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EXHIBIT 4.3
CREDIT AGREEMENT
Dated as of June 19, 1997
among
First Security Bank, National Association,
not individually, except as
expressly stated herein,
but solely as Owner Trustee
for Wackenhut Corrections Trust 1997-1
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
and
NationsBank, National Association
as Administrative Agent
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS........................................................1
1.1. Definitional Provisions..................................1
1.2. Defined Terms............................................1
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS....................................2
2.1. Commitments..............................................2
2.2. Notes....................................................2
2.3. Procedure for Borrowing; Amounts of Borrowings...........3
2.4. Unused Fees..............................................4
2.5. Termination, Reduction or Extension of
Commitments..............................................4
2.6. Prepayments and Payments.................................5
2.7. Conversion and Continuation Options......................6
2.8. Interest Rates and Payment Dates.........................7
2.9. Computation of Interest..................................8
2.10. Pro Rata Treatment and Payments..........................8
2.11. Increased Costs, Illegality, etc.........................9
2.12. Funding Indemnity.......................................11
2.13. Taxes...................................................11
2.14. Notice of Amounts Payable; Mandatory Assignment.........13
SECTION 3. REPRESENTATIONS AND WARRANTIES....................................14
3.1. Due Organization, etc...................................14
3.2. Authorization; No Conflict..............................15
3.3. Enforceability, etc.....................................15
3.4. Litigation..............................................15
3.5. Lessor Liens............................................16
3.6. Assignment..............................................16
3.7. Defaults................................................16
3.8. Documentation...........................................16
3.9. Use of Proceeds.........................................16
3.10. Securities Act..........................................16
3.11. Chief Place of Business.................................16
3.12. Federal Reserve Regulations.............................16
3.13. Investment Company Act..................................17
SECTION 4. CONDITIONS PRECEDENT..............................................17
4.1. Conditions to Effectiveness.............................17
4.2. Conditions to Each Loan.................................17
SECTION 5. COVENANTS.........................................................18
5.1. Other Activities........................................18
5.2. Ownership of Properties; Indebtedness...................18
5.3. Disposition of Assets...................................18
5.4. Compliance with Operative Agreements....................18
5.5. Further Assurances......................................18
5.6. Notices.................................................19
5.7. Discharge of Liens......................................19
5.8. Trust Agreement.........................................19
SECTION 6. EVENTS OF DEFAULT.................................................19
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PAGE
SECTION 7. THE ADMINISTRATIVE AGENT..........................................22
7.1. Appointment.............................................22
7.2. Delegation of Duties....................................23
7.3. Exculpatory Provisions..................................23
7.4. Reliance by Administrative Agent........................24
7.5. Notice of Default.......................................24
7.6. Non-Reliance on Administrative Agent and Other
Lenders.................................................24
7.7. Indemnification.........................................25
7.8. Administrative Agent in Its Individual Capacity.........26
7.9. Successor Administrative Agent..........................26
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL........................27
8.1. Collection of Payments and Other Amounts................27
8.2. Certain Remedial Matters................................29
8.3. Release of Properties, etc..............................29
8.4. Excepted Payments.......................................30
SECTION 9. MISCELLANEOUS.....................................................30
9.1. Amendments and Waivers..................................30
9.2. Notices.................................................31
9.3. No Waiver; Cumulative Remedies..........................32
9.4. Survival of Representations and Warranties..............32
9.5. Payment of Expenses and Taxes...........................32
9.6. Successors and Assigns; Participations and
Assignments.............................................33
9.7. Participations..........................................33
9.8. Assignments; Additional Commitment......................33
9.9. The Register; Disclosure................................36
9.10. Adjustments; Set-off....................................37
9.11. Counterparts............................................38
9.12. Severability............................................38
9.13. Integration.............................................38
9.14. GOVERNING LAW...........................................38
9.15. Submission To Jurisdiction; Waivers.....................38
9.16. Acknowledgments.........................................39
9.17. WAIVERS OF JURY TRIAL...................................39
9.18. Nonrecourse.............................................39
9.19. Usury Savings Clause....................................40
Schedule 1.2
Exhibit A SERIES A NOTE
Exhibit B SERIES B NOTE
Exhibit C ASSIGNMENT AND ACCEPTANCE
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE
RELATING TO (A) THE
CREDIT AGREEMENT
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of June 19, 1997, is among FIRST
SECURITY BANK, NATIONAL ASSOCIATION, not individually, except as expressly
stated herein, but solely as Owner Trustee for Wackenhut Corrections Trust
1997-1 (the "Owner Trustee" or the "Borrower"), the several banks and other
financial institutions from time to time parties to this Agreement (the
"Lenders"), and NATIONSBANK, NATIONAL ASSOCIATION, a national banking
association, as Lender and as Administrative Agent.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1. DEFINITIONAL PROVISIONS.
