thereunder (less
the amount of any cash collateral securing any such letters of credit or and
bankers' acceptances), (i) all obligations of such Person to repurchase any
securities issued by such Person at any time prior to the Maturity Date which
repurchase obligations are related to the issuance thereof, including, without
limitation, obligations commonly known as residual equity appreciation potential
shares, (j) the aggregate amount of uncollected accounts receivable of such
Person subject at such time to a sale of receivables (or similar transaction) to
the extent such transaction is effected with recourse to such Person (whether or
not such transaction would be reflected on the balance sheet of such Person in
accordance with GAAP), (k) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on, or payable out of the proceeds of production
from, Property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (l) all Guarantees of such Person with
respect to Indebtedness of another Person, (m) the Indebtedness of any
partnership or unincorporated joint venture in which such Person is a general
partner or a joint venturer to the extent such Indebtedness is recourse to such
Person and (n) all Off-Balance Sheet Liabilities of such Person. The amount of
any net obligation under any Swap Contract on any date shall be deemed to be the
Swap Termination Value thereof as of such date.
"Indemnified Liabilities" has the meaning set forth in Section 11.05.
"Indemnitees" has the meaning set forth in Section 11.05.
"Interest Payment Date" means each of (a) the Maturity Date and (b) any
date on which any of the Obligations are accelerated pursuant to Article IX
hereof.
"Investment" in any Person means (a) any Acquisition of such Person, (b)
any other acquisition of Capital Stock, bonds, notes, debentures, partnership,
joint ventures or other ownership interests or other securities of such other
Person, (c) any deposit with, or advance, loan or other extension of credit to,
such Person (other than deposits made in connection with the purchase of
equipment inventory and supplies in the ordinary course of business) or (d) any
other capital contribution to or investment in such Person, including, without
limitation, any Guarantee (including any support for a letter of credit issued
on behalf of such Person) incurred for the benefit of such Person and any
Disposition to such Person for consideration less than the fair market value of
the Property disposed in such transaction, but excluding any Restricted Payment
to such Person. Investments which are capital contributions or purchases of
Capital Stock which have a right to participate in the profits of the issuer
thereof shall be valued at the amount (or, in the case of any Investment made
with Property other than cash, the book value of such Property) actually
contributed or paid (including cash and non-cash consideration and any
assumption of Indebtedness) to purchase such Capital Stock as of the date of
such contribution or payment and attributable to any Investment made after the
Closing Date. Investments which are loans, advances, extensions of credit or
Guarantees shall be valued at the principal amount of such loan, advance or
extension of credit outstanding as of the date of determination or, as
applicable, the principal amount of the loan or advance outstanding as of the
date of determination actually guaranteed by such Guarantees.
"Irrevocable Direction" means a letter or other writing from the Borrower,
as beneficiary under the Trust Documents, to each of the lessors under the
Approved Leases (in their capacities as trustees under the Trust Documents)
containing: (a) irrevocable (except with the consent of the Administrative
Agent) instructions to each such lessor to direct the tenants under the Approved
Leases to make payments under the Approved Leases in accordance with
instructions given to such tenants by the Administrative Agent and (b)
irrevocable (except with the consent of the Administrative Agent) instructions
to each such lessor not to take any action under the Trust Documents or
otherwise with respect to the Mortgaged Properties, Approved Leases, or any
payments or other ▇▇▇▇▇▇ associated therewith
9
without the express written consent of the Administrative Agent; provided, that
such letter or writing shall be in such form as may be required by the terms of
the Trust Documents and by the lessor(s) as trustee(s) thereunder and shall
otherwise be in form and substance acceptable to the Administrative Agent.
"IRS" means the United States Internal Revenue Service.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"Lenders" means a collective reference to the Persons identified as
"Lenders" on the signature pages hereto, together with any Person that
subsequently becomes a Lender by way of assignment in accordance with the terms
of Section 11.7, together with their respective successors, and "Lender" means
any one of them.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"LIBOR Rate" means a fluctuating rate of interest equal to the one month
rate of interest (rounded upwards, if necessary to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the one month London
interbank offered rate for deposits in U.S. Dollars at approximately 11:00 a.m.
(London time) on the second preceding Business Day, as adjusted from time to
time in Administrative Agent's sole discretion for then applicable reserve
requirements, deposit insurance assessment rates and other regulatory costs. If
for any reason such rate is not available, the term "LIBOR Rate" shall mean the
fluctuating rate of interest equal to the one month rate of interest (rounded
upwards, if necessary to the nearest 1/100 of 1%) appearing on Reuters Screen
LIBO Page as the one month London interbank offered rate for deposits in U.S.
Dollars at approximately 11:00 a.m. (London time) on the second preceding
Business Day, as adjusted from time to time in Administrative Agent's sole
discretion for then applicable reserve requirements, deposit insurance
assessment rates and other regulatory costs; provided, however, if more than one
rate is specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates. "Telerate Page 3750" means the British
Bankers Association Libor Rates (determined as of 11:00 a.m. London time) that
are published by Bridge Information Systems, Inc.
"Lien" as applied to the property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, pledge,
lien, charge, ground lease or lease constituting a Capitalized Lease Obligation,
conditional sale or other title retention agreement, or other security title or
encumbrance of any kind in respect of any property of such Person, or upon the
income or profits therefrom; (b) any arrangement, express or implied, under
which any property of such Person is transferred, sequestered or otherwise
identified for the purpose of subjecting the same to the payment of Indebtedness
or performance of any other obligation in priority to the payment of the
general, unsecured creditors of such Person; and (c) any agreement by such
Person to grant, give or otherwise convey any of the foregoing.
"Loan Documents" means a collective reference to this Agreement, each Term
Note and the Collateral Documents; and "Loan Document" means any one of them.
"Loan Notice" means a notice of a request for the Advance pursuant to
Section 2.02(a), which shall be substantially in the form of Exhibit A.
"Loan Parties" means, collectively, the Borrower and each of the Related
Guarantors; and "Loan Party" means any of them.
"LP Guarantor" shall have the meaning assigned to such term in the
introductory paragraph hereof.
10
"LP Guarantor Pledge Agreement" means the pledge agreement in the form of
Exhibit B-2 dated as of the Closing Date executed by the LP Guarantor in favor
of the Collateral Agent for the benefit of the Secured Parties, as amended,
modified, restated or supplemented from time to time.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), condition (financial or otherwise) or prospects of any
Loan Party or Special Guarantor (whether individually or in the aggregate); (b)
a material impairment of the ability of any Loan Party or Special Guarantor to
perform its obligations under any Loan Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against the any Loan Party or Special Guarantor of any Loan
Document to which it is a party.
"Maturity Date" means the date occurring sixty (60) days following the
Closing Date.
"Maximum Committed Amount" means an amount equal to TWO HUNDRED MILLION AND
NO/100 DOLLARS ($200,000,000.00).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor thereto.
"Mortgage Commitments" shall have the meaning given to such term in Section
5.01(d)(iii).
"Mortgage Instrument" means, with respect to any Mortgaged Property, each
of:
(a) a first lien priority mortgage, deed of trust or deed to secure
debt executed by the Borrower in favor of the Collateral Agent with respect
to its Remainder Interest in such Mortgaged Property; and
(b) a first lien priority mortgage, deed of trust or deed to secure
debt executed by each Special Guarantor holding any interest in such
Mortgaged Property in favor of the Collateral Agent;
provided, that each Mortgage Instrument shall, as a collective whole, encumber
one hundred percent (100.0%) of the real property ownership interests in the
applicable Mortgaged Property subject only to matters set forth on the Mortgage
Commitments applicable thereto; the mortgages, deeds of trust or deeds to secure
debt granted pursuant to either of clauses (a) or (b) above may be combined with
or separate from the mortgages, deeds of trust or deeds to secure debt granted
pursuant to the other clause; and "Mortgage Instrument" means any of the
mortgages, deeds of trust or deeds to secure debt granted with respect to a
Mortgaged Property pursuant to the terms of this Agreement.
"Mortgaged Property" means any of the parcels of real property listed on
Schedule 1.01(a) attached hereto; and "Mortgaged Properties" means a collective
reference to each of them.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Negative Pledge" means a provision of any agreement (other than this
Agreement or any other Loan Document) that prohibits the creation of any Lien on
any assets of a Person.
"Note" or "Notes" means the Term Notes, individually or collectively, as
appropriate.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party and any Special Guarantor arising under
any Loan Document or otherwise with respect to any Term Loan, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party, Special
Guarantor or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding. The foregoing
shall also include any Swap Contract of any Loan Party to which a Lender or any
Affiliate of such Lender is a party.
11
"Off-Balance Sheet Liabilities" means, with respect to any Person, (a) any
repurchase obligation or liability, contingent or otherwise, of such Person with
respect to any accounts or notes receivable sold, transferred or otherwise
disposed of by such Person, (b) any repurchase obligation or liability,
contingent or otherwise, of such Person with respect to property or assets
leased by such Person as lessee and (c) all obligations, contingent or
otherwise, of such Person under any Synthetic Lease, tax retention operating
lease, off balance sheet loan or similar off balance sheet financing if the
transaction giving rise to such obligation (i) is considered Indebtedness for
borrowed money for tax purposes but is classified as an operating lease, (ii)
does not (and is not required pursuant to GAAP to) appear as a liability on the
balance sheet of such Person, (iii) a transaction pursuant to which a tenant
does not take possession of the leased property, or (iv) any leases treated as a
financing for GAAP or tax purposes, but excluding from the forgoing provisions
of this definition any obligations or liabilities of any such Person as lessee
under any operating lease so long as the terms of such operating lease do not
require any payment by or on behalf of such Person at the scheduled termination
date of such operating lease, pursuant to a required purchase by or on behalf of
such Person of the property or assets subject to such operating lease, or under
any arrangements pursuant to which such Person guarantees or otherwise assures
any other Person of the value of the property or assets subject to such
operating lease.
"Operating Lease" means, as applied to any Person, any lease (including,
without limitation, leases which may be terminated by the lessee at any time) of
any Property (whether real, personal or mixed) which is not a Capital Lease
other than any such lease in which that Person is the lessor.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Outstanding Amount" means with respect to the Term Loans on any date, the
aggregate outstanding principal amount thereof as of such date.
"Parent Guarantor" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Parent Guarantor Pledge Agreement" means the pledge agreement in the form
of Exhibit B-1 dated as of the Closing Date executed by the Parent Guarantor in
favor of the Collateral Agent for the benefit of the Secured Parties, as
amended, modified, restated or supplemented from time to time.
"Participant" has the meaning specified in Section 11.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Investments" means, at any time, Investments by the Loan Parties
permitted to exist at such time pursuant to the terms of Section 8.02.
"Permitted Liens" means, (a) with respect to the Mortgaged Properties,
Approved Leases and any rights or interests therein, Liens identified on the
Mortgage Commitments with respect thereto or as otherwise consented to by the
Administrative Agent in writing; and (b) with respect to Property of the Loan
Parties not covered under clause (a) of this definition, Liens permitted to
exist at such time pursuant to the terms of Section 8.01.
12
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Pledge Agreements" means a collective reference to the LP Guarantor Pledge
Agreement and the Parent Guarantor Pledge Agreement.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Pro Rata Share" means as to each Lender that is not a Defaulting Lender,
with respect to such Lender's Commitment at any time, a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is
the amount of the Commitment of such Lender at such time and the denominator of
which is the amount of the Aggregate Commitments of all non-Defaulting Lenders
at such time. The initial Pro Rata Share of each Lender is set forth opposite
the name of such Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.
"Purchase Agreement Assignments" means valid, effective and fully executed
assignments by First States Group, L.P. to the Borrower of all rights, title and
interests of First States Group, L.P. in and to the Purchase Agreements or of
all rights, title and interests purchased by First States Group, L.P. pursuant
to the terms of the Purchase Agreements, as applicable.
"Purchase Agreements" means a collective reference to (a) the Purchase
Agreement (Current Interests) and (b) the Purchase Agreement (Remainder
Interests); and "Purchase Agreement" mean either of them, as applicable.
"Purchase Agreement (Current Interests)" means that certain Purchase and
Sale Agreement dated as of December 17, 2002 by and among the 1997-C Owner
Trustee, the 1997-D Owner Trustee, the 1997-C Co-Trustee, the 1997-D Co-Trustee,
RENAT, Inc. (as owner of the beneficial interests under the Trust Agreement
(1997-D) dated as of June 4, 1997 and under the Trust Agreement (1997-C) dated
as of June 4, 1997), ▇▇▇▇ Commercial Credit Corporation (the sole stockholder of
Renat, Inc.) and First States Group, L.P
"Purchase Agreement (Remainder Interests)" means that certain Agreement of
Sale and Purchase dated as of January ___, 2003 by and among REMAN 1997-C, Inc.
(as remainderman under the Trust Agreement 1997-C, referenced in the definition
of the term "Trust Agreement" contained herein), REMAN 1997-D, Inc as
remainderman under the Trust Agreement 1997-D, referenced in the definition of
the term "Trust Agreement" contained herein) and First States Group, L.P
"Register" has the meaning set forth in Section 11.07(c).
"Related Guarantors" means a collective reference to the LP Guarantor and
the Parent Guarantor; and "Related Guarantor" means either of them, as
applicable.
"Remainder Interests" means a collective reference to the Remainders (as
such term is defined in the Purchase Agreement (Remainder Interests)) and all
other rights transferred by the Sellers under the Purchase Agreement (Remainder
Interests).
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Required Lenders" means, at any time, Lenders holding in the aggregate at
least fifty-one percent (51%) of the unfunded Commitments (and participations
therein) and the outstanding Term Loan, or (b) if the Commitments have been
terminated, the outstanding Term Loan. The unfunded Commitments of, and the
outstanding Term Loan held or
13
deemed held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president, vice
president, chief financial officer, treasurer or assistant treasurer of a Loan
Party. Any document delivered hereunder that is signed by a Responsible Officer
of a Loan Party shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.
"Restricted Payment" means (a) any dividend or other payment or
distribution, direct or indirect, on account of any shares of any class of
Capital Stock of any Loan Party, now or hereafter outstanding (including without
limitation any payment in connection with any dissolution, merger, consolidation
or disposition involving any Loan Party), or to the holders, in their capacity
as such, of any shares of any class of Capital Stock of any Loan Party, now or
hereafter outstanding, (b) any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any
shares of any class of Capital Stock of any Loan Party, now or hereafter
outstanding or (c) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of Capital Stock of any Loan Party, now or hereafter outstanding.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto.
"Sale and Leaseback Transaction" means any arrangement pursuant to which
any Loan Party, directly or indirectly, becomes liable as lessee, guarantor or
other surety with respect to any lease, whether an Operating Lease or a Capital
Lease, of any Property (a) which such Loan Party has sold or transferred (or is
to sell or transfer) to a Person which is not a Loan Party or (b) which such
Loan Party intends to use for substantially the same purpose as any other
Property which has been sold or transferred (or is to be sold or transferred) by
such Loan Party to another Person which is not a Loan Party in connection with
such lease.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Secured Parties" means a collective reference to each Lender, each
Affiliate of a Lender that enters into a Swap Contract, the Collateral Agent and
the Administrative Agent; and "Secured Party" means any one of them.
"Solvent" or "Solvency" means, with respect to any Person as of a
particular date, that on such date (a) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they mature
in the ordinary course of business, (b) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature in their ordinary course,
(c) such Person is not engaged in a business or a transaction, and is not about
to engage in a business or a transaction, for which such Person's Property would
constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged or is to
engage, (d) the fair value of the Property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (e) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
"SPE" means a Person whose Organization Documents and other characteristics
satisfy the SPE Requirements.
"SPE Requirements" means a collective reference to the requirements and
conditions set forth on Exhibit D attached hereto.