(a) Unless otherwise defined therein, all terms defined in
this Agreement shall have such defined meanings when used in the other
Credit Documents or any certificate or other document made or delivered
pursuant hereto or thereto.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) All accounting terms used herein shall have the respective
meanings given to them in accordance with GAAP, unless otherwise
provided herein. All computations and determinations for purposes of
determining compliance with the financial requirements of this
Agreement shall be made in accordance with GAAP, unless otherwise
provided herein.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms or such terms.
1.2. DEFINED TERMS. Each capitalized term used in this Agreement and
not otherwise defined herein shall have the meaning ascribed thereto in Appendix
A to the Participation Agreement (defined below).
(a) "AGREEMENT" shall mean this Credit Agreement, as amended,
supplemented, restated or otherwise modified from time to time in
accordance with the terms hereof.
(b) "PARTICIPATION AGREEMENT" means the Participation
Agreement dated as of the date hereof among Wackenhut Corrections
Corporation, as Construction Agent and as Lessee, the Owner Trustee,
the Holders party thereto from time to time, the Lenders party thereto
from time to time,
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and NationsBank, National Association, as Administrative Agent, as such
agreement may be amended, modified, restated or supplemented from time
to time in accordance with the
terms thereof.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1. COMMITMENTS.
(a) Subject to the terms and conditions hereof, each Lender
severally agrees to make Series A Loans and Series B Loans to the
Borrower from time to time during the Commitment Period for the purpose
of enabling the Borrower to purchase the Properties and to pay Property
Acquisition Costs, Property Costs and Transaction Expenses, in an
aggregate principal amount as to each Category of Loans at any one time
outstanding not to exceed such Lender's Commitment applicable to such
Category of Loans; provided that all borrowings under this SECTION
2.1(a), when aggregated with corresponding Holder Fundings, shall be
allocated between Series A Loans and Series B Loans as follows: Series
A Loans--88%; Series B Loans--9%; and Holder Fundings--3%.
(b) The Loans may be Base Rate Loans or Eurodollar Loans
having an Interest Period of one, two, three, six or nine months, as
specified in the definition of "Interest Period," subject only to the
limitations specified in such definition and to the provisions of
SECTIONS 2.7, 2.9(c) and 2.11. Any Loan other than a Eurodollar Loan
shall constitute a Base Rate Loan.
2.2. NOTES. The Loans made by each Lender shall be evidenced by
(i) in the case of Series A Loans, a promissory note of the Borrower,
substantially in the form of EXHIBIT A (the "Series A Note"), and (ii) in the
case of Series B Loans, a promissory note of the Borrower, substantially in the
form of EXHIBIT B (the "Series B Note"), in each case with appropriate
insertions as to payee, date and principal amount, payable to the order of such
Lender and in a principal amount equal to the applicable Commitment of such
Lender. Each Lender is hereby authorized to record the date, Type and amount of
each Loan made by such Lender, each continuation thereof, each conversion of all
or a portion thereof to another Type, and the date and amount of each payment or
prepayment of principal thereof on the schedule annexed to and constituting a
part of any of its Notes, and any such recordation shall constitute PRIMA FACIE
evidence of the accuracy of the information so recorded, PROVIDED that the
failure to make any such recordation or any error in such recordation shall not
affect the Borrower's obligations hereunder or under such Note. Each Note shall
(i) be dated the Initial Closing Date (ii) be stated to mature on the Maturity
Date, and (iii) provide for the payment of interest in accordance with
SECTION 2.8.
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2.3. PROCEDURE FOR BORROWING; AMOUNTS OF BORROWINGS.