"Special Guarantors" means a collective reference to the 1997-C Owner
Trustee, the 1997-D Owner Trustee, the 1997-C Co-Trustee and the 1997-D
Co-Trustee, in each case in their capacities as guarantors hereunder; and
"Special Guarantor" means any one of them, as applicable.
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"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of Capital Stock having ordinary voting power for the election of
directors or other governing body (other than Capital Stock having such power
only by reason of the happening of a contingency) are at the time beneficially
owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Tangible Net Worth" means, for any Person as of a given date, total
stockholder's (or equivalent owner's) equity of such Person, excluding (to the
extent reflected in determining stockholders' (or equivalent owner's) equity of
such Person) (a) accumulated depreciation and amortization and (b) the aggregate
amount of all assets which would be properly classified as intangible assets
under GAAP.
"Term Loan" and "Term Loans" each has the meaning specified in Section
2.01.
"Term Note" has the meaning specified in Section 2.01; and "Term Notes"
means any one of them.
"Threshold Amount" means (a) with respect to the Borrower or the Parent
Guarantor, $1,000,000.00 and (b) with respect to the LP Guarantor $5,000,000.00.
"TL/TA Ratio" means, as to any Person and as of any date of calculation, an
amount equal to (a) Total Liabilities of such Person, divided by (b) Total
Assets of such Person.
"Total Assets" means, as to any Person, the total assets of such Person, as
determined in accordance with GAAP.
"Total Liabilities" means, as to any Person, the total liabilities of such
Person, as determined in accordance with GAAP.
"Trust Agreements" means a collective reference to (a) the 1997-C Trust
Agreement; (b) the 1997-D Trust Agreement; and (c) and any and all documents,
instruments, agreements and other arrangements issued or delivered pursuant to
or otherwise related to any of the foregoing, including without limitation, the
"Participation Agreements", as
15
referenced in each of them and the "Operative Documents", as referenced in each
of them (in each case as the same may be amended, modified, restated,
supplemented, extended, renewed or replaced from time to time).
"Trust Documents" means a collective reference to each of (a) the Trust
Indentures; (b) the Trust Agreements; (c) the Participation Agreements; and (d)
all other related agreements, instruments and documents issued or delivered
thereunder or pursuant thereto, (in each case as the same may be amended,
modified, restated, supplemented, extended, renewed or replaced from time to
time); and "Trust Document" means either of them.
"Trust Indentures" means a collective reference to (a) that certain
Indenture, Mortgage, Deed of Trust, Deed to Secure Debt, Assignment of Leases
and Rents, Security Agreement and Financing Statement dated as of June 4, 1997
by and among State Street Bank and Trust Company of Connecticut, National
Association (in its capacity as Owner Trustee under the 1997-C Trust Agreement),
as a Grantor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ (in her capacity as a Co-Trustee under the 1997-C
Trust Agreement), as Grantor, REMAN 1997-C, Inc., as Remainderman and LaSalle
National Bank, as Indenture Trustee, Beneficiary, Mortgagee and Grantee; and (b)
that certain Indenture, Mortgage, Deed of Trust, Deed to Secure Debt, Assignment
of Leases and Rents, Security Agreement and Financing Statement dated as of June
4, 1997 by and among State Street Bank and Trust Company of Connecticut,
National Association (in its capacity as Owner Trustee under the 1997-D Trust
Agreement), as a Grantor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ (in her capacity as a Co-Trustee under
the 1997-D Trust Agreement), as Grantor, REMAN 1997-D, Inc., as Remainderman and
LaSalle National Bank, as Indenture Trustee, Beneficiary, Mortgagee and Grantee
(in each case as the same may be amended, modified, restated, supplemented,
extended, renewed or replaced from time to time)
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"United States" and "U.S." mean the United States of America.
1.02 Other Interpretive Provisions.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and "hereunder" and
words of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to
the Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical
or electronic form.
(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms.
(a) Except as otherwise specifically prescribed herein, all accounting
terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement
shall be prepared in conformity
16
with, GAAP applied on a consistent basis, as in effect from time to time,
applied in a manner consistent with that used in preparing the Delivered
Financial Statements; provided, however, that calculations of Attributable
Indebtedness under any Synthetic Lease Obligations or the implied interest
component of any Synthetic Lease Obligations shall be made by the Borrower in
accordance with accepted financial practice and consistent with the terms of
such Synthetic Lease Obligations.
(b) If at any time any change in GAAP would affect the computation of any
financial ratio, requirement or calculation set forth in any Loan Document, and
either the Borrower or the Required Lenders shall so request, the Administrative
Agent, the Lenders and the Borrower shall negotiate in good faith to amend such
ratio, requirement or calculation to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of the Required Lenders);
provided that, until so amended, (i) such ratio, requirement or calculation
shall continue to be computed in accordance with GAAP prior to such change
therein and (ii) the Borrower shall provide to the Administrative Agent and the
Lenders financial statements and other documents required under this Agreement
or as reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to
such change in GAAP.
1.04 Rounding.
Any financial ratios required to be maintained by the Borrower pursuant to
this Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of places
by which such ratio is expressed herein and rounding the result up or down to
the nearest number (with a rounding-up if there is no nearest number).
1.05 References to Agreements and Laws.
Unless otherwise expressly provided herein, (a) references to Organization
Documents, agreements (including the Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and other
modifications are not prohibited by any Loan Document; and (b) references to any
Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.
1.06 Times of Day.
Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Term Loan; Term Note.
Subject to the terms and conditions set forth herein, each Lender severally
agrees to make a loan (each such loan, a "Term Loan" and, collectively, the
"Term Loans") to the Borrower in an aggregate amount not to exceed the amount of
such Lender's Commitment. Amounts repaid on the Term Loans may not be
reborrowed. The Borrower shall make principal and interest payments on the Term
Loans in accordance with the terms hereof. Each Term Loan shall be evidenced by
a promissory note of the Borrower to the appropriate Lender in substantially the
form of Exhibit C (each a "Term Note").
2.02 Borrowing Procedures.
(a) Notwithstanding anything contained herein to the contrary, (i) the
Borrower shall be entitled to no more than one advance (the "Advance") of the
Term Loans hereunder, (ii) the Advance shall be in an amount equal to or less
than the Maximum Committed Amount and (iii) to the extent the Borrower has not
requested the Advance on or before February 28, 2003, this Note and the Lenders'
respective obligations and commitments to make the Term Loans
17
shall automatically terminate without notice to the Borrower; provided, however,
that Borrower shall remain responsible for payment of all costs and expenses
incurred by the Administrative Agent in accordance with Sections 5.01(l) and
11.04 hereof and for all applicable fees due and owing pursuant to the terms
hereof. The Borrower shall submit an appropriate Loan Notice to the
Administrative Agent not later than 11:00 A.M. (Charlotte, North Carolina time)
on the Business Day most nearly preceding the date on which it desires to
receive the Advance (which date shall be a Business Day). Such Loan Notice shall
be irrevocable, shall specify the amount of the advance requested and the date
on which it request the Advance to be made and shall contain certifications of
an Responsible Officer of the Borrower stating that each of the conditions set
forth in Section 5.01 hereof for the making of the Advance have been satisfied
as of the date of such requested Advance.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Pro Rata Share of the Advance
requested therein and each Lender shall make an its Term Loan (in an amount not
to exceed such Lender's Commitment) available to the Administrative Agent in
immediately available funds at the Administrative Agent's Office not later than
1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 5.01, the
Administrative Agent shall make all funds so received available to the Borrower
in like funds as received by the Administrative Agent by wire transfer of such
funds in accordance with instructions provided to (and reasonably acceptable to)
the Administrative Agent by the Borrower.
2.03 Principal and Interest Payments and Calculation.
(a) Principal Payments. Except to the extent accelerated or otherwise
due sooner pursuant to the provisions hereof or of any other Loan Document, the
Borrower shall not be required to make any principal payments on the Term Loans
until the Maturity Date. The entire principal balance of the Term Loans shall be
due and payable as of the Maturity Date. Notwithstanding anything to the
contrary contained herein, to the extent the principal balance of the Term Loans
is accelerated pursuant to the terms of the Loan Documents, the entire
outstanding principal balance of the Term Loans and all other amounts due under
the Loan Documents shall be immediately due and payable as of the date of such
acceleration.
(b) Interest.
(i) Interest Payment Dates. Borrower shall pay all accrued
interest on the Term Loans on each Interest Payment Date.
(ii) Interest Rate and Computation. Subject to the provisions
of Section 2.03(c), interest shall accrue on the outstanding principal
balance of the Term Loans at the Adjusted LIBOR Rate. All computations
of interest and fees hereunder shall be made on the basis of the actual
number of days elapsed over a year of 360 days. Interest hereunder
shall be due and payable in accordance with the terms hereof before and
after judgment, and before and after the commencement of any proceeding
under any Debtor Relief Law. Interest shall accrue on each Term Loan
for the day on which the Advance is made, and shall not accrue on the
Term Loans, or any portion thereof, for the day on which the Term Loans
or such portion is paid, provided that to the extent any portion of the
Term Loans is repaid on the same day on which they are made, such
portion of the Term Loans shall bear interest for one day.
(c) Default Rate. If any amount payable by the Borrower under any Loan
Document is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, such amount shall
thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.
Furthermore, upon the request of the Required Lenders, while any Event of
Default exists, the Borrower shall pay interest on the principal amount of all
outstanding Obligations hereunder at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws. Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(d) Maximum Interest Rate. Regardless of any provision of any Loan
Document, if for any reason the effective interest hereunder should exceed the
maximum lawful interest, the effective interest hereunder shall be deemed
reduced to, and shall be, such maximum lawful interest, and (i) the amount which
would be excessive
18
interest shall be deemed applied to the reduction of the principal amount of the
Term Loans and not to the payment of interest, and (ii) if the Term Loans have
been or are thereby paid in full, the excess shall be returned to the party
paying same, such application to the principal amount of the Term Loans or the
refunding of excess to be a complete settlement and acquittance thereof.
2.04 Prepayments.
(a) Voluntary Prepayments of Loans. The Borrower may, upon notice to
the Administrative Agent, at any time or from time to time voluntarily prepay
the Term Loans in whole or in part without premium or penalty; provided that (i)
such notice must be received by the Administrative Agent not later than 11:00
a.m. on the date which is one (1) Business Day prior to the date of such
prepayment; and (ii) any such prepayment shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if less, the
entire principal amount thereof then outstanding). The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender's Pro Rata Share of such prepayment. If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein. Any prepayment of the Term Loans or any portion thereof shall be
accompanied by all accrued interest on the portion prepaid, together with any
additional amounts required pursuant to Article III hereof. Each such prepayment
shall be applied to the Term Loans of the Lenders in accordance with their
respective Pro Rata Shares.
(b) Mandatory Prepayments.
(i) Outstanding Principal in Excess of Aggregate Commitments.
If for any reason the Outstanding Amount at any time exceed the
Aggregate Commitments then in effect, the Borrower shall immediately
prepay the Term Loans in an aggregate amount equal to such excess.
(ii) Application of Mandatory Prepayments. All amounts required
to be paid pursuant to this Section 2.04(b) shall be applied to Term
Loans of the Lenders in accordance with their respective Pro Rata
Shares. All prepayments under this Section 2.04(b) shall be subject to
Article III, but otherwise without premium or penalty, and shall be
accompanied by interest on the principal amount prepaid through the
date of prepayment.
2.05 Evidence of Debt.
The Term Loan made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent in
the ordinary course of business. The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Term Loans made by the Lenders to the Borrower and the
interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder to pay any amount owing with respect to the Obligations. In the event
of any conflict between the accounts and records maintained by any Lender and
the accounts and records of the Administrative Agent in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error.
2.06 Payments Generally.
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Pro Rata Share (or other applicable share as provided herein) of
such payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue.
19
(b) If any payment to be made by the Borrower shall come due on a day
other than a Business Day, payment shall be made on the next following Business
Day, and such extension of time shall be reflected in computing interest or
fees, as the case may be.
(c) Unless the Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrower or such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if the Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made available to such Lender
in immediately available funds, together with interest thereon in
respect of each day from and including the date such amount was made
available by the Administrative Agent to such Lender to the date such
amount is repaid to the Administrative Agent in immediately available
funds at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof
in immediately available funds, together with interest thereon for the
period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender's Term Loan included in
the Advance. If such Lender does not pay such amount forthwith upon
the Administrative Agent's demand therefor, the Administrative Agent
may make a demand therefor upon the Borrower, and the Borrower shall
pay such amount to the Administrative Agent, together with interest
thereon for the Compensation Period at a rate per annum equal to the
Adjusted LIBOR Rate. Nothing herein shall be deemed to relieve any
Lender from its obligation to fulfill its Commitment or to prejudice
any rights which the Administrative Agent or the Borrower may have
against any Lender as a result of any default by such Lender
hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (c) shall be conclusive,
absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds
for any Loan to be made by such Lender as provided in the foregoing provisions
of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions precedent set forth in Article V are
not satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.
(e) The obligations of the Lenders hereunder to make their respective
Term Loans are several and not joint. The failure of any Lender to make any Term
Loan on any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Term Loan.
(f) Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Term Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Term Loan in any particular place or manner.
2.07 Sharing of Payments.
If, other than as expressly provided elsewhere herein, any Lender shall
obtain on account of the Term Loan made by it any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its ratable share (or other share contemplated hereunder) thereof,
such Lender shall immediately (a) notify the Administrative Agent of such fact,
and (b) purchase from the other Lenders such participations in the
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Term Loans made by them as shall be necessary to cause such purchasing Lender to
share the excess payment in respect of such Term Loans or such participations,
as the case may be, pro rata with each of them; provided, however, that if all
or any portion of such excess payment is thereafter recovered from the
purchasing Lender under any of the circumstances described in Section 11.06
(including pursuant to any settlement entered into by the purchasing Lender in
its discretion), such purchase shall to that extent be rescinded and each other
Lender shall repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender's ratable share (according
to the proportion of (i) the amount of such paying Lender's required repayment
to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect of
the total amount so recovered, without further interest thereon. The Borrower
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 11.09) with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. The Administrative Agent will keep
records (which shall be conclusive and binding in the absence of manifest error)
of participations purchased under this Section and will in each case notify the
Lenders following any such purchases or repayments. Each Lender that purchases a
participation pursuant to this Section shall from and after such purchase have
the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Any and all payments by any Loan Party or Special Guarantor to or
for the account of the Administrative Agent or any Lender under any Loan
Document shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and all liabilities with respect thereto,
excluding, in the case of the Administrative Agent and each Lender, taxes
imposed on or measured by its overall net income, and franchise taxes imposed on
it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the Laws of which the Administrative Agent or such
Lender, as the case may be, is organized or maintains a lending office (all such
non-excluded taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being hereinafter referred to
as "Taxes"). If any Loan Party or Special Guarantor shall be required by any
Laws to deduct any Taxes from or in respect of any sum payable under any Loan
Document to the Administrative Agent or any Lender, (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section), each of
the Administrative Agent and such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Loan Party or
Special Guarantor shall make such deductions, (iii) such Loan Party or Special
Guarantor shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable Laws, and (iv) within 30 days
after the date of such payment, such Loan Party or Special Guarantor shall
furnish to the Administrative Agent (which shall forward the same to such
Lender) the original or a certified copy of a receipt evidencing payment
thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time interest
is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all
taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.
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(d) The Borrower agrees to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by the Administrative Agent and such Lender, (ii) amounts
payable under Section 3.01(c) and (iii) any liability (including additions to
tax, penalties, interest and expenses) arising therefrom or with respect
thereto, in each case whether or not such Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. Payment
under this subsection (d) shall be made within 30 days after the date the Lender
or the Administrative Agent makes a demand therefor.
3.02 Increased Cost and Reduced Return; Capital Adequacy; Reserves on
Loans.
(a) If any Lender determines that as a result of the introduction of
or any change in or in the interpretation of any Law, or such Lender's
ompliance therewith, there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining the Term Loans or a reduction
in the amount received or receivable by such Lender in connection with any of
the foregoing (excluding for purposes of this subsection (a) any such increased
costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to
which Section 3.01 shall govern), (ii) changes in the basis of taxation of
overall net income or overall gross income by the United States or any foreign
jurisdiction or any political subdivision of either thereof under the Laws of
which such Lender is organized or has its Lending Office, and (iii) reserve
requirements contemplated by Section 3.02(c)), then from time to time upon
demand of such Lender (with a copy of such demand to the Administrative Agent),
the Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof, or compliance by such Lender (or its Lending Office) therewith, has the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time to
time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.
(c) The Borrower shall pay to each Lender, as long as such Lender
shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional interest on the unpaid principal amount
of each Term Loan equal to the actual costs of such reserves allocated to such
Term Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which shall be due and payable on each date
on which interest is payable on such Term Loan.
3.03 Funding Losses.
Upon demand of any Lender (with a copy to the Administrative Agent)
from time to time, the Borrower shall promptly compensate such Lender for and
hold such Lender harmless from any loss, cost or expense incurred by it as a
result of:
(a) any payment or prepayment of any Term Loan on a day other
than on the Maturity Date (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise); or
(b) any failure by the Borrower (for a reason other than the
failure of such Lender to make a Term Loan) to prepay or borrow any
Term Loan on the date or in the amount notified by the Borrower;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Term
Loan or from fees payable to terminate the deposits from which such funds were
obtained. The Borrower shall also pay any customary administrative fees charged
by such Lender in connection with the foregoing.
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3.04 Matters Applicable to all Requests for Compensation.
A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
3.05 Survival.
All of the Borrower's obligations under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other Obligations
hereunder.
ARTICLE IV
GUARANTY
4.01 The Guaranty.
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each Affiliate of a Lender that enters into a Swap Contract with the
Borrower, and the Administrative Agent, as primary obligor and not as surety,
the prompt payment of the Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in accordance with the terms thereof.
The Guarantors hereby further agree that if any of the Obligations are not paid
in full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise), the
Guarantors will, jointly and severally, promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Obligations, the same will be promptly paid in
full when due (whether at extended maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) in accordance
with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in
any other of the Loan Documents or Swap Contracts: (a) the obligations of each
Guarantor under this Agreement and the other Loan Documents shall be limited to
an aggregate amount equal to the largest amount that would not render such
obligations subject to avoidance under the Debtor Relief Laws or any comparable
provisions of any applicable state law; and (b) the obligations and liabilities
of each Special Guarantor under this Agreement and the other Loan Documents
shall be limited to each such Special Guarantor's right, title and interest in
the Mortgaged Properties, the Approved Leases and all proceeds and products
thereof and any other property constituting a portion of the corpus under the
owner trust created pursuant to the terms of the Trust Documents.
4.02 Obligations Unconditional.
The obligations of the Guarantors under Section 4.01 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Loan Documents or Swap
Contracts, or any other agreement or instrument referred to therein, or any
substitution, release, impairment or exchange of any other guarantee of or
security for any of the Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 4.02 that the obligations of the
Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower or
any other Guarantor for amounts paid under this Article IV until such time as
the Obligations have been Fully Satisfied. Without limiting the generality of
the foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the
liability of any Guarantor hereunder which shall remain absolute and
unconditional as described above:
(a) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of
the Obligations shall be extended, or such performance or compliance
shall be waived;
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(b) any of the acts mentioned in any of the provisions of any
of the Loan Documents, any Swap Contract between Borrower and any
Lender, or any Affiliate of a Lender, or any other agreement or
instrument referred to in the Loan Documents or such Swap Contracts
shall be done or omitted;
(c) the maturity of any of the Obligations shall be
accelerated, or any of the Obligations shall be modified, supplemented
or amended in any respect, or any right under any of the Loan
Documents, any Swap Contract between Borrower and any Lender, or any
Affiliate of a Lender, or any other agreement or instrument referred to
in the Loan Documents or such Swap Contracts shall be waived or any
other guarantee of any of the Obligations or any security therefor
shall be released, impaired or exchanged in whole or in part or
otherwise dealt with;
(d) any Lien granted to, or in favor of, the Administrative
Agent or any Lender or Lenders as security for any of the Obligations
shall fail to attach or be perfected; or
(e) any of the Obligations shall be determined to be void or
voidable (including, without limitation, for the benefit of any
creditor of any Guarantor) or shall be subordinated to the claims of
any Person (including, without limitation, any creditor of any
Guarantor).
With respect to its obligations hereunder, each Guarantor hereby
expressly waives diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that the Administrative Agent or any
Lender exhaust any right, power or remedy or proceed against any Person under
any of the Loan Documents, any Swap Contract between Borrower and any Lender, or
any Affiliate of a Lender, or any other agreement or instrument referred to in
the Loan Documents or such Swap Contracts, or against any other Person under any
other guarantee of, or security for, any of the Obligations.
4.03 Reinstatement.
The obligations of the Guarantors under this Article IV shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each Lender
on demand for all reasonable costs and expenses (including, without limitation,
fees and expenses of counsel) incurred by the Administrative Agent or such
Lender in connection with such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging that such
payment constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or similar law.
4.04 Certain Additional Waivers.
Each Guarantor further agrees that such Guarantor shall have no right
of recourse to security for the Obligations, except through the exercise of
rights of subrogation pursuant to Section 4.02 and through the exercise of
rights of contribution pursuant to Section 4.06.
4.05 Remedies.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, the Obligations may be declared to be forthwith due
and payable as provided in Section 9.02 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section
9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Obligations from
becoming automatically due and payable) as against any other Person and that, in
the event of such declaration (or the Obligations being deemed to have become
automatically due and payable), the Obligations (whether or not due and payable
by any other Person) shall forthwith become due and payable by the Guarantors
for purposes of Section 4.01. The Guarantors acknowledge and agree that their
obligations hereunder are secured in accordance with the terms of the Collateral
Documents and that the Lenders may exercise their remedies thereunder in
accordance with the terms thereof.
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4.06 Rights of Contribution.
The Guarantors hereby agree as among themselves that, if any Guarantor
shall make an Excess Payment (as defined below), such Guarantor shall have a
right of contribution from each other Guarantor in an amount equal to such other
Guarantor's Contribution Share (as defined below) of such Excess Payment. The
payment obligations of any Guarantor under this Section 4.06 shall be
subordinate and subject in right of payment to the Obligations until such time
as the Obligations have been Fully Satisfied, and none of the Guarantors shall
exercise any right or remedy under this Section 4.06 against any other Guarantor
until such Obligations have been Fully Satisfied. For purposes of this Section
4.06, (a) "Excess Payment" shall mean the amount paid by any Guarantor in excess
of its Ratable Share of any Guaranteed Obligations; (b) "Ratable Share" shall
mean, for any Guarantor in respect of any payment of Obligations, the ratio
(expressed as a percentage) as of the date of such payment of Guaranteed
Obligations of (i) the amount by which the aggregate present fair salable value
of all of its assets and properties exceeds the amount of all debts and
liabilities of such Guarantor (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder) to (ii) the amount by which the aggregate present fair salable value
of all assets and other properties of all of the Loan Parties and Special
Guarantors (to the extent at risk under the terms of this Agreement) exceeds the
amount of all of the debts and liabilities (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of the
Loan Parties and Special Guarantors hereunder) of the Loan Parties and Special
Guarantors; provided, however, that, for purposes of calculating the Ratable
Shares of the Guarantors in respect of any payment of Obligations, any Guarantor
that became a Guarantor subsequent to the date of any such payment shall be
deemed to have been a Guarantor on the date of such payment and the financial
information for such Guarantor as of the date such Guarantor became a Guarantor
shall be utilized for such Guarantor in connection with such payment; (c)
"Contribution Share" shall mean, for any Guarantor in respect of any Excess
Payment made by any other Guarantor, the ratio (expressed as a percentage) as of
the date of such Excess Payment of (i) the amount by which the aggregate present
fair salable value of all of its assets and properties exceeds the amount of all
debts and liabilities of such Guarantor (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of such
Guarantor hereunder) to (ii) the amount by which the aggregate present fair
salable value of all assets and other properties of the Loan Parties and Special
Guarantors (to the extent at risk under this Agreement) other than the maker of
such Excess Payment exceeds the amount of all of the debts and liabilities
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of the Loan Parties) of the Loan Parties and
Special Guarantors other than the maker of such Excess Payment; provided,
however, that, for purposes of calculating the Contribution Shares of the
Guarantors in respect of any Excess Payment, any Guarantor that became a
Guarantor subsequent to the date of any such Excess Payment shall be deemed to
have been a Guarantor on the date of such Excess Payment and the financial
information for such Guarantor as of the date such Guarantor became a Guarantor
shall be utilized for such Guarantor in connection with such Excess Payment; and
(d) "Guaranteed Obligations" shall mean the Obligations guaranteed by the
Guarantors pursuant to this Article IV. This Section 4.06 shall not be deemed to
affect any right of subrogation, indemnity, reimbursement or contribution that
any Guarantor may have under Law against the Borrower in respect of any payment
of Guaranteed Obligations.
4.07 Guarantee of Payment; Continuing Guarantee.
The guarantee in this Article IV is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Obligations
whenever arising.
ARTICLE V
CONDITIONS PRECEDENT TO CLOSING AND ADVANCE
5.01 Conditions Precedent.
The obligation of the Administrative Agent and Lenders to enter into
this Agreement and to make the Advance under the Term Loans shall be subject to
satisfaction of the following conditions (in form and substance reasonably
acceptable to the Administrative Agent) as of the Closing Date (with respect to
the Administrative Agent's and Lenders' entering into this Agreement) and as of
the Advance Date (with respect to the Advance):
(a) Loan Documents, Organization Documents, Etc. The Administrative
Agent's receipt of the following, each of which shall be originals or
facsimiles (followed promptly by originals) unless
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otherwise specified, each properly executed by a Responsible Officer of
the signing Loan Party, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the
Closing Date) and each in form and substance satisfactory to the
Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement;
(ii) Term Notes executed by the Borrower in favor of
each Lender and executed counterparts of each of the other
Loan Documents;
(iii) copies of the Organization Documents of each
Loan Party certified to be true and complete as of a recent
date by the appropriate Governmental Authority of the state or
other jurisdiction of its incorporation or organization, where
applicable, and certified by a secretary or assistant
secretary of such Loan Party to be true and correct as of the
Closing Date;
(iv) such certificates of resolutions or other
action, incumbency certificates and/or other certificates of
Responsible Officers of each Loan Party as the Administrative
Agent may require evidencing the identity, authority and
capacity of each Responsible Officer thereof authorized to act
as a Responsible Officer in connection with this Agreement and
the other Loan Documents to which such Loan Party is a party;
and
(v) such documents and certifications as the
Administrative Agent may reasonably require to evidence that
each of the Loan Parties is duly organized or formed, and is
validly existing, in good standing and qualified to engage in
business in (A) the jurisdiction of its incorporation or
organization and (B) each jurisdiction where its ownership,
lease or operation of properties or the conduct of its
business requires such qualification, except to the extent
that failure to do so could not reasonably be expected to have
a Material Adverse Effect.
(b) Opinions of Counsel. The Administrative Agent shall
have received, in each case dated as of the Closing Date and in form
and substance reasonably satisfactory to the Administrative Agent:
(i) a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇,
general counsel for the Loan Parties;
(ii) a legal opinion of special local counsel for
each Loan Party not organized in the State of Delaware; and
(iii) a legal opinion of special local counsel for
the Loan Parties for each state in which any Mortgaged
Property is located.
(c) Personal Property Collateral. The Administrative
Agent shall have received:
(i) UCC financing statements for each appropriate
jurisdiction as is necessary, in the Administrative Agent's
sole discretion, to perfect the Administrative Agent's
security interest in the Collateral;
(ii) all certificates evidencing any certificated
Capital Stock pledged to the Administrative Agent pursuant to
the Security Agreement, together with duly executed in blank,
undated stock powers attached thereto;
(iii) duly executed notices of grant of security
interest in the form required by the Security Agreement as are
necessary, in the Administrative Agent's sole discretion, to
perfect the Administrative Agent's security interest in the
Collateral;
(iv) all instruments and chattel paper in the
possession of any of the Loan Parties, together with allonges
or assignments as may be necessary or appropriate to perfect
the Administrative Agent's security interest in the
Collateral;
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(v) duly executed consents as are necessary, in the
Administrative Agent's sole discretion, to perfect the
Administrative Agent's security interest in the Collateral;
(vi) duly executed notices of grant of security
interest in the form required by the Security Agreement as are
necessary, in the Administrative Agent's sole discretion, to
perfect the Administrative Agent's security interest in the
Collateral; and
(vii) in the case of any personal property Collateral
located at a premises leased by a Loan Party, such estoppel
letters, consents and waivers from the landlords on such real
property as may be required by the Administrative Agent.
(d) Real Property Collateral and Related Matters. The
Administrative Agent shall have received each of the following:
(i) with respect to each of the Mortgaged
Properties, fully executed and notarized (A) Mortgage
Instruments, and (B) Assignments of Leases, in each case in
recordable form and encumbering the Remainder Interest of the
Borrower in such Mortgaged Properties and all interests of the
Special Guarantors with respect thereto (which interests,
together with the Borrower's Remainder Interests, shall
constitute one hundred percent of the ownership interests of
each such Mortgaged Property, subject only to those matters
set forth on the applicable Mortgage Commitments);
(ii) maps or plats of an as-built survey of the
sites of the real property covered by the Mortgage Instruments
certified to the Administrative Agent and the title insurance
company issuing the commitments referred to in Section
5.01(d)(iii) in a manner reasonably satisfactory to each of
the Administrative Agent and the applicable title insurance
company, dated a date reasonably satisfactory to each of the
Administrative Agent and the applicable title insurance
company by an independent professional licensed land surveyor,
which maps or plats and the surveys on which they are based
shall be sufficient to delete any standard printed survey
exception contained in the applicable title commitment and be
made in accordance with the Minimum Standard Detail
Requirements for Land Title Surveys jointly established and
adopted by the American Land Title Association and the
American Congress on Surveying and Mapping in 1997 with all
items from Table A thereof completed, except for Nos. 5 and
12;
(iii) commitments, in form and substance acceptable
to the Administrative Agent, for ALTA mortgagee title
insurance policies to be issued by Chicago Title Insurance
Company (the "Mortgage Commitments") with respect to each
Mortgaged Property, assuring the Administrative Agent that
each of the Mortgage Instruments (taken as a whole) creates a
valid and enforceable first priority mortgage lien on the
applicable Mortgaged Property, free and clear of all defects
and encumbrances except Permitted Liens, which Mortgage
Commitments shall otherwise be in form and substance
reasonably satisfactory to the Administrative Agent and shall
include such endorsements as are reasonably requested by the
Administrative Agent;
(iv) evidence as to (A) whether any Mortgaged
Property is in an area designated by the Federal Emergency
Management Agency as having special flood or mud slide hazards
(a "Flood Hazard Property") and (B) if any Mortgaged Property
is a Flood Hazard Property, (1) whether the community in which
such Mortgaged Property is located is participating in the
National Flood Insurance Program, (2) the Borrower's written
acknowledgment of receipt of written notification from the
Administrative Agent (a) as to the fact that such Mortgaged
Property is a Flood Hazard Property and (b) as to whether the
community in which each such Flood Hazard Property is located
is participating in the National Flood Insurance Program and
(3) copies of insurance policies or certificates of insurance
of the Borrower or the applicable tenant evidencing flood
insurance satisfactory to the Administrative Agent and naming
the Administrative Agent as sole loss payee on behalf of the
Lenders under a standard mortgagee endorsement;
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(v) evidence reasonably satisfactory to the
Administrative Agent that each of the Mortgaged Properties,
and the uses of the Mortgaged Properties, are in compliance in
all material respects with all applicable zoning laws (the
evidence submitted as to which should include the zoning
designation made for each of the Mortgaged Properties, the
permitted uses of each such Mortgaged Properties under such
zoning designation and, if available, zoning requirements as
to parking, lot size, ingress, egress and building setbacks);
(vi) copies of the most recent environmental
reports or assessments in the possession of any Loan Party
with respect to the environmental condition of each of the
Mortgaged Properties and any other earlier or supplemental
reports or assessments in the possession of any Loan Party
requested by the Administrative Agent in connection therewith;
(vii) evidence that Borrower has obtained one
hundred percent (100.0%) of the Remainder Interests applicable
to each of the Mortgaged Properties (or will, immediately upon
the funding of the Advance, obtain such interests) and that
the Special Guarantors own legal title to each such Mortgaged
Property for the sole benefit of the Borrower pursuant to the
terms of the Trust Documents;
(viii) copies of each Approved Lease and all
amendments, modifications, supplements or other documents
related thereto;
(ix) such consents and agreements, estoppel(s)
and/or subordination, non-disturbance and attornment
agreement(s) from each tenant under each Approved Lease and
from the lessor(s) under each Approved Lease, in each case in
form and substance acceptable to the Administrative Agent, as
may be required by the Administrative Agent and the Lenders
(in their sole discretion) as conditions precedent to the
effectiveness of this Agreement or the making of the Advance;
and
(x) to the extent required by FIRREA, an appraisal
of each Mortgaged Property satisfying the requirements of
FIRREA.