(a) The Borrower may borrow under the Commitments during the
Commitment Period on any Business Day that a Funding may be requested
pursuant to the terms of SECTION 5.2 of the Participation Agreement,
PROVIDED that the Borrower shall give the Administrative Agent
irrevocable notice (which must be received by the Administrative Agent
(i) prior to 11:00 A.M., Charlotte, North Carolina time, three Business
Days prior to the requested Borrowing Date if all or any part of the
requested Loans are to be Eurodollar Loans, or (ii) prior to 11:00
A.M., Charlotte, North Carolina time one (1) Business Day prior to the
requested Borrowing Date with respect to any Loans that are to be Base
Rate Loans) specifying (A) the amount to be borrowed (which on any date
shall not be in excess of the then Available Commitments), (B) the
requested Borrowing Date, (C) whether the borrowing is to be of
Eurodollar Loans, Base Rate Loans or a combination thereof, and (D) if
the borrowing is to be a combination of Eurodollar Loans and Base Rate
Loans, the respective amounts of each Type of Loan; PROVIDED, HOWEVER,
that during the Commitment Period (1) there shall be only one (1)
Interest Period in effect at any specified time, which Interest Period
shall apply to all amounts then outstanding hereunder bearing interest
based on the Eurodollar Rate and which Interest Period shall be one
month in length (subject to the adjustments set forth in the definition
of "Interest Period"), (2) the first Interest Period shall commence on
the date that the first Eurodollar Loan hereunder is extended, (3) each
succeeding Interest Period shall begin on the last day of the preceding
Interest Period, and (4) any amounts borrowed or converted hereunder
which are to bear interest based on the Eurodollar Rate may only be
borrowed or converted on the first day of a permitted Interest Period.
Pursuant to the terms of the Participation Agreement, the Borrower
shall be deemed to have delivered such notice upon the delivery of a
notice by the Construction Agent or the Lessee containing such required
information. Upon receipt of any such notice from the Borrower, the
Administrative Agent shall promptly notify each Lender thereof. Subject
to the terms and conditions hereof (including specifically without
limitation SECTION 4.2 hereof), each Lender will make the amount of its
pro rata share of each borrowing of each Category available to the
Administrative Agent for the account of the Borrower at the office of
the Administrative Agent specified in SECTION 9.2 prior to 2:00 P.M.,
Charlotte, North Carolina time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent.
Such borrowing will then be made available to the Borrower by the
Administrative Agent crediting an account designated, subject to
SECTION 11.1 of the Participation Agreement, by the Borrower on the
books of such office with the aggregate
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of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent. To
the extent the principal amount of any Loan is repaid by the Borrower
(in connection with the purchase by the Lessee or Construction Agent,
or transfer to a third party, of a Property pursuant to the Operative
Agreements, but NOT the purchase or transfer of all the Properties
pursuant to the Lease or the transfer of any Property pursuant to the
Lessor's or Agent's foreclosure or similar exercise of remedies
following an Event of Default), the amount repaid shall not reduce the
Commitments and may be reborrowed hereunder (PRO RATA from the
Lenders), subject to any conditions on borrowing (and the limit on the
aggregate number of Properties) set forth herein and in the other
Operative Agreements; and PROVIDED FURTHER that the available amount
shall not be increased hereunder if the Commitments have been
terminated pursuant to SECTION 6 of this Agreement. Except as set forth
in the preceding sentence, no amount of any Loan which is repaid or
prepaid may be reborrowed hereunder.
(b) The Borrower shall deliver an Allocation Notice to the
Administrative Agent at least five (5) Business Days before any
Scheduled Interest Payment Date. On each date which is three (3)
Business Days prior to any Scheduled Interest Payment Date that occurs
during the Commitment Period, the Borrower shall be deemed to have
requested a Eurodollar Loan pursuant to SECTION 2.3(a) in an amount
equal to the aggregate amount of Allocated Interest due and payable on
such date with respect to the Construction Period Properties. Upon
receipt of any Allocation Notice from the Borrower with respect to such
Allocated Interest, the Administrative Agent shall promptly notify each
Lender thereof. The Borrowing Date with respect to any such borrowing
shall be the relevant Scheduled Interest Payment Date (PROVIDED, that
the making of the Loans pursuant to such borrowing shall be subject to
satisfaction of the applicable conditions precedent set forth in
SECTION 4.2) and the proceeds of such borrowing shall be applied to pay
such Allocated Interest. On each such Borrowing Date, the Loan Property
Cost and Construction Loan Property Cost shall be increased by an
amount equal to the Allocated Interest paid on such date with respect
to such Property with the proceeds of such borrowing.
(c) The aggregate amount of any borrowing constituting a
Eurodollar Loan and any conversion thereof shall be in an amount of at
least $1,000,000.