(e) Financial Information. Receipt by the Administrative
Agent of such financial information regarding any Loan Party as may be
requested by, and in each case in form and substance satisfactory to,
the Administrative Agent.
(f) Evidence of Insurance. Receipt by the Administrative
Agent of copies of insurance policies or certificates of insurance of
the Borrower evidencing liability and casualty insurance meeting the
requirements set forth in the Loan Documents and the Approved Leases.
(g) Government Consent. Receipt by the Administrative
Agent of evidence that all governmental, shareholder and material third
party consents and approvals necessary or desirable in connection with
the consummation of the transactions described herein and expiration of
all applicable waiting periods without any action being taken by any
authority that could restrain, prevent or impose any material adverse
conditions on the transactions described herein or that could seek or
threaten any of the foregoing, and no law or regulation shall be
applicable which in the judgment of the Administrative Agent could have
such effect.
(h) Officer's Certificates. The Administrative Agent
shall have received a certificate or certificates executed by a
Responsible Officer of the Borrower as of the Closing Date/Advance Date
(as applicable), in form and substance satisfactory to the
Administrative Agent, stating that (A) the conditions specified in
Section 5.01 have been satisfied, (B) each of the Loan Parties is in
compliance with all existing material financial obligations, (C) all
governmental, shareholder and third party consents and approvals, if
any, with respect to the Loan Documents and the transactions
contemplated thereby have been obtained (and attaching copies thereof),
(D) no action, suit, investigation or proceeding is pending or
threatened in any court or before any arbitrator or governmental
instrumentality that purports to affect any Loan Party or any
transaction contemplated by the Loan Documents, if such action, suit,
investigation or proceeding could have a Material Adverse Effect, and
(E) immediately after giving effect to the Transaction, (1) no Default
or Event of
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Default exists, (2) all representations and warranties contained herein
and in the other Loan Documents are true and correct in all material
respects and (3) the LP Guarantor will be in compliance with the
financial covenants set forth in Section 7.17 both immediately prior to
and immediately following the making of the Advance.
(i) Solvency. The Administrative Agent shall have received a
certificate executed by a Responsible Officer of the Borrower as of the
Closing Date, in form and substance satisfactory to the Administrative
Agent, regarding the Solvency of each of the Loan Parties.
(j) FR Form U-1. Receipt by the Administrative Agent of a
statement, in conformity with the requirements of FR Form U-1 referred
to in Regulation U, that the use of proceeds of the Term Loans will not
violate Regulate U or X of the FRB.
(k) Engagement Letter. On or before the Closing Date, the
Borrower shall have delivered to the Administrative Agent a fully
executed version of the Engagement Letter and shall have paid to the
Administrative Agent all fees required to be paid as of such date.
(l) Fees and Expenses. The Borrower shall have paid all
Attorney Costs of the Administrative Agent to the extent invoiced prior
to or on the Closing Date/Advance Date (as applicable), plus such
additional amounts of Attorney Costs as shall constitute its reasonable
estimate of Attorney Costs incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter
preclude a final settling of accounts between the Borrower and the
Administrative Agent). In addition, the Loan Parties shall have paid to
the Administrative Agent all other fees and expenses relating to the
preparation, execution and delivery of this Agreement and the other
Loan Documents which are due and payable on the Closing Date/Advance
Date (as applicable), including, without limitation, payment to the
Administrative Agent of consultants' fees, travel expenses, all fees
and expenses associated with prior transactions entered into or
contemplated by and between Borrower and the Administrative Agent and
all other fees and expenses due and then-owing from the Loan Parties to
the Bank pursuant to the terms hereof.
(m) SPE Status. Evidence, satisfactory to the Administrative
Agent, that each of the Borrower and the Parent Guarantor qualifies as
a SPE and that the execution and performance by the Loan Parties under
the Loan Documents shall not affect such status.
(n) Other Information. Receipt by the Lenders of such other
documents, instruments, agreements or information as reasonably
requested by any Lender, including, but not limited to, information
regarding litigation, tax, accounting, labor, insurance, pension
liabilities (actual or contingent), real estate leases, material
contracts, debt agreements, property ownership and contingent
liabilities of the Loan Parties.
(o) Representations and Warranties. The representations and
warranties of the Borrower and each other Loan Party and Special
Guarantor contained in Article VI or any other Loan Document, or which
are contained in any document furnished at any time under or in
connection herewith or therewith, shall be true and correct on and as
of the applicable date (except for those which expressly relate to an
earlier date).
(p) Defaults; Events of Default. No Default or Event of
Default shall exist and be continuing either prior to or after giving
effect to the closing with respect to this Agreement or the Advance, as
applicable.
(q) Bankruptcy Events. There shall not have occurred a
Bankruptcy Event with respect to any Loan Party or any Special
Guarantor.
(r) Material Adverse Effect. No event, circumstance, or
condition shall exist or shall have occurred and be continuing which
has or could reasonably be expected to have a Material Adverse Effect.
(s) Direct Payment to Account. Borrower, as holder of the
beneficiary interests under the Trust Documents, shall have delivered
an Irrevocable Direction to each lessor under the Approved Leases. Each
of the lessors under each Approved Lease shall have directed each of
the tenants under the applicable Approved Lease to deposit all payments
under or with respect to such Approved Lease in accordance with
instructions
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provided by the Administrative Agent. Each tenant under the Approved
Lease shall have executed an acknowledgement and consent (in form and
substance acceptable to the Administrative Agent) agreeing, among
other things, to make payments under the applicable Approved Lease(s)
only into an account specified by the Administrative Agent.
(t) Request for Advance. With respect to the Advance Date, the
Administrative Agent shall have received a Loan Notice in accordance
with the requirements hereof and directing payment of the funds
borrowed under the Advance to the applicable sellers under the Purchase
Agreements and as may be otherwise required to effectuate the repayment
of the Indebtedness and obligations and the cancellation and release of
the security interests and other Liens referenced in Sections
5.01(v)(i) and (ii).
(u) Satisfaction of Purchase Agreement Conditions Precedent;
Assignments of Purchase Agreement Rights. All conditions precedent set
forth in the Purchase Agreements shall have been fully satisfied except
to the extent (i) communicated in writing to the Administrative Agent
and (ii) acceptable to the Administrative Agent in its sole discretion
and Administrative Agent shall have received evidence of same and the
Administrative Agent shall have received copies of the Purchase
Agreement Assignments in form and substance acceptable to the
Administrative Agent.
(v) Termination of Trust Agreement Indebtedness and Security;
Applicable Consents. The Administrative Agent shall have received
evidence satisfactory to it in its sole discretion that (i) all
Indebtedness and security interests created by or in connection with
the Trust Documents or any documents related thereto shall, by payment
of the Advance, together with other funds supplied by Borrower or its
Affiliates, to the sellers under the Purchase Agreements in accordance
with the Loan Notice referenced in clause (t) above, be terminated,
released and cancelled (as applicable); which evidence may, at the
option of the Administrative Agent, include such consents,
acknowledgements and agreements from the grantors, remaindermen,
beneficiaries, mortgagees and/or grantees under the Trust Documents as
may be required by the Administrative Agent; (ii) all other
Indebtedness and other obligations in any way secured by any Lien on
the Mortgaged Properties or the Approved Leases (or any payments, funds
or proceeds related thereto) shall, on or prior to the Advance Date, be
terminated, released and cancelled (as applicable); (iii) the only
lessors under the Approved Leases shall, as of the Advance Date, be one
or more of the Special Guarantors and (iv) the Borrower will, as of the
making of the Advance, own all Remainder Interests with respect to the
Mortgaged Properties and own one hundred percent (100.0%) of the
beneficial interests under the Trust Documents.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Loan Parties (and, where expressly noted, the Special Guarantors)
represent and warrant to the Administrative Agent and the Lenders that:
6.01 Existence, Qualification and Power; Compliance with Laws.
Each Loan Party (a) is duly organized or formed, validly existing and
in good standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own its
assets and carry on its business and (ii) execute, deliver and perform its
obligations under the Loan Documents to which it is a party and (c) is duly
qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license; except in each
case referred to in clause (b)(i) or (c), to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect. Each Special
Guarantor has all requisite power and authority and all requisite governmental
licenses, authorizations, consents and approvals to execute, deliver and perform
its obligations under the Loan Documents to which it is a party.
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6.02 Authorization; No Contravention.
The execution, delivery and performance by each Loan Party and each
Special Guarantor of each Loan Document to which such Person is party, have been
duly authorized by all necessary corporate or other organizational action, and
do not and will not (a) contravene the terms of any of such Person's
Organization Documents (as applicable); (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, (i) any
Contractual Obligation to which such Person is a party or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject; or (c) violate any Law
(including, without limitation, Regulation U or Regulation X issued by the FRB).
6.03 Governmental Authorization; Other Consents.
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, any Loan Party or any Special Guarantor of this
Agreement or any other Loan Document, except for (a) consents, authorizations,
notices and filings described in Schedule 6.03, all of which have been obtained
or made or have the status described in such Schedule 6.03 and (b) filings to
perfect the Liens created by the Collateral Documents.
6.04 Binding Effect.
This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party and
each Special Guarantor that is party thereto. This Agreement constitutes, and
each other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party or Special Guarantor (as applicable),
enforceable against each Loan Party and each Special Guarantor that is party
thereto in accordance with its terms except as enforceability may be limited by
applicable Debtor Relief Laws and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
6.05 Financial Statements; No Material Adverse Effect.
(a) The Delivered Financial Statements (i) were prepared in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; (ii) fairly present the financial
condition of the LP Guarantor as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the LP Guarantor as of the date thereof, including
liabilities for taxes, material commitments and Indebtedness. Schedule 6.05 sets
forth all material indebtedness and other liabilities, direct or contingent, of
the LP Guarantor as of the date of such financial statements, including
liabilities for taxes, material commitments and Indebtedness. Neither the
Borrower nor the Parent Guarantor has any indebtedness or other liabilities,
direct or contingent, as of the date of this Agreement as of the Agreement Date
other than under the Loan Documents.
(b) During the period from November 30, 2002 to and including the
Closing Date, there has been no sale, transfer or other disposition by any Loan
Party of any material part of the business or Property of a Loan Party and no
purchase or other acquisition by either of them of any business or property
(including any Capital Stock of any other Person) material in relation to the
consolidated financial condition of either of the Loan Parties, in each case,
which is not reflected in the foregoing financial statements or in the notes
thereto and has not otherwise been disclosed in writing to the Lenders on or
prior to the Closing Date.
(c) The financial information provided pursuant to Section 7.01 has
been prepared in accordance with GAAP except as otherwise noted therein and
approved by the Administrative Agent.
(d) Since September 10, 2002, there has been no event or
circumstance, either individually or in the aggregate, that has had or could
reasonably be expected to have a Material Adverse Effect.
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6.06 Litigation.
There are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of the Loan Parties after due and diligent investigation,
threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against any Loan Party or against any of its
properties or revenues that (a) purport to affect or pertain to this Agreement
or any other Loan Document, or any of the transactions contemplated hereby or
(b) either individually or in the aggregate, if determined adversely, could
reasonably be expected to have a Material Adverse Effect.
6.07 No Default.
No Loan Party or Special Guarantor is in default under or with respect
to any Contractual Obligation that could, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. No Default
has occurred and is continuing or would result from the consummation of the
transactions contemplated by this Agreement or any other Loan Document. No
Special Guarantor has violated any material terms or conditions set forth in any
Trust Document.
6.08 Ownership of Property; Liens.
The Borrower owns (or shall, as of the making of the Advance, own) all
Remainder Interests with respect to the Mortgaged Properties and own one hundred
percent (100.0%) of the beneficial interests under the Trust Documents. The
Borrower's Remainder Interests in the Mortgaged Properties represent all real
property interests of the Borrower. The Borrower has no rights or interests in
any real or personal property except its Remainder Interests in the Mortgaged
Properties, its beneficial interests under the Trust Documents and property
appurtenant to either. All such Property of the Borrower is subject to no Liens,
other than Permitted Liens. Each Loan Party has good record and marketable title
in fee simple to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of its business, except for such defects in
title as could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. The Special Guarantors hold legal title to the
Mortgaged Properties pursuant to the Trust Documents subject to no Liens other
than the beneficial interests of the Borrower and as otherwise reflected on the
Mortgage Commitments. All lessors under the Approved Leases are Special
Guarantors.
6.09 Environmental Compliance.
Except as disclosed and described in Schedule 6.09 attached hereto:
(a) Each of the Mortgaged Properties and, to the knowledge of
the Loan Parties, all operations thereon are in compliance with all
applicable Environmental Laws, there is no violation of any
Environmental Law with respect to the Mortgaged Properties or the
Businesses, and there are no conditions relating to the Mortgaged
Properties or the Businesses that could give rise to liability under
any applicable Environmental Laws.
(b) None of the Mortgaged Properties contains, or has
previously contained, any Hazardous Materials at, on or under the
Mortgaged Properties in amounts or concentrations that constitute or
constituted a violation of, or could give rise to liability under,
Environmental Laws.
(c) No Loan Party has received any written or verbal notice
of, or inquiry from any Governmental Authority regarding, any
violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Mortgaged Properties or
the Businesses, nor does any Responsible Officer of any Loan Party have
knowledge or reason to believe that any such notice will be received or
is being threatened.
(d) Hazardous Materials have not been transported or disposed
of from the Mortgaged Properties, or generated, treated, stored or
disposed of at, on or under any of the Mortgaged Properties or any
other location, in each case by or on behalf of any Loan Party in
violation of, or in a manner that could give rise to liability under,
any applicable Environmental Law.
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(e) No judicial proceeding or governmental or administrative
action is pending or, to the best knowledge of the Responsible Officers
of the Loan Parties, threatened, under any Environmental Law to which
any Loan Party is or will be named as a party, nor are there any
consent decrees or other decrees, consent orders, administrative orders
or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Loan
Parties, the Mortgaged Properties or the Businesses.
(f) To the knowledge of the Loan Parties, there has been no
release, or threat of release, of Hazardous Materials at or from the
Mortgaged Properties, or arising from or related to the operations
(including, without limitation, disposal) of any Loan Party in
connection with the Mortgaged Properties or otherwise in connection
with the Businesses, in violation of or in amounts or in a manner that
could give rise to liability under Environmental Laws.
6.10 Insurance.
The Mortgaged Properties are insured by either the Borrower or the
applicable tenant with financially sound and reputable insurance companies not
Affiliates of the Borrower or the applicable tenant under the subject Approved
Lease, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where such Mortgaged Properties are located.
The present insurance coverage with respect to the Mortgaged Properties is
outlined as to carrier, policy number, expiration date, type and amount on
Schedule 6.10.
6.11 Taxes.
Each of the Loan Parties and Special Guarantors have filed all Federal,
state and other material tax returns and reports required to be filed, and have
paid all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Borrower that would, if made, have a Material Adverse
Effect.
6.12 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the best
knowledge of the Loan Parties, nothing has occurred which would prevent, or
cause the loss of, such qualification. Each Loan Party and each ERISA Affiliate
have made all required contributions to each Plan subject to Section 412 of the
Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.
(b) There are no pending or, to the best knowledge of the Loan
Parties, threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that could be reasonably be expected to have
a Material Adverse Effect. There has been no prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan that has resulted
or could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) no Loan
Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA with respect to any Pension Plan (other than
premiums due and not delinquent under Section 4007 of ERISA); (iv) no Loan Party
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Sections 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) no Loan Party nor
any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA.
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6.13 Subsidiaries; Capital Stock.
The corporate capital and ownership structure of the Loan Parties as of
the Closing Date is as described in Schedule 6.13. The Borrower has no
Subsidiaries, whether direct or indirect and owns no Capital Stock of any other
Person. Each of the Parent Guarantor and the Borrower is an SPE. The Parent
Guarantor has no Subsidiaries except for the Borrower. The Parent Guarantor owns
no Property other than the Capital Stock of the Borrower, owns 100% of the
outstanding Capital Stock of the Borrower and holds such Capital Stock subject
to no Liens. The LP Guarantor owns 100% of the outstanding Capital Stock of the
Parent Guarantor and holds such Capital Stock subject to no Liens. The
outstanding Capital Stock of the Parent Guarantor is validly issued, fully paid
and non-assessable and is owned directly by the LP Guarantor, free and clear of
all Liens (other than those arising under or contemplated in connection with the
Credit Documents). The outstanding Capital Stock of the Borrower is validly
issued, fully paid and non-assessable and is owned directly by the Parent
Guarantor, free and clear of all Liens (other than those arising under or
contemplated in connection with the Credit Documents). Neither the Borrower nor
the Parent Guarantor has any outstanding securities convertible into or
exchangeable for its Capital Stock and has no outstanding rights to subscribe
for or to purchase or any options for the purchase of, or any agreements
providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to its Capital Stock. There is
no certificated Capital Stock of either the Borrower or the Parent Guarantor.
6.14 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act.
(a) The Borrower is not engaged and will not engage, principally
or as one of its important activities, in the business of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the FRB), or
extending credit for the purpose of purchasing or carrying margin stock.
(b) No Loan Party (i) is a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, (ii) is or is required to be registered as
an "investment company" under the Investment Company Act of 1940 or (iii) is
subject to regulation under any other Law which limits its ability to incur
Indebtedness.
6.15 Disclosure.
Each Loan Party has disclosed to the Administrative Agent and the
Lenders all agreements, instruments and corporate or other restrictions to which
it (and, in the case of the LP Guarantor, its Subsidiaries) is subject, and all
other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. All written
information, reports and other papers and data (excluding financial projections)
furnished to the Administrative Agent or any Lender by, on behalf of, or at the
direction of, the Loan Parties were, at the time the same were so furnished,
complete and correct in all material respects, or, in the case of financial
statements, present fairly, in all material respects and in accordance with GAAP
consistently applied throughout the periods involved, the financial position of
the Persons involved as at the date thereof and the results of operations for
such periods. All financial projections prepared by or on behalf of the Loan
Parties that have been or may hereafter be made available to the Administrative
Agent or any Lender were or will be prepared in good faith based on reasonable
assumptions. No fact is known to any Loan Party which has had, or may in the
future have a Material Adverse Effect which has not been set forth in the
financial statements delivered in connection with Section 7.01) or in such
information, reports or other papers or data or otherwise disclosed in writing
to the Administrative Agent and the Lenders prior to the Closing Date. Further,
neither this Agreement nor any financial statements delivered to the Lenders nor
any other document, certificate or statement furnished to the Lenders by or on
behalf of any Loan Party in connection with the transactions contemplated hereby
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained therein or herein not
misleading.
6.16 Compliance with Laws.
Each Loan Party and each Special Guarantor is in compliance in all
material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its properties, except in such
instances in which (a) such requirement of Law or order, writ, injunction or
decree is being contested in good faith by
34
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
6.17 Solvency.
Each of the Loan Parties are Solvent.
6.18 Investments; Indebtedness.
All Investments of the Borrower are Permitted Investments and all
Indebtedness of the Borrower is Indebtedness that is permitted pursuant to
Section 8.03 hereof. The Parent Guarantor has no Investments except its
ownership interests in the Capital Stock of the Borrower.
6.19 Business Locations.
Set forth on Schedule 6.19 is the chief executive office, jurisdiction
of incorporation or formation and principal place of business of each Loan
Party.
6.20 Brokers' Fees.
No Loan Party has any obligation to any Person in respect of any
finder's, broker's, investment banking or other similar fee in connection with
any of the transactions contemplated under the Loan Documents.
6.21 Labor Matters.
There are no collective bargaining agreements or Multiemployer Plans
covering the employees of any Loan Party as of the Closing Date.
6.22 Nature of Business.
The Borrower is engaged solely in the business of owning the Remainder
interests in the Mortgaged Properties and the beneficial interests under the
Trust Documents and activities appurtenant thereto. The LP Guarantor is engaged
solely in the business of purchasing, owning and selling real estate properties
and the Capital Stock of Persons owning or having interests (direct or indirect)
in such properties and such other activities as may be reasonably related to the
foregoing. The Parent Guarantor's sole business consists of the ownership of the
Capital Stock of the Borrower.
6.23 Representations and Warranties from Other Loan Documents.
Each of the representations and warranties made by the Loan Parties and
the Special Guarantors in any of the other Loan Documents is true and correct in
all material respects.
6.24 Affiliate Transactions.
Except as set forth on Schedule 6.24 attached hereto or as otherwise
approved by the Administrative Agent in writing, no Loan Party is a party to or
bound by any agreement or arrangement (whether oral or written) to which any
Subsidiary or Affiliate of any Loan Party is a party.
6.25 Contractual Obligations.
Set forth on Schedule 6.25 attached hereto is a list of all existing
Contractual Obligations of the Borrower.
6.26 Survival of Representations and Warranties, Etc.
All statements contained in any certificate, financial statement or
other instrument delivered by or on behalf of the Loan Parties or the Special
Guarantors to the Administrative Agent or any Lender pursuant to or in
connection with this Agreement or any of the other Loan Documents (including,
but not limited to, any such statement made in
35
or in connection with any amendment thereto or any statement contained in any
certificate, financial statement or other instrument delivered by or on behalf
of the Loan Parties or the Special Guarantors prior to the Closing Date and
delivered to the Administrative Agent or any Lender in connection with closing
the transactions contemplated hereby) shall constitute representations and
warranties made by the Borrower under this Agreement. All representations and
warranties made under this Agreement and the other Loan Documents shall be
deemed to be made at the Agreement Date, the Closing Date and the Advance Date,
except to the extent that such representations and warranties expressly relate
solely to an earlier date (in which case such representations and warranties
shall have been true and accurate on and as of such earlier date) and except for
changes in factual circumstances specifically permitted hereunder. All such
representations and warranties shall survive the effectiveness of this
Agreement, the execution and delivery of the Loan Documents and the making of
the Term Loans.
ARTICLE VII
AFFIRMATIVE COVENANTS
For so long as this Agreement is in effect, unless the Required Lenders
(or, if required pursuant to Section 11.01, all of the Lenders) shall otherwise
consent in the manner set forth in Section 11.01, each of the Loan Parties, as
applicable, and, where expressly noted, the Special Guarantors, shall comply
with the following covenants:
7.01 Financial Statements.
Each of the Loan Parties shall deliver to the Administrative Agent and
each Lender, in form and detail satisfactory to the Administrative Agent,
promptly following the request of the Administrative Agent therefor, any
financial statements, certificates of public accountants, financial reports or
other information related to any of the foregoing, to the business, financial or
corporate affairs of any of the Loan Parties, or any of the Loan Parties'
compliance with the terms of the Loan Documents, in each case to the extent such
statements or information are in existence as of the date of such request and in
the possession of any Loan Party.
7.02 Certificates; Other Information.
Each Loan Party (as applicable) shall deliver to the Administrative
Agent and each Lender, in form and detail satisfactory to the Administrative
Agent:
(a) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent to
the equityholders of the LP Guarantor, and copies of all annual, regular,
periodic and special reports and registration statements which any Loan Party
may file or be required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934 or to a holder of any Indebtedness owed by any
Loan Party in its capacity as such a holder and not otherwise required to be
delivered to the Administrative Agent pursuant hereto; and
(b) upon the request of the Administrative Agent, all reports and
written information to and from the United States Environmental Protection
Agency, or any state or local agency responsible for environmental matters, the
United States Occupational Health and Safety Administration, or any state or
local agency responsible for health and safety matters, or any successor
agencies or authorities concerning environmental, health or safety matters.
7.03 Notices and Information.
Each of the Loan Parties (as applicable) shall:
(a) Promptly notify the Administrative Agent and each Lender of
the occurrence of any Default or any existing circumstances or conditions known
to it which could be reasonably expected to cause an Approved Lease to cease to
meet the requirements and conditions set forth herein (including, without
limitation, Sections 7.16 and 8.13) within the immediately following calendar
year.
(b) Promptly notify the Administrative Agent and each Lender of
any matter (including, without limitation, (i) the breach or non-performance of,
or any default under, a Contractual Obligation of the Borrower;
36
(ii) any dispute, litigation, investigation, proceeding or suspension between
the Borrower and any Governmental Authority; or (iii) the commencement of, or
any material development in, any litigation or proceeding affecting the
Borrower, including pursuant to any applicable Environmental Laws) that has
resulted or could reasonably be expected to result in a Material Adverse Effect.
(c) Promptly notify the Administrative Agent and each Lender of
the occurrence of any ERISA Event.
(d) Promptly notify the Administrative Agent and each Lender of
any change in the chief executive officer, chief operating officer or chief
financial officer of any Loan Party or any material change in accounting
policies or financial reporting practices by the Borrower.
Each notice pursuant to this Section 7.03(a) through (d) shall be
accompanied by a statement of a Responsible Officer of the Borrower setting
forth details of the occurrence referred to therein and stating what action the
Borrower has taken and proposes to take with respect thereto. Each notice
pursuant to Section 7.03(a) shall describe with particularity any and all
provisions of this Agreement and any other Loan Document that have been
breached.
7.04 Payment of Obligations.
Each of the Loan Parties shall pay and discharge as the same shall
become due and payable, all its obligations and liabilities, including (a) all
tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by such Person; (b) all lawful claims which, if
unpaid, would by law become a Lien (other than a Permitted Lien) upon its
property; and (c) all material Indebtedness, as and when due and payable, but
subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
7.05 Preservation of Existence, Franchises, SPE Status, Etc
(a) Each of the Loan Parties shall:
(i) Preserve, renew and maintain in full force and effect
its legal existence and good standing under the Laws of the
jurisdiction of its organization;
(ii) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in
the normal conduct of its business; and
(iii) take all action required to preserve and maintain the
Borrower's and the Parent Guarantor's status as SPEs.
(b) Each Special Guarantor shall take all reasonable action to
maintain its legal existence and all rights, privileges, permits, licenses and
franchises necessary to continue to fulfill its obligations under the Trust
Documents.
7.06 Maintenance of Properties.
Each of the Loan Parties shall:
(a) Maintain, preserve and protect all of its material properties
and equipment necessary in the operation of its business in good working order
and condition, ordinary wear and tear excepted; and
(b) make all necessary repairs thereto and renewals and
replacements thereof; and
(c) use the standard of care typical in the industry in the
operation and maintenance of its facilities.
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7.07 Maintenance of Insurance.
The Borrower shall maintain (or cause the applicable tenant to
maintain) in full force and effect insurance (including worker's compensation
insurance, liability insurance and casualty insurance) with respect to each
Mortgaged Property in such amounts, covering such risks and liabilities and with
such deductibles or self-insurance retentions as are in accordance with normal
industry practice.
7.08 Compliance with Laws.
Each of the Loan Parties and each of the Special Guarantors shall
comply with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its business or property, except in such
instances in which (a) such requirement of Law or order, writ, injunction or
decree is being contested in good faith by appropriate proceedings diligently
conducted; or (b) the failure to comply therewith could not reasonably be
expected to have a Material Adverse Effect.
7.09 Books and Records.
Each Loan Party shall:
(a) Maintain proper books of record and account, in which full,
true and correct entries in conformity with GAAP consistently applied shall be
made of all financial transactions and matters involving the assets and business
of such Loan Party; and
(b) maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority having
regulatory jurisdiction over such Loan Party.
7.10 Inspection Rights.
The Borrower shall permit representatives and independent contractors
of the Administrative Agent and each Lender to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all
at the expense of the Borrower and at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Borrower; provided, however, that when an Event of Default
exists the Administrative Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at the
expense of the Borrower at any time during normal business hours and without
advance notice.
7.11 Use of Proceeds; Type of Purchase Agreement Transactions.
The Borrower shall use the proceeds of the Term Loans solely for the
purpose of (a) making payments required under the Purchase Agreements and of
repurchasing, repaying and canceling all Indebtedness and other obligations of
the grantors and remainderman under each of the notes, bonds or other
instruments issued under or in connection with the Trust Agreements and the
Trust Documents and causing the termination of all security interests created by
or related thereto (including those created pursuant to any mortgages, deeds of
trust, deeds to secure debt, assignments of leases or similar security
documents); and (b) for the purpose of repurchasing, repaying and canceling all
other Indebtedness and other obligations in any way secured by any Lien on the
Mortgaged Properties or the Approved Leases (or any payments, funds or proceeds
related thereto) shall, on or prior to the Advance Date, be terminated, released
and cancelled (as applicable). The transaction under the Purchase Agreement
(Current Interests) shall be structured as an "Interest Purchase" (as opposed to
an "Asset Purchase" or "Share Purchase").
7.12 Payments from Approved Leases.
To the extent any payments made pursuant to any Approved Lease are
received by any Loan Party, such Person hereby agrees that it shall immediately
notify the Administrative Agent of same and deposit such payments only into an
account specified by the Administrative Agent in the form received but with
proper endorsement, if necessary. The
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Administrative Agent shall have the absolute right to offset and apply any
amounts held in any account holding payments from the Approved Leases at any
time during the continuation of a Default or Event of Default.
7.13 Pledged Assets.
Each of the Loan Parties (as applicable) shall, at all times:
(a) subject the Remainder Interests of the Borrower and all rights
and interests held by the Special Guarantors with respect to the Mortgaged
Properties to first priority Liens in favor of the Collateral Agent to secure
the Obligations pursuant to the terms and conditions of the Collateral
Documents, subject to Permitted Liens and deliver such additional documentation
as the Administrative Agent may reasonably request in connection with the
foregoing, all in form, content and scope reasonably satisfactory to the
Administrative Agent;
(b) cause 100% of the issued and outstanding Capital Stock of the
Borrower and the Parent Guarantor to be subject to a first priority, perfected
Lien in favor of the Collateral Agent for the benefit of the Secured Parties
pursuant to the terms and conditions of the Collateral Documents or such other
security documents as the Administrative Agent shall reasonably request; and
(c) deliver such other documentation as the Administrative Agent
may reasonably request in connection with the foregoing, including, without
limitation, appropriate UCC-1 financing statements, real estate title insurance
policies, surveys, environmental reports, landlord's waivers, certified
resolutions and other organizational and authorizing documents of such Person,
favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the
documentation referred to above and the perfection of the Administrative Agent's
liens thereunder) and other items of the types required to be delivered pursuant
to the terms of this Agreement, all in form, content and scope reasonably
satisfactory to the Administrative Agent.