2.4. UNUSED FEES. Promptly after receipt from the Lessee of payment of
any Unused Fees payable pursuant to the Participation Agreement, the
Administrative Agent shall distribute such payment to the Lenders pro rata
according to their respective Commitment Percentages.
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2.5. TERMINATION, REDUCTION OR EXTENSION OF COMMITMENTS.
(a) The Borrower shall have the right, upon not less than five
(5) Business Days' written notice to the Administrative Agent, to
terminate the Commitments or, from time to time (but not more than
twice), to reduce the amount of the Commitments, such reductions to be
effected pro rata among Categories of Loans and in conjunction with
simultaneous pro rata reductions of the Holder Commitments, PROVIDED,
that (i) after giving effect to such reduction, the aggregate
outstanding principal amount of the Loans of any Category shall not
exceed the aggregate Commitments of such Category and the aggregate
outstanding amount of Holder Fundings shall not exceed the aggregate
Holder Commitments, (ii) such notice shall be accompanied by a
certificate of the Construction Agent stating that the amount equal to
97% of aggregate Budgeted Total Loan Property Cost as of the date of
such reduction does not exceed the aggregate amount of Available
Commitments as of such date after giving effect to such reduction and
(iii) unless a Lease Default or Lease Event of Default has occurred and
is continuing, the Lessee or the Construction Agent shall have
consented to such reduction or termination. Any such reduction of
Commitments and Holder Commitments shall be in an aggregate amount
equal to the lesser of (A) $1,000,000 or any integral multiple thereof
or (B) the remaining Available Commitments of each Category and the
remaining Available Holder Commitments, and shall reduce permanently
the Commitments of each Category and the Holder Commitments then in
effect.
(b) On any date on which the Commitments of any Category shall
automatically be reduced to zero pursuant to SECTION 6, the Borrower
shall prepay all outstanding Loans, together with accrued unpaid
interest thereon and all other amounts owing hereunder or under any
other Credit Document.
2.6. PREPAYMENTS AND PAYMENTS.
(a) The Borrower may at any time and from time to time prepay
the Loans, in whole or in part, without premium or penalty, upon at
least two (2) Business Days' irrevocable notice to the Administrative
Agent, specifying the date and amount of prepayment and whether the
prepayment is of Eurodollar Loans, Base Rate Loans or a combination
thereof, and, if a combination thereof, the amount allocable to each;
provided that all prepayments of Loans shall be applied pro rata
between Series A Loans (aggregated as a single amount) and Series B
Loans (aggregated as a single amount). Upon receipt of any such notice
the Administrative Agent shall promptly notify each Lender thereof. If
any such notice is given, the amount specified in such notice shall be
due and payable on the date specified therein. Except as set forth
in the next-to-last sentence of SECTION 2.3(a), amounts
prepaid may not be reborrowed.
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(b) If on any date the Administrative Agent or the Lessor
shall receive any payment in respect of (i) any Casualty or
Condemnation pursuant to SECTION 15.1(a) or 15.1(g) of the Lease
(excluding any payments in respect thereof which are payable to Lessee
in accordance with the Lease), or (ii) the Termination Value of any
Property in connection with the delivery of a Termination Notice
pursuant to ARTICLE XVI of the Lease, or (iii) the Termination Value of
any Property in connection with the exercise of the option to purchase
any Property under SECTION 17.11, 17.12 OR 20.1 of the Lease, or (iv)
the Termination Value of any Property in connection with the exercise
of a Purchase Option under SECTION 20.2 of the Lease or the exercise of
the option of the Lessee to transfer the Properties to a third party
pursuant to SECTION 20.2 of the Lease, or (v) any payment required to
be made or elected to be made by the Construction Agent to the Lessor
pursuant to the terms of the Agency Agreement, then in each case, the
Borrower shall be required to prepay the principal balance of the Loans
on such date (such prepayment to be applied pro rata as between Series
A Loans (aggregated as a single amount) and Series B Loans (aggregated
as a single amount)) in an amount equal to ninety-seven percent (97%)
of such payment and shall apply the remaining three percent (3%) of
such payment pro rata to the principal amount of outstanding Holder
Fundings.