7.14 Further Assurances.
Each of the Loan Parties and Special Guarantors (as applicable) shall,
from time to time, at the expense of the Borrower, promptly execute, deliver,
file and/or record all further instruments and documents, and take all further
action, that may be necessary or desirable, or that the Administrative Agent or
Collateral Agent may reasonably request (including, without limitation, the
procurement of landlord consents with respect to the assignment of the
Borrower's interests in each of the Mortgaged Properties if the Mortgage
Instruments or Assignments of Leases are recorded in accordance with Section
7.15), in order to (a) properly evidence the Borrower's Indebtedness hereunder
or under any Loan Document or (b) perfect, continue and protect the assignment
and security interest granted or purported to be granted hereby or pursuant to
any Loan Document and to enable the Administrative Agent and/or Collateral Agent
to exercise and enforce their rights and remedies hereunder and under any other
Loan Document with respect to any Collateral. The applicable Loan Part(y/ies)
shall promptly deliver to the Collateral Agent a copy of each such instrument
and evidence of its proper filing or recording, as necessary.
7.15 Status of Mortgaged Properties; Recording of Collateral
Documents.
(a) No Loan Party or Special Guarantor shall, at any time, take,
approve of or consent to any action (including, without limitation, any sale or
other disposition of any interest of the Borrower or the Special Guarnators)
that in any manner interferes with or could interfere with, the interests,
rights and remedies of the Secured Parties created by any Mortgage Instruments
or any Assignments of Leases executed in connection with this Agreement.
(b) No Loan Party or Special Guarantor shall, at any time, shall
permit any Mortgaged Property to be a Flood Hazard Property (except to the
extent the Borrower has provided the Administrative Agent with evidence,
satisfactory to the Administrative Agent, that it has obtained, or caused to be
obtained, proper flood insurance coverage with respect to such Mortgaged
Property).
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(c) The applicable parties shall, at all times, shall have
delivered to the Administrative Agent fully executed and notarized (i) Mortgage
Instruments and (ii) Assignments of Leases, with respect to each Mortgaged
Property and such Mortgage Instruments and Assignments of Leases shall, at all
times, constitute first priority Liens with respect to the Remainder Interests
of the Borrower and all rights and interests held by the Special Guarantors in
connection with the Mortgaged Properties.
(d) The Mortgage Instruments and Assignments of Leases delivered
by the Borrower and the Special Guarantors to the Administrative Agent in
connection with the Mortgaged Properties shall not be recorded by the
Administrative Agent or any Secured Party unless: (i) an Event of Default exists
under this Credit Agreement and (ii) the Required Lenders vote to record or
cause to be recorded such Mortgage Instruments and Assignments of Leases. Upon
the satisfaction of the conditions set forth in clauses (i) and (ii) above, the
Administrative Agent shall record, shall direct the Borrower and/or the
applicable Special Guarnator(s) to record, or shall otherwise cause to be
recorded each of the Mortgage Instruments and Assignments of Leases held
pursuant to the terms hereof and may obtain or cause to be obtained any title
policies (including, without limitation, title policies issued in connection
with the Mortgage Commitments), updates or endorsements it deems necessary.
(e) The Borrower shall immediately pay to the Administrative
Agent, in addition to all other amounts due hereunder, all filing/recording fees
and expenses and all fees and expenses associated with the procurement of title
policies or endorsements (including, without limitation and with respect to
each, any administrative expenses or attorneys' fees) incurred by the
Administrative Agent or any Secured Party at any time in connection with any
filing and/or recording of any Collateral Document (including, without
limitation, the filing/recording of any Mortgage Instruments and/or Assignments
of Leases).
The Borrower hereby acknowledges and agrees that in the event the Administrative
Agent files and/or records any Mortgage Instruments pursuant to Sections 7.15(c)
and (d) above, such fees and expenses may be substantial in nature and that its
obligations pursuant to Sections 7.15(d) and (e) shall endure regardless of the
amount of such fees and expenses. Notwithstanding anything to the contrary
contained herein, the Assignments of Leases executed by the Borrower with
respect to the Mortgaged Properties may be included in any applicable Mortgage
Instrument with respect to such Mortgaged Properties and need not be located in
a separate document.
7.16 Approved Leases.
Each of the Loan Parties shall cause each Approved Lease, at all times,
to be a lease of a parcel of Mortgaged Property (exclusive of furniture,
fixtures and equipment) located in the United States which satisfies all of the
following requirements: (a) each tenant under such lease shall be an Eligible
Lessee; (b) the Borrower shall own the Remainder Interests in and the current
beneficial interests with respect to the underlying Mortgaged Property and the
Special Guarantors, collectively, shall hold legal title to the underlying
Mortgaged Property under the Trust Documents; (c) neither such Mortgaged
Property nor any interest therein of the Borrower or the Special Guarantors,
shall be subject to (i) any Lien other than Permitted Liens of the types
described in clauses (a) through (c) of the definition thereof or (ii) any
Negative Pledge (other than as provided in this Agreement); (d) no required
rental payment or other payment due under such lease is more than seven (7) days
past due; and (e) the Collateral Agent shall have received an Assignment of
Leases with respect to such Approved Lease.
7.17 Financial Covenants.
The LP Guarantor shall, at all times:
(a) maintain a Tangible Net Worth equal to greater than
$325,000,000.00; and
(b) maintain a TL/TA Ratio that is less than or equal to 0.85.
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ARTICLE VIII
ADDITIONAL NEGATIVE COVENANTS
For so long as this Agreement is in effect, unless the Required Lenders
(or, if required pursuant to Section 11.01, all of the Lenders) shall otherwise
consent in the manner set forth in Section 11.01, each of the Loan Parties, as
applicable, and, where expressly noted, the Special Guarantors, shall comply
with the following covenants:
8.01 Liens.
No Loan Party shall create, incur, assume or suffer to exist any Lien
upon any of the Borrower's property, assets or revenues, whether now owned or
hereafter acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens (other than Liens imposed under ERISA) for taxes,
assessments or governmental charges or levies not yet due or which are
being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on
the books of the applicable Person in accordance with GAAP;
(c) Liens of carriers, warehousemen, mechanics, materialmen
and suppliers and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary course of
business, provided that such Liens (i) secure only amounts not yet due
and payable or, if due and payable, are unfiled and no other action has
been taken to enforce the same or are being contested in good faith by
appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established and (ii) do not secure, in
the aggregate, an amount in excess of $1,000,000.00;
(d) pledges or deposits in the ordinary course of business
in connection with workers' compensation, unemployment insurance and
other social security legislation, other than any Lien imposed by
ERISA; provided, that such Liens do not secure, in the aggregate, an
amount in excess of $1,000,000.00;
(e) deposits to secure the performance of bids, trade
contracts and leases (other than Indebtedness), statutory obligations,
surety bonds (other than bonds related to judgments or litigation),
performance bonds and other obligations of a like nature incurred in
the ordinary course of business; provided, that such Liens do not
secure, in the aggregate, an amount in excess of $1,000,000.00;
(f) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract
from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of the Borrower;
(g) Liens securing judgments for the payment of money not
constituting an Event of Default under Section 9.01(g) or securing
appeal or other surety bonds related to such judgments; and
(h) Liens of sellers of goods to the Borrower arising under
Article 2 of the Uniform Commercial Code or similar provisions of
applicable law in the ordinary course of business, covering only the
goods sold and securing only the unpaid purchase price for such goods
and related expenses; provided, that such Liens do not secure, in the
aggregate, an amount in excess of $1,000,000.00.
8.02 Investments.
Neither the Borrower nor the Parent Guarantor shall make any
Investments, except Investments held by the Borrower or Parent Guarantor in the
form of Cash Equivalents.
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8.03 Indebtedness.
Neither the Borrower nor the Parent Guarantor shall create, incur,
assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) obligations (contingent or otherwise) of the Borrower
existing or arising under any Swap Contract, provided that (i) such
obligations are (or were) entered into by Borrower in the ordinary
course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or
property held or reasonably anticipated by Borrower, or changes in the
value of securities issued by such Person, and not for purposes of
speculation or taking a "market view;" and (ii) such Swap Contract does
not contain any provision exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the
defaulting party;
(c) Indebtedness of the Borrower in the form of trade
payables incurred in the ordinary course of business; provided, that
such Indebtedness shall not, in the aggregate, exceed an amount equal
to $1,000,000.00; and
(d) Guaranty Obligations with respect to Indebtedness
permitted pursuant to this Section 8.03.
Notwithstanding the foregoing, neither the Borrower nor the Parent Guarantor
shall create, incur or assume any Indebtedness after the Closing Date if
immediately prior to the creation, incurring or assumption thereof, or
immediately thereafter and after giving effect thereto, a Default or Event of
Default is or would be in existence, including without limitation, a Default or
Event of Default resulting from a violation of any of the covenants contained in
this Section 8.03.
8.04 Fundamental Changes; Dispositions.
Neither the Borrower nor the Parent Guarantor shall, in any case,
merge, dissolve, liquidate, consolidate with or into another Person, or Dispose
of any of its rights or interests with respect to the Mortgaged Properties,
Approved Leases or its other Property to or in favor of any Person, except to
the extent expressly permitted by the Administrative Agent in writing. LP
Guarantor shall not, merge, dissolve, liquidate, consolidate with or into
another Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person. LP Guarantor shall not make
any Disposition unless (a) the consideration paid in connection therewith shall
be cash or Cash Equivalents and shall be in an amount not less than the fair
market value of the Property disposed of, (b) such transaction does not involve
the sale or other disposition of an equity interest in the Parent Guarantor or
Borrower. No Special Guarantor shall Dispose of any of its rights or interests
with respect to the Mortgaged Properties, Approved Leases or other Property held
in trust by it under the Trust Documents.
8.05 Restricted Payments; Equity Issuances; Debt Issuances.
Borrower shall not (a) declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so;
or (b) conduct or declare any Equity Issuance or Debt Issuance.
8.06 Change in Nature of Business.
No Loan Party shall engage in any material line of business
substantially different from those lines of business conducted by such Person on
the date hereof or any business substantially related or incidental thereto.
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8.07 Transactions with Affiliates and Insiders.
Neither the Borrower nor the Parent Guarantor shall enter into or
permit to exist (except to the extent listed on Schedule 6.24 or otherwise
approved by the Administrative Agent) any transaction or series of transactions
with any of its officers, directors, or Affiliates.
8.08 Contractual Obligations; Sale and Leasback Agreements.
(a) Neither the Borrower nor the Parent Guarantor shall enter into any
Sale and Leaseback Transaction or enter into any Contractual Obligations except
to the extent approved by the Administrative Agent in writing or, with respect
to Contractual Obligations, to the extent such Contractual Obligations are
directly related to the operation of the Borrower's or Parent Guarantor's (as
applicable) Businesses, are entered into in the ordinary course of the
Borrower's or Parent Guarantor's (as applicable) business and are not otherwise
prohibited pursuant to the terms of this Agreement or any other Loan Document.
(b) Notwithstanding the provisions contained in clause (a) of this
Section 8.08, neither the Borrower nor the Parent Guarantor shall enter into any
Contractual Obligation (other than the Loan Documents and the Approved Leases)
that encumbers, prohibits or restricts the ability of Borrower or Parent
Guarantor (as applicable) to (i) pay dividends or make any other distributions
to the LP Guarantor on its Capital Stock or with respect to any other interest
or participation in, or measured by, its profits, (ii) pay any Indebtedness or
other obligation owed to any Person, (iii) sell, lease or transfer any of its
Property to any Person, (iv) pledge its Property pursuant to the Loan Documents
or any renewals, refinancings, exchanges, refundings or extension thereof, or
(v) act as the borrower pursuant to the Loan Documents or any renewals,
refinancings, exchanges, refundings or extension thereof, except, in each case,
in connection with any Permitted Lien or any document or instrument governing
any Permitted Lien, provided that any such restriction contained therein relates
only to the asset or assets subject to such Permitted Lien. Further, neither the
Borrower nor the Parent Guarantor shall enter into any Contractual Obligation
that prohibits or otherwise restricts the existence of any Lien upon any of its
Property in favor of Collateral Agent for the benefit of the Secured Parties for
the purpose of securing the Obligations, whether now owned or hereafter
acquired, or requiring the grant of any security for any obligation if such
Property is given as security for the Obligations, except, in each case, in
connection with any Permitted Lien or any document or instrument governing any
Permitted Lien, provided that any such restriction contained therein relates
only to the asset or assets subject to such Permitted Lien.
8.09 Use of Proceeds.
Borrower shall not use the proceeds of any Term Loan, whether directly
or indirectly, and whether immediately, incidentally or ultimately, to purchase
or carry margin stock (within the meaning of Regulation U of the FRB) or to
extend credit to others for the purpose of purchasing or carrying margin stock
or to refund indebtedness originally incurred for such purpose.
8.10 Subsidiaries; Ownership/Certification of Capital Stock.
Neither the Borrower nor the Parent Guarantor shall create any
Subsidiary or acquire or otherwise obtain any interest in any entity that would
qualify as a Subsidiary and shall not otherwise purchase, hold or otherwise have
an interest in any Capital Stock of any other Person (except, in the case of the
Parent Guarantor, the Borrower). No Loan Party shall permit the Capital Stock of
either the Borrower or the Parent Guarantor to be put into certificated form.
8.11 Prepayment of Other Indebtedness, Etc.
Neither the Borrower nor the Parent Guarantor shall (a) amend or modify
any of the terms of any of its Indebtedness, or (b) make (or give any notice
with respect thereto) any voluntary or optional payment or prepayment or
redemption or acquisition for value of (including without limitation, by way of
depositing money or securities with the trustee with respect thereto before due
for the purpose of paying when due), refund, refinance or exchange of any of its
Indebtedness (except Indebtedness under the Loan Documents).
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8.12 Organization Documents; Fiscal Year.
No Loan Party shall (a) amend, modify or change its Organization
Documents in a manner adverse to the Lenders or (b) change its fiscal year.
8.13 Status of Approved Leases and Mortgaged Properties.
Borrower shall not (and shall not cause or permit any lessor under any
Approved Lease to), without the prior written approval of the Administrative
Agent, (a) permit any of the parties to or material terms or conditions of
(including the amount of Base Rent payable and the dates of payment thereof) any
of the Approved Leases to change during the term of this Agreement; (b) deliver
any notices to any Person under any Approved Lease which permits, approves,
consents to or otherwise allows or provides for the allowance of the termination
of such Approved Lease with respect to any Mortgaged Property or any portion
thereof; (c) permit to occur any "Terminating Events" or "Terminations" under
any Approved Lease, except as scheduled in such Approved Lease; (d) elect,
pursuant to the terms of the applicable Approved Lease, to retain or dispose of
any portion of any Mortgaged Property that is no longer subject to an Approved
Lease or to accept or reject (or cause or permit any lessor under any Approved
Lease to accept or reject) any offer of the applicable lessee to purchase any
Mortgaged Property pursuant to the terms of an Approved Lease; (e) request,
exercise, exercise any rights or remedies permitting it to require or otherwise
demand, accept (except as specifically required pursuant to the applicable
Approved Lease) or reject payment of any "Stipulated Loss Value" or other
amounts payable in connection with the termination of any Approved Lease; (f)
permit any payments made by any lessee under an Approved Lease to be paid in any
manner other than as directed by the Administrative Agent or to be made in any
manner which prevents such payments from constituting cash collateral subject to
a perfected security interest in favor of the Collateral Agent or the
Administrative Agent; or (g) otherwise exercise any rights or remedies which
under the Approved Leases or any documents related thereto which could result in
a decrease in any basic rental payments under any Approved Lease.
8.14 Operating Lease Obligations.
Neither the Borrower nor the Parent Guarantor shall enter into, assume
or permit to exist any obligations for the payment of rental under Operating
Leases.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.01 Events of Default.
Any of the following shall constitute an Event of Default:
(a) Non-Payment. Any Loan Party or Special Guarantor fails to pay
(i) when and as required to be paid herein, any amount of principal of
any Term Loan, or (ii) within three days after the same becomes due,
any interest on any Term Loan, any commitment or other fee due
hereunder or any other amount payable hereunder or under any other Loan
Document; or
(b) Specific Covenants. Any Loan Party or Special Guarantor fails
to perform or observe any term, covenant or agreement contained in any
of Section 7.01, 7.02, 7.03, 7.05, 7.07, 7.11, 7.12, 7.13, 7.14, 7.15,
7.16, 7.17 or Article VIII; or
(c) Other Defaults. Any Loan Party or Special Guarantor fails to
perform or observe any other covenant or agreement (not specified in
subsection (a) or (b) above) contained in any Loan Document on its part
to be performed or observed and such failure continues for 10 days; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf
of the Borrower, any other Loan Party or any Special
44
Guarantor herein, in any other Loan Document, or in any document
delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or
(e) Cross-Default. (i) Any Loan Party or Special Guarantor (as
applicable) (A) fails to perform or observe (beyond the applicable
grace period with respect thereto, if any) any Contractual Obligation
if such failure could reasonably be expected to have a Material Adverse
Effect, (B) fails to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise) in
respect of any Indebtedness or Guarantee (other than Indebtedness
hereunder and Indebtedness under Swap Contracts) having an aggregate
principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or
syndicated credit arrangement) in excess of $5,000,000.00, or (C) fails
to observe or perform any other agreement or condition relating to any
such Indebtedness or Guarantee or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
occurs, the effect of which default or other event is to cause, or to
permit the holder or holders of such Indebtedness or the beneficiary or
beneficiaries of such Guarantee (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such Indebtedness to be demanded or
to become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in
respect thereof to be demanded; (ii) there occurs under any Swap
Contract with the Borrower an Early Termination Date (as defined in
such Swap Contract) resulting from (A) any event of default under such
Swap Contract as to which the Borrower is the Defaulting Party (as
defined in such Swap Contract) or (B) any Termination Event (as so
defined) under such Swap Contract as to which the Borrower is an
Affected Party (as so defined); or
(f) Insolvency Proceedings, Etc. Any Loan Party is subject to
a Bankruptcy Event; or
(g) Judgments. There is entered (i) against the Borrower or
the Parent Guarantor (A) any one or more final judgments or orders for
the payment of money in an aggregate amount exceeding the Threshold
Amount (to the extent not covered by independent third-party insurance
as to which the insurer does not dispute coverage), or (B) any one or
more non-monetary final judgments that have, or could reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect and, in either case, (1) enforcement proceedings are commenced
by any creditor upon such judgment or order, or (2) there is a period
of 10 consecutive days during which a stay of enforcement of such
judgment, by reason of a pending appeal or otherwise, is not in effect
or (ii) against the LP Guarantor (A) any one or more final judgments or
orders for the payment of money in an aggregate amount exceeding the
Threshold Amount (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage), or (B)
any one or more non-monetary final judgments that have, or could
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect and, in either case, (1) enforcement
proceedings are commenced by any creditor upon such judgment or order,
or (2) there is a period of 10 consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect; or
(h) ERISA. (i) An ERISA Event occurs with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of the Borrower under Title IV of ERISA
to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate
amount in excess of the Threshold Amount, or (ii) the Borrower or any
ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of the Threshold Amount; or
(i) Invalidity of Loan Documents; Guarantees. (i) Any Loan
Document, at any time after its execution and delivery and for any
reason other than as expressly permitted hereunder or satisfaction in
full of all the Obligations, ceases to be in full force and effect; or
any Loan Party or any other Person contests in any manner the validity
or enforceability of any Loan Document; or any Loan Party denies that
it has any or further liability or obligation under any Loan Document,
or purports to revoke, terminate or rescind any Loan Document; or (ii)
the Guaranty given by any Guarantor hereunder or any provision thereof
shall
45
cease to be in full force and effect, or any Guarantor hereunder or any
Person acting by or on behalf of such Guarantor shall deny or disaffirm
such Guarantor's obligations under its Guaranty, or any Guarantor shall
default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to its
Guaranty; or
(j) Change of Control. There occurs any Change of Control; or
(k) Trust Document Default. There occurs any default or event of
default under the terms and conditions of the Trust Documents.
9.02 Remedies Upon Event of Default.
If any Event of Default occurs and is continuing, the Administrative
Agent shall, at the request of, or may, with the consent of, the Required
Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make the Term Loans
to be terminated, whereupon such commitments and obligation shall be
terminated;
(b) declare the unpaid principal amount of all outstanding Term
Loans, all interest accrued and unpaid thereon, and all other amounts
owing or payable hereunder or under any other Loan Document to be
immediately due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by
the Borrower; and
(c) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents
(including, without limitation, the recordation of the Mortgage
Instruments and Assignment of Leases pursuant to Section 7.15 hereof)
or applicable Law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Term Loans and the unpaid
principal amount of all outstanding Term Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, in each case
without further act of the Administrative Agent or any Lender.
9.03 Application of Funds.
After the acceleration of the Obligations as provided for in Section
9.02(b) (or after the Term Loans have automatically become immediately due and
payable as set forth in the proviso to Section 9.02), any amounts received on
account of the Obligations shall be applied by the Administrative Agent in the
following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts
payable under Article III) payable to the Administrative Agent in its capacity
as such;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest) payable
to the Lenders (including Attorney Costs and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Term Loans, ratably among the Lenders in
proportion to the respective amounts described in this clause Third payable to
them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Term Loans ratably among the Lenders in proportion to
the respective amounts described in this clause Fourth held by them;
Fifth, to payment of that portion of the Obligations constituting
unpaid principal under Swap Contracts between the Borrower and any Lender of
Affiliate of any Lender, ratably among the Lenders (or their Affiliates, as
applicable) in proportion to the respective amounts described in this clause
Fifth held by them; and
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Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
ARTICLE X
ADMINISTRATIVE AGENT
10.01 Appointment and Authorization of Administrative Agent.
Each Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
10.02 Delegation of Duties.
The Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.
10.03 Liability of Administrative Agent.
No Agent-Related Person shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any Lender
or participant for any recital, statement, representation or warranty made by
any Loan Party, Special Guarantor or any officer of any of them, contained
herein or in any other Loan Document, or in any certificate, report, statement
or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
any Loan Party, Special Guarantor or any other party to any Loan Document to
perform its obligations hereunder or thereunder. No Agent-Related Person shall
be under any obligation to any Lender or participant to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party or any Affiliate thereof.
10.04 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to any Loan
Party or any Special Guarantor), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under any Loan Document
unless it shall first
47
receive such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Required Lenders (or such greater
number of Lenders as may be expressly required hereby in any instance) and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 5.01, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date/Advance
Date (as applicable) specifying its objection thereto.
10.05 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless the Administrative
Agent shall have received written notice from a Lender or the Borrower referring
to this Agreement, describing such Default and stating that such notice is a
"notice of default." The Administrative Agent will notify the Lenders of its
receipt of any such notice. The Administrative Agent shall take such action with
respect to such Default as may be directed by the Required Lenders in accordance
with Article IX; provided, however, that unless and until the Administrative
Agent has received any such direction, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable or in the best interest of
the Lenders.
10.06 Credit Decision; Disclosure of Information by Administrative
Agent.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party, any Special Guarantor or any officer of
any of them, shall be deemed to constitute any representation or warranty by any
Agent-Related Person to any Lender as to any matter, including whether
Agent-Related Persons have disclosed material information in their possession.
Each Lender represents to the Administrative Agent that it has, independently
and without reliance upon any Agent-Related Person and based on such documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Loan Parties, Special Guarantors and
their respective Subsidiaries, and all applicable bank or other regulatory Laws
relating to the transactions contemplated hereby, and made its own decision to
enter into this Agreement and to extend credit to the Borrower hereunder. Each
Lender also represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower, the other Loan Parties
and the Special Guarantors. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Administrative Agent
herein, the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of any of the Loan Parties, Special Guarantors or any of their
respective Affiliates which may come into the possession of any Agent-Related
Person.
10.07 Indemnification of Administrative Agent.
Whether or not the transactions contemplated hereby are consummated,
the Lenders shall indemnify upon demand each Agent-Related Person (to the extent
not reimbursed by or on behalf of any Loan Party or Special Guarantor and
without limiting the obligation of any Loan Party or Special Guarantor to do
so), pro rata, and hold harmless each Agent-Related Person from and against any
and all Indemnified Liabilities incurred by it; provided,
48
however, that no Lender shall be liable for the payment to any Agent-Related
Person of any portion of such Indemnified Liabilities to the extent determined
in a final, nonappealable judgment by a court of competent jurisdiction to have
resulted from such Agent-Related Person's own gross negligence or willful
misconduct; provided, however, that no action taken in accordance with the
directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section. Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, any other Loan Document, or any document contemplated by or
referred to herein, to the extent that the Administrative Agent is not
reimbursed for such expenses by or on behalf of the Borrower. The undertaking in
this Section shall survive termination of the Aggregate Commitments, the payment
of all other Obligations and the resignation of the Administrative Agent.
10.08 Administrative Agent in its Individual Capacity.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Loan Parties, Special Guarnators and their
respective Affiliates as though Bank of America were not the Administrative
Agent hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Loan Party, any Special Guarantor or any
affiliates of any of them (including information that may be subject to
confidentiality obligations in favor of such Loan Party, Special Guarantor or
such Affiliate) and acknowledge that the Administrative Agent shall be under no
obligation to provide such information to them. With respect to its Term Loan,
Bank of America shall have the same rights and powers under this Agreement as
any other Lender and may exercise such rights and powers as though it were not
the Administrative Agent, and the terms "Lender" and "Lenders" include Bank of
America in its individual capacity.
10.09 Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent upon 30
days' notice to the Lenders. If the Administrative Agent resigns under this
Agreement, the Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders, which successor administrative agent shall
be consented to by the Borrower at all times other than during the existence of
an Event of Default (which consent of the Borrower shall not be unreasonably
withheld or delayed). If no successor administrative agent is appointed prior to
the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, the
Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent and the term
"Administrative Agent" shall mean such successor administrative agent, and the
retiring Administrative Agent's appointment, powers and duties as Administrative
Agent shall be terminated without any other or further act or deed on the part
of such retiring Administrative Agent or any other Lender. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article X and Sections 11.04 and 11.05 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor administrative agent
has accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above.
10.10 Administrative Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party or Special Guarantor, the
Administrative Agent (irrespective of whether the principal of any Term Loan
shall then be due and payable as herein expressed or by declaration or otherwise
and irrespective of whether the Administrative Agent shall have
49
made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Term Loans
and all other Obligations that are owing and unpaid and to file such
other documents as may be necessary or advisable in order to have the
claims of the Lenders and the Administrative Agent (including any claim
for the reasonable compensation, expenses, disbursements and advances
of the Lenders and the Administrative Agent and their respective agents
and counsel and all other amounts due the Lenders and the
Administrative Agent under Sections 2.03(i) and (j), 2.08 and 11.04)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.08 and 11.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
10.11 Collateral and Guaranty Matters.
The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion,
(a) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of
the Aggregate Commitments and payment in full of all Obligations (other
than contingent indemnification obligations) or (ii) subject to Section
11.01, if approved, authorized or ratified in writing by the Required
Lenders; and
(b) to subordinate any Lien on any Property granted to or held by
the Administrative Agent under any Loan Document to the holder of any
Lien on such Property that is permitted by Section 8.01(h).
Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent's authority to release
or subordinate its interest in particular types or items of Property pursuant to
this Section 10.11.
10.12 Other Agents; Arrangers and Managers.
None of the Lenders or other Persons identified on the facing page or
signature pages of this Agreement as a "syndication agent," "documentation
agent," "co-agent," "book manager," "lead manager," "arranger," "lead arranger"
or "co-arranger" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders or
other Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
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ARTICLE XI
MISCELLANEOUS
11.01 Amendments, Etc.
No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower or any other Loan
Party or Special Guarantor therefrom, shall be effective unless in writing
signed by the Required Lenders and the Borrower or the applicable Loan Party or
Special Guarantor, as the case may be, and acknowledged by the Administrative
Agent, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that
no such amendment, waiver or consent shall:
(a) extend or increase the Commitment of any Lender (or reinstate
any Commitment terminated pursuant to Section 9.02) without the written
consent of such Lender (it being understood and agreed that a waiver of
any condition precedent set forth in Section 5.02 or of any Default or
Event of Default or mandatory reduction in the Commitments shall not
constitute a change in the terms of any Commitment of any Lender);
(b) postpone any date fixed by this Agreement or any other Loan
Document for any payment (excluding mandatory prepayments) of
principal, interest, fees or other amounts due to the Lenders (or any
of them) hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby;
(c) reduce the principal of, or the rate of interest specified
herein on, any Term Loan or any fees or other amounts payable hereunder
or under any other Loan Document without the written consent of each
Lender directly affected thereby; provided, however, that only the
consent of the Required Lenders shall be necessary to amend the
definition of "Default Rate" or to waive any obligation of the Borrower
to pay interest at the Default Rate;
(d) change Section 2.07 or Section 9.03 in a manner that would
alter the pro rata sharing of payments required thereby without the
written consent of each Lender;
(e) change any provision of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number
or percentage of Lenders required to amend, waive or otherwise modify
any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender;
(f) except as the result of or in connection with a Disposition
not prohibited by Section 8.05, release all or substantially all of the
Collateral without the written consent of each Lender;
(g) except as the result of or in connection with a dissolution,
merger or disposition of a Loan Party not prohibited by Section 8.06,
release the Borrower or substantially all of the other Loan Parties or
Special Guarantors from its or their obligations under the Loan
Documents without the written consent of each Lender; and, provided
further, that no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent
under this Agreement or any other Loan Document.
Notwithstanding anything to the contrary herein, no Defaulting Lender
shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender.
Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (x) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization plan
that affects the Term Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent
provisions set forth herein and (y) the Required Lenders shall determine whether
or not to allow a
51
Loan Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding and such determination shall be binding on all of the Lenders.
11.02 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
by facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or (subject to subsection
(c) below) electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if to the Borrower or the Administrative Agent, to the
address, facsimile number, electronic mail address or telephone number
specified for such Person on Schedule 11.02 or to such other address,
facsimile number, electronic mail address or telephone number as shall be
designated by such party in a notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by
such party in a notice to the Borrower and the Administrative Agent.
All such notices and other communications shall be deemed to be given or
made upon the earlier to occur of (i) actual receipt by the relevant party
hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on
behalf of the relevant party hereto; (B) if delivered by mail, four Business
Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile,
when sent and receipt has been confirmed by telephone; and (D) if delivered by
electronic mail (which form of delivery is subject to the provisions of
subsection (c) below), when delivered; provided, however, that notices and other
communications to the Administrative Agent pursuant to Article II shall not be
effective until actually received by such Person. In no event shall a voicemail
message be effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually-signed originals and shall be binding on all
Loan Parties, all Special Guarantors, the Administrative Agent and the Lenders.