(c) Each prepayment of the Loans pursuant to SECTION 2.6(b)
shall be allocated to reduce the Loan Property Cost of the affected
Property. Each prepayment of the Loans pursuant to SECTION 2.6(a) shall
be allocated to reduce the respective Loan Property Costs of all
Properties pro rata according to the Loan Property Costs of such
Properties immediately before giving effect to such prepayment. Any
amounts applied to reduce the Loan Property Cost of any Construction
Period Property pursuant to this paragraph (c) shall also be applied to
reduce the Construction Loan Property Cost of such Property until such
Construction Loan Property Cost has been reduced to zero. Each
prepayment of the Loans pursuant to Section 2.6(a) or 2.6(b) shall be
accompanied by a simultaneous prepayment of accrued interest on such
Loan and the simultaneous payment of any amounts payable under SECTION
2.12 hereof in connection with the prepayment of such Loan.
(d) The outstanding principal amount of the Loans shall be due
and payable in full to the Agent for the benefit of each Lender on the
Maturity Date, or earlier as specified herein or in any other Operative
Agreement.
2.7. CONVERSION AND CONTINUATION OPTIONS.
(a) Subject to the restrictions set forth in SECTIONS
2.3, 2.9(c) and 2.11 the Borrower may elect from time to
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time to convert Base Rate Loans to Eurodollar Loans by giving the
Administrative Agent at least three (3) Business Days' prior
irrevocable notice of such election. Upon receipt or any such notice
the Administrative Agent shall promptly notify each Lender hereof. All
or any part of outstanding Eurodollar Loans or Base Rate Loans may be
converted as provided herein, PROVIDED that (i) no Base Rate Loan may
be converted into a Eurodollar Loan when any Event of Default has
occurred and is continuing, (ii) no Base Rate Loan may be converted
into a Eurodollar Loan which matures after the Maturity Date, (iii)
during the Commitment Period such conversion may only occur on the
first day of an Interest Period permitted pursuant to the terms of
SECTION 2.3 hereof and (iv) such notice of conversion shall contain an
election by the Borrower of an Interest Period for such Eurodollar Loan
to be created by such conversion and such Interest Period shall be in
accordance with the terms of the definition of the term "Interest
Period" as set forth in Appendix A to the Participation Agreement.
(b) Subject to the restrictions set forth in SECTIONS 2.3,
2.9(c) and 2.11 hereof, any Eurodollar Loan may be continued as such
upon the expiration of the then current Interest Period with respect
thereto by the Borrower giving irrevocable notice to the Administrative
Agent in accordance with the applicable provisions of the term
"Interest Period" set forth in Appendix A to the Participation
Agreement, PROVIDED that no Eurodollar Loan may be continued as such
(i) when any Event of Default has occurred and is continuing or (ii) if
such Eurodollar Loan would mature after the Maturity Date and PROVIDED,
FURTHER, that if the Borrower shall fail to give any required notice as
described above in this paragraph or if such continuation is not
permitted pursuant to the preceding provision such Loan shall be
automatically converted to a Base Rate Loan on the last day of such
then expiring Interest Period.
2.8. INTEREST RATES AND PAYMENT DATES.
(a) Each Eurodollar Loan shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum
equal to the Eurodollar Reserve Rate determined for such day plus the
Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate.
(c) If all or a portion of (i) the principal amount of any
Loan, (ii) any interest payable on any Loan or (iii) any other amount
payable hereunder shall not be paid when due (subject to applicable
grace periods) (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum
which is the lesser of (x) the interest rate applicable to such Loan
(or
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in the case of clause (iii) above, the Base Rate) plus 2% and (y) the
highest interest rate permitted by applicable law, in each case from
the date of such non-payment until such amount is paid in full (whether
after or before judgment).
(d) Interest shall be payable in arrears on each Scheduled
Interest Payment Date, PROVIDED that (i) interest accruing pursuant to
paragraph (c) of this SECTION 2.8 shall be payable from time to time on
demand and (ii) each prepayment of any Loan shall be accompanied by
accrued interest to the date of such prepayment on the amount prepaid.
2.9. COMPUTATION OF INTEREST.
(a) Interest shall be calculated on the basis established in
SECTION 14.16 of the Participation Agreement, with respect to length of
a "year" and number of days for which interest is accrued. The
Administrative Agent shall as soon as practicable notify the Borrower
and the Lenders of each determination of a Eurodollar Rate. Any change
in the interest rate on a Loan resulting from a change in the Base
Rate, Eurodollar Reserve Percentage, or otherwise, shall become
effective as of the day on which such change would become effective
under the Existing Wackenhut Corrections Credit Agreement. The
Administrative Agent shall as soon as practicable notify the Borrower
and the Lenders of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall
be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error.
(c) If the Eurodollar Rate cannot be determined by
the Administrative Agent in the manner specified in the definition of
the term "Eurodollar Rate" referenced in Appendix A to the
Participation Agreement, the Administrative Agent shall give telecopy
or telephonic notice thereof to the Borrower and the Lenders as soon as
practicable thereafter. Until such time as the Eurodollar Rate can be
determined by the Administrative Agent in the manner specified in such
definition of such term, no further Eurodollar Loans shall be made or
continued as such at the end of the then current Interest Period and
all Loans shall continue as Base Rate Loans.
2.10. PRO RATA TREATMENT AND PAYMENTS.
(a) Except as provided in SECTION 2.14(b)(ii), each
borrowing by the Borrower from the Lenders hereunder and any reduction
of the Commitments of any Category of the Lenders
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shall be made pro rata according to the respective Commitment
Percentages of such Category of the Lenders. Each payment (including
each prepayment) by the Borrower on account of principal of and
interest on the Series A Loans or the Series B Loans, as the case may
be, shall be made pro rata according to the respective outstanding
principal amounts on the Loans of each such Category then held by each
Lender. All payments (including prepayments) to be made by the Borrower
hereunder and under the Notes, whether on account of principal,
interest or otherwise, shall be made without setoff, counterclaim or
other defense and shall be made prior to 12:00 Noon, Charlotte, North
Carolina time, on the due date thereof to the Administrative Agent, for
the account of the Lenders, at the Administrative Agent's office
specified in SECTION 9.2, in Dollars and in immediately available
funds. The Administrative Agent shall distribute such payments to the
Lenders promptly upon receipt in like funds as received. If any payment
hereunder becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day;
PROVIDED, HOWEVER, if such payment includes an amount of interest
calculated with reference to the Eurodollar Rate and the result of such
extension would be to extend such payment into another calendar month,
then such payment shall be made on the immediately preceding Business
Day. In the case of any extension of any payment of principal pursuant
to the preceding two sentences, interest thereon shall be payable at
the then applicable rate during such extension.
(b) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not
make its share of such borrowing available to the Administrative Agent,
the Administrative Agent may assume that such Lender is making such
amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. If such amount is not made available
to the Administrative Agent by the required time on the Borrowing Date
therefor, such Lender shall pay to the Administrative Agent, on demand,
such amount with interest thereon at a rate equal to the daily average
Federal Funds Effective Rate for the period until such Lender makes
such amount immediately available to the Administrative Agent. A
certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this SECTION 2.10(b) shall be
conclusive in the absence of manifest error. If such Lender's share of
such borrowing is not made available to the Administrative Agent by
such Lender within three Business Days of such Borrowing Date, the
Administrative Agent shall also be entitled to recover such amount with
interest thereon at the rate as set forth above on demand from the
Borrower.
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2.11. INCREASED COSTS, ILLEGALITY, ETC.
(a) If, due to either (i) the introduction of or any change
(other than any change by way of imposition or increase of reserve
requirements that are expressly included in the calculation of the
Eurodollar Reserve Rate) in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request
hereafter adopted, promulgated or made by any central bank or other
Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Loans, then the Borrower shall from time
to time, upon demand by such Lender (with a copy of such demand to the
Administrative Agent but subject to the terms of SECTION 2.14), pay to
the Administrative Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost. A
certificate as to the amount of such increased cost, submitted to the
Borrower and the Administrative Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law, but in
each case promulgated or made after the date hereof) affects or would
affect the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender and that the
amount of such capital is increased by or based upon the existence of
such Lender's commitment to lend hereunder and other commitments of
this type or upon the Loans, then, upon demand by such Lender (with a
copy of such demand to the Administrative Agent but subject to the
terms of SECTION 2.14), the Borrower shall immediately pay to the
Administrative Agent for the account of such Lender, from time to time
as specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably determines
such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder or upon the Loans. A certificate
as to such amounts submitted to the Borrower and the Administrative
Agent by such Lender shall be conclusive and binding for all purposes,
absent manifest error.
(c) Without affecting its rights under SECTION 2.11(a) or
2.11(b) or any other provision of this Agreement, each Lender agrees
that if there is any increase in any cost to or reduction in any amount
receivable by such Lender with respect to which the Borrower would be
obligated to compensate such Lender pursuant to SECTIONS 2.11(a) or
2.11(b), such Lender shall use reasonable efforts to select an
alternative lending office which would not result in any
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such increase in any cost to or reduction in any amount receivable by
such Lender; PROVIDED, HOWEVER, that no Lender shall be obligated to
select an alternative lending office if such Lender determines, in its
sole discretion, that (i) as a result of such selection such Lender
would be in violation of any applicable law, regulation, treaty, or
guideline, or would incur additional costs or expenses or (ii) such
selection would be inadvisable for regulatory reasons or would impose
an unreasonable burden or additional costs on such Lender.
(d) Notwithstanding any other provision of this Agreement, if
any Lender shall notify the Administrative Agent that the introduction
of or any change in any law or regulation, or in the interpretation of
any law or regulation, makes it unlawful, or any central bank or other
Governmental Authority asserts that it is unlawful, for any Lender to
perform its obligations hereunder to make or maintain Eurodollar Loans,
then (i) each Eurodollar Loan will automatically, at the end of the
Interest Period for such Eurodollar Loan, convert into a Base Rate Loan
and (iii) the obligation of the Lenders to make, convert or continue
Eurodollar Loans shall be suspended until the Administrative Agent
shall notify the Borrower that such Lender has determined that the
circumstances causing such suspension no longer exist.
2.12. FUNDING INDEMNITY. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or reasonable expense which such
Lender may sustain or incur as a consequence of (a) any failure of the Borrower
to make a borrowing of any Loan hereunder after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement (other
than by reason of the failure of a Lender or Lenders to make funds available
without cause), (b) any failure of the Borrower to make any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a voluntary or involuntary prepayment of
Eurodollar Loans on a day which is not the last day of an Interest Period with
respect thereto. Such indemnification shall be in an amount equal to the excess,
if any, of (i) the amount of interest which would have accrued on the amount so
prepaid, or not so borrowed, converted or continued for the period from the date
of such prepayment or of such failure to borrow, convert or continue to the last
day of such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein over (ii) the amount of interest (as determined by such Lender) which
would have accrued to such Lender on such amount by reemploying such funds in
loans of the same type and amount during the period from the date of prepayment
or failure to borrow to the last day of the then applicable Interest Period (or,
in the case of a failure to
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borrow, the Interest Period that would have commenced on the date of such
failure). This covenant shall survive the termination of this Agreement and the
payment of all other amounts payable hereunder.
2.13. TAXES.
(a) All payments made by the Borrower under this Agreement and
the Notes shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income,
documentary stamp or other taxes, levies, imposts, duties, charges,
fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority,
excluding net income taxes and franchise taxes (imposed in lieu of net
income taxes) imposed on the Administrative Agent or any Lender as a
result of a present or former connection between the Administrative
Agent or such Lender and the jurisdiction of the Governmental Authority
imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from
the Administrative Agent or such Lender having executed, delivered or
performed its obligations or received a payment under, or enforced,
this Agreement, any Note or any other Operative Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions
or withholdings ("Non-Excluded Taxes") are required to be withheld from
any amounts payable to the Administrative Agent or any Lender hereunder
or under the Notes, the amounts so payable to the Administrative Agent
or such Lender shall be increased to the extent necessary to yield to
the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement
and the Notes, PROVIDED, HOWEVER, that the Borrower shall not be
required to increase any such amounts payable to any Lender that is not
organized under the laws of the U.S. or a state thereof if such Lender
fails to comply with the requirements of paragraph (b) of this SECTION
2.13. Whenever any Non-Excluded Taxes are payable by the Borrower, then
as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official
receipt received by the Borrower showing payment thereof. If the
Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative
Agent the required receipts or other required documentary evidence, the
Borrower shall indemnify the Administrative Agent and the Lenders for
any incremental taxes, interest, costs or penalties that may become
payable by the Administrative Agent or any Lender as a result of any
such failure. The agreements in this SECTION 2.13(a) shall
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survive the termination of this Agreement and the payment of the Notes
and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
U.S. or a state thereof shall:
(i) deliver to the Borrower and the Administrative
Agent (A) the duly completed copies of IRS Form 1001 or 4224,
or successor applicable form, as the case may be, and (B) an
IRS Form W-8 or W-9, or successor applicable form, as the case
may be;
(ii) deliver to the Borrower and the Administrative
Agent two further copies of any such form or certification on
or before the date that any such form or certification expires
or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously
delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be
requested by the Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on
which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and such
Lender so advises the Borrower and the Administrative Agent. Such
Lender shall certify (i) in the case of a Form 1001 or 4224, that it is
entitled to receive payments under this Agreement without deduction or
withholding of any U.S. federal income taxes and (ii) in the case of a
Form W-8 or W-9, that it is entitled to an exemption from U.S. backup
withholding tax. Each Person that shall become a Participant pursuant
to SECTION 9.7 or a Lender pursuant to SECTION 9.8 shall, upon the
effectiveness of the related transfer, be required to provide all of
the forms and statements required pursuant to this SECTION 2.13(b),
PROVIDED that in the case of a Participant such Participant shall
furnish all such required forms and statements to the Lender from which
the related participation shall have been purchased.
2.14. NOTICE OF AMOUNTS PAYABLE; MANDATORY ASSIGNMENT.
(a) NOTICE. In the event that any Lender becomes
aware that any amounts are or will be owed to it pursuant to SECTION
2.11, 2.12 or 2.13 or that it is unable to make Eurodollar Loans, then
it shall promptly notify the Borrower and the Administrative Agent
thereof and, as soon as
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possible thereafter, such Lender shall submit to the Borrower (with a
copy to the Administrative Agent) a certificate indicating the amount
owing to it and the calculation thereof. The amounts set forth in such
certificate shall be conclusive evidence of the obligations of the
Borrower hereunder absent manifest error.
(b) MANDATORY ASSIGNMENT. In the event that any Lender
delivers to the Borrower a certificate pursuant to SECTION 2.14(a) in
connection with amounts payable pursuant to SECTION 2.11 or SECTION
2.12, or such Lender is required to make Loans as Base Rate Loans in
accordance with SECTION 2.11(d) then, subject to SECTION 11.1 of the
Participation Agreement, the Borrower may, at its own expense and in
its sole discretion, (i) require such Lender to transfer or assign, in
whole or in part, without recourse (in accordance with SECTION 9.8),
all or part of its interests, rights (except for rights to be
indemnified for actions taken while a party hereunder) and obligations
under this Agreement to a replacement bank or institution if the
Borrower (subject to SECTION 11.1 of the Participation Agreement), with
the full cooperation of such Lender, can identify a Person who is
ready, willing and able to be such replacement bank or institution with
respect thereto and such replacement bank or institution (which may be
another Lender) shall assume such assigned obligations, or (ii) during
such time as no Default or Event of Default has occurred and is
continuing, terminate the Commitment of such Lender and prepay all
outstanding Loans of such Lender; PROVIDED, HOWEVER, that (x) the
Borrower or such replacement bank or institution, as the case may be,
shall have paid to such Lender in immediately available funds the
principal of and interest accrued to the date of such payment on the
Loans made by it hereunder and all other amounts owed to it hereunder
(and, if such Lender is also a Holder, all Holder Fundings and Holder
Yield accrued and unpaid thereon), (y) any termination of Commitments
shall be subject to the terms of SECTION 2.5(a) and (z) such assignment
or termination of the Commitment of such Lender and prepayment of Loans
does not conflict with any law, rule or regulation or order of any
court or other Governmental Authority.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, each of the Trust Company and the Owner Trustee
hereby represents and warrants to the Administrative Agent and each Lender as
follows (PROVIDED that the representations in SECTIONS 3.8, 3.9, 3.10, 3.12 and
3.13 are made solely by the Owner Trustee in its capacity as such):
3.1. DUE ORGANIZATION, ETC. It is a national banking association duly
organized, validly existing and in good standing
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under the laws of the United States and has the power and authority to enter
into and perform its obligations under the Trust Agreement and (assuming due
authorization, execution and delivery of the Trust Agreement by the Holders) has
the trust power and authority to act as the Owner Trustee and to enter into and
perform the obligations under each of the other Operative Agreements to which
the Trust Company or the Owner Trustee, as the case may be, is or will be a
party and each other agreement, instrument and document to be executed and
delivered by it on or before the date this representation is made or deemed made
in connection with or as contemplated by each such Operative Agreement to which
the Trust Company or the Owner Trustee, as the case may be, is or will be a
party.
3.2. AUTHORIZATION; NO CONFLICT. The execution, delivery and
performance of each Operative Agreement to which it is or will be a party,
either in its individual capacity or (assuming due authorization, execution and
delivery of the Trust Agreement by the Holders) as the Owner Trustee, as the
case may be, has been duly authorized by all necessary action on its part and
neither the execution and delivery thereof