The Administrative Agent may also require that any such documents and signatures
be confirmed by a manually-signed original thereof; provided, however, that the
failure to request or deliver the same shall not limit the effectiveness of any
facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in Section 7.02, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices) purportedly given by or on behalf of the
Borrower even if (i) such notices were not made in a manner specified herein,
were incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrower shall indemnify each
Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower. All telephonic notices to and
other communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
11.03 No Waiver; Cumulative Remedies.
No failure by any Lender or the Administrative Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or
52
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.04 Attorney Costs, Expenses and Taxes.
The Loan Parties and Special Guarantors jointly and severally agree (a)
to pay or reimburse the Administrative Agent for all costs and expenses incurred
in connection with the development, preparation, negotiation and execution of
this Agreement and the other Loan Documents and any amendment, waiver, consent
or other modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all Attorney Costs, and (b) to pay or reimburse the
Administrative Agent and each Lender for all costs and expenses incurred in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or the other Loan Documents (including
all such costs and expenses incurred during any "workout" or restructuring in
respect of the Obligations and during any legal proceeding, including any
proceeding under any Debtor Relief Law), including all Attorney Costs. The
foregoing costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and other
out-of-pocket expenses incurred by the Administrative Agent and the cost of
independent public accountants and other outside experts retained by the
Administrative Agent or any Lender. All amounts due under this Section 11.04
shall be payable within ten Business Days after demand therefor. The agreements
in this Section shall survive the termination of the Aggregate Commitments and
repayment of all other Obligations.
11.05 Indemnification by the Borrower.
Whether or not the transactions contemplated hereby are consummated, the
Loan Parties and Special Guarantors jointly and severally shall indemnify and
hold harmless each Agent-Related Person, each Lender and their respective
Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (collectively the "Indemnitees") from and against any and all
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses and disbursements (including Attorney Costs)
of any kind or nature whatsoever which may at any time be imposed on, incurred
by or asserted against any such Indemnitee in any way relating to or arising out
of or in connection with (a) the execution, delivery, enforcement, performance
or administration of any Loan Document or any other agreement, letter or
instrument delivered in connection with the transactions contemplated thereby or
the consummation of the transactions contemplated thereby, (b) any Commitment,
Term Loan or the use or proposed use of the proceeds therefrom, (c) any actual
or alleged presence or release of Hazardous Materials on or from any property
currently or formerly owned or operated by the Borrower, any other Loan Party or
Special Guarantor, or any Environmental Liability related in any way to the
Borrower, any other Loan Party or Special Guarantor, or (d) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"), in all cases, whether or not caused by or arising, in whole or in
part, out of the negligence of the Indemnitee; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee. No Indemnitee
shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement, nor shall
any Indemnitee have any liability for any indirect or consequential damages
relating to this Agreement or any other Loan Document or arising out of its
activities in connection herewith or therewith (whether before or after the
Closing Date). All amounts due under this Section 11.05 shall be payable within
ten Business Days after demand therefor. The agreements in this Section shall
survive the resignation of the Administrative Agent, the replacement of any
Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
53
11.06 Payments Set Aside.
To the extent that any payment by or on behalf of any Loan Party or
Special Guarantor is made to the Administrative Agent or any Lender, or the
Administrative Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent
or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such set-off had
not occurred, and (b) each Lender severally agrees to pay to the Administrative
Agent upon demand its applicable share of any amount so recovered from or repaid
by the Administrative Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the Federal Funds
Rate from time to time in effect.
11.07 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section, or (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of subsection (f) or (h) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Term Loan at the time
owing to it); provided that (i) except in the case of an assignment of the
entire remaining amount of the assigning Lender's Commitment and the Term Loan
at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund (as defined in subsection (g) of this
Section) with respect to a Lender, the aggregate amount of the Commitment (which
for this purpose includes any Term Loan outstanding thereunder) subject to each
such assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if
"Trade Date" is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $2,500,000.00 unless each of the Administrative
Agent and, so long as no Event of Default has occurred and is continuing, the
Borrower otherwise consents (each such consent not to be unreasonably withheld
or delayed); (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Term Loan or the Commitment assigned; (iii)
any assignment of a Commitment must be approved by the Administrative Agent
unless the Person that is the proposed assignee is itself a Lender (whether or
not the proposed assignee would otherwise qualify as an Eligible Assignee); and
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500.00. Subject to acceptance and recording thereof by
the Administrative Agent pursuant to subsection (c) of this Section, from and
after the effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
3.01, 3.04, 3.05, 11.04 and 11.05 with respect to facts and circumstances
occurring prior to the effective date of such assignment). Upon request, the
Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this Section.
54
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Term Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive, and the Borrower, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person
(other than a natural person or the Borrower or any of the Borrower's Affiliates
or Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Term Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 11.01 that directly affects such Participant. Subject to subsection (e)
of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 11.09 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.12 as though it were a
Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.04 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.01 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 11.15 as though
it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its Note,
if any) to secure obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(g) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural person) approved by (i) the Administrative Agent and (ii) unless
an Event of Default has occurred and is continuing, the Borrower (each
such approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, "Eligible Assignee" shall not include the
Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Fund" means any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course
of its business.
"Approved Fund" means any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
55
(h) Notwithstanding anything to the contrary contained herein, any
Lender that is a Fund may create a security interest in all or any portion of
the Term Loan owing to it and the Note, if any, held by it to the trustee for
holders of obligations owed, or securities issued, by such Fund as security for
such obligations or securities, provided that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this
Section 11.07, (i) no such pledge shall release the pledging Lender from any of
its obligations under the Loan Documents and (ii) such trustee shall not be
entitled to exercise any of the rights of a Lender under the Loan Documents even
though such trustee may have acquired ownership rights with respect to the
pledged interest through foreclosure or otherwise.
11.08 Confidentiality.
Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential); (b) to the extent requested by any regulatory
authority; (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process; (d) to any other party to this Agreement;
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder; (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any Eligible Assignee of or Participant
in, or any prospective Eligible Assignee of or Participant in, any of its rights
or obligations under this Agreement or (ii) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit derivative
transaction relating to obligations of the Loan Parties; (g) with the consent of
the Borrower; (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
the Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower; or (i) to the National Association of Insurance
Commissioners or any other similar organization. In addition, the Administrative
Agent and the Lenders may disclose the existence of this Agreement and
information about this Agreement to market data collectors, similar service
providers to the lending industry, and service providers to the Administrative
Agent and the Lenders in connection with the administration and management of
this Agreement, the other Loan Documents, the Commitments, and the Term Loans.
For the purposes of this Section, "Information" means all information received
from any Loan Party or Special Guarantor relating to any Loan Party, or Special
Guarantor or their respective businesses, other than any such information that
is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by any Loan Party; provided that, in the case of
information received from a Loan Party or Special Guarantor after the date
hereof, such information is clearly identified in writing at the time of
delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
11.09 Set-off.
In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default, each
Lender is authorized at any time and from time to time, without prior notice to
the Borrower, any other Loan Party or any Special Guarantor, any such notice
being waived by the Borrower (on its own behalf and on behalf of each Loan Party
and each Special Guarantor) to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held by, and other indebtedness at any time owing by, such
Lender to or for the credit or the account of the respective Loan Parties
against any and all Obligations owing to such Lender hereunder or under any
other Loan Document, now or hereafter existing, to the extent such Obligations
are due and owing at such time (whether as scheduled or as a result of any
acceleration of such Obligations pursuant to the terms of this Agreement);
provided, however, that no Lender shall be permitted, pursuant to this Section,
to set off any amounts under or with respect to rental payments under any
Approved Lease unless and until such payments have been made into the account
specified in accordance with Section 5.01(s). Each Lender agrees promptly to
notify the Borrower and the Administrative Agent after any such set-off and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
56
11.10 Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan Document,
the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the
"Maximum Rate"). If the Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Term Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
Law, (a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
11.11 Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
11.12 Integration.
This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this Agreement
shall control; provided that the inclusion of supplemental rights or remedies in
favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was
drafted with the joint participation of the respective parties thereto and shall
be construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof.
11.13 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by
the Administrative Agent and each Lender, regardless of any investigation made
by the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of the Advance, and shall continue in full force and
effect as long as any Term Loan or any other Obligation hereunder shall remain
unpaid or unsatisfied.
11.14 Severability.
If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
11.15 Tax Forms.
(a) (i) Each Lender that is not a "United States person" within the
meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") shall deliver to
the Administrative Agent, prior to receipt of any payment subject to withholding
under the Code (or upon accepting an assignment of an interest herein), two duly
signed completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Foreign Lender
57
and entitling it to an exemption from, or reduction of, withholding tax on all
payments to be made to such Foreign Lender by the Borrower pursuant to this
Agreement) or IRS Form W-8ECI or any successor thereto (relating to all payments
to be made to such Foreign Lender by the Borrower pursuant to this Agreement) or
such other evidence satisfactory to the Borrower and the Administrative Agent
that such Foreign Lender is entitled to an exemption from, or reduction of, U.S.
withholding tax, including any exemption pursuant to Section 881(c) of the Code.
Thereafter and from time to time, each such Foreign Lender shall (A) promptly
submit to the Administrative Agent such additional duly completed and signed
copies of one of such forms (or such successor forms as shall be adopted from
time to time by the relevant United States taxing authorities) as may then be
available under then current United States laws and regulations to avoid, or
such evidence as is satisfactory to the Borrower and the Administrative Agent of
any available exemption from or reduction of, United States withholding taxes in
respect of all payments to be made to such Foreign Lender by the Borrower
pursuant to this Agreement, (B) promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction, and (C) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws that the Borrower make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.
(iii) Each Foreign Lender, to the extent it does not act or
ceases to act for its own account with respect to any portion of any sums
paid or payable to such Lender under any of the Loan Documents (for
example, in the case of a typical participation by such Lender), shall
deliver to the Administrative Agent on the date when such Foreign Lender
ceases to act for its own account with respect to any portion of any such
sums paid or payable, and at such other times as may be necessary in the
determination of the Administrative Agent (in the reasonable exercise of
its discretion), (A) two duly signed completed copies of the forms or
statements required to be provided by such Lender as set forth above, to
establish the portion of any such sums paid or payable with respect to
which such Lender acts for its own account that is not subject to U.S.
withholding tax, and (B) two duly signed completed copies of IRS Form
W-8IMY (or any successor thereto), together with any information such
Lender chooses to transmit with such form, and any other certificate or
statement of exemption required under the Code, to establish that such
Lender is not acting for its own account with respect to a portion of any
such sums payable to such Lender.
(iv) The Borrower shall not be required to pay any additional
amount to any Foreign Lender under Section 3.01 (A) with respect to any
Taxes required to be deducted or withheld on the basis of the
information, certificates or statements of exemption such Lender
transmits with an IRS Form W-8IMY pursuant to this Section 11.15(a) or
(B) if such Lender shall have failed to satisfy the foregoing provisions
of this Section 11.15(a); provided that if such Lender shall have
satisfied the requirement of this Section 11.15(a) on the date such
Lender became a Lender or ceased to act for its own account with respect
to any payment under any of the Loan Documents, nothing in this Section
11.15(a) shall relieve the Borrower of its obligation to pay any amounts
pursuant to Section 3.01 in the event that, as a result of any change in
any applicable law, treaty or governmental rule, regulation or order, or
any change in the interpretation, administration or application thereof,
such Lender is no longer properly entitled to deliver forms, certificates
or other evidence at a subsequent date establishing the fact that such
Lender or other Person for the account of which such Lender receives any
sums payable under any of the Loan Documents is not subject to
withholding or is subject to withholding at a reduced rate.
(v) The Administrative Agent may, without reduction, withhold
any Taxes required to be deducted and withheld from any payment under any
of the Loan Documents with respect to which the Borrower is not required
to pay additional amounts under this Section 11.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is
a "United States person" within the meaning of Section 7701(a)(30) of the Code
shall deliver to the Administrative Agent two duly signed completed copies of
IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction.
(c) If any Governmental Authority asserts that the Administrative
Agent did not properly withhold or backup withhold, as the case may be, any tax
or other amount from payments made to or for the account of any
58
Lender, such Lender shall indemnify the Administrative Agent therefor, including
all penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, and costs and expenses
(including Attorney Costs) of the Administrative Agent. The obligation of the
Lenders under this Section shall survive the termination of the Aggregate
Commitments, repayment of all other Obligations hereunder and the resignation of
the Administrative Agent.
11.16 Reserved.
11.17 Governing Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, the LAW OF THE STATE OF NEW YORK applicable to agreements made and to be
performed entirely within such State; PROVIDED THAT THE ADMINISTRATIVE Agent AND
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURTS SITTING IN
THE MIDDLE DISTRICT OF NORTH CAROLINA OR IN NEW YORK, NEW YORK, AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, THE BORROWER, THE ADMINISTRATIVE Agent AND EACH
LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. THE BORROWER, THE ADMINISTRATIVE Agent AND EACH
LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER,
THE ADMINISTRATIVE Agent AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
THE LAW OF SUCH STATE.
11.18 Waiver of Right to Trial by Jury.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL
BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.19 ENTIRE AGREEMENT.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
59
[SIGNATURE PAGE TO BRIDGE
CREDIT AGREEMENT DATED AS
OF JANUARY ___, 2003]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BORROWER:
FIRST STATES INVESTORS 3500, LLC,
a Delaware limited liability company
By: FIRST STATES INVESTORS 3500A, LLC, a
Delaware limited liability company, its
sole Member
By: _____________________________________
Name:____________________________________
Title:___________________________________
RELATED GUARANTORS:
FIRST STATES INVESTORS 3500A, LLC, a Delaware
limited liability company
By: FIRST STATES GROUP, L.P.,
a Delaware limited partnership,
its sole Member
By: _____________________________________
Name:____________________________________
Title:___________________________________
FIRST STATES GROUP, L.P.,
a Delaware limited partnership
By: FIRST STATES GROUP, LLC,
a Delaware limited liability company,
its general partner
By: _____________________________________
Name: ___________________________________
Title: __________________________________
[SIGNATURE PAGE TO BRIDGE
CREDIT AGREEMENT DATED AS OF
JANUARY ___, 2003]
SPECIAL GUARANTORS:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
a national banking association, not in its
individual capacity, but solely as Owner
Trustee under the 1997-C Trust Agreement
referenced herein, as a Special Guarantor,
By:________________________________________
Name:______________________________________
Title:_____________________________________
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
a national banking association, not in its
individual capacity, but solely as Owner
Trustee under the 1997-D Trust Agreement
referenced herein, as a Special Guarantor,
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
_____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as successor Co-Trustee to
▇▇▇▇ ▇▇▇▇ Seakas, as successor Co-Trustee
to ▇▇▇▇▇ ▇▇▇▇▇▇▇, not in her individual
capacity, but solely as Co-Trustee under
the 1997-C Trust Agreement, as a Special
Guarantor.
_____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as successor Co-Trustee to
▇▇▇▇ ▇▇▇▇ Seakas, as successor Co-Trustee
to ▇▇▇▇▇ ▇▇▇▇▇▇▇, not in her individual
capacity, but solely as Co-Trustee under
the 1997-C Trust Agreement, as a Special
Guarantor.
[SIGNATURE PAGE TO BRIDGE
CREDIT AGREEMENT DATED AS OF
JANUARY ___, 2003]
BANK OF AMERICA, N.A., as
Administrative Agent and as the sole Lender as
of the Agreement Date
By: __________________________
Name:_________________________
Title:________________________
[SIGNATURE PAGE TO BRIDGE
CREDIT AGREEMENT DATED AS OF
JANUARY ___,2003]
BANC OF AMERICA SECURITIES LLC, as Sole Lead
Arranger and Book Manager
By:________________________________
Name:______________________________
Title:_____________________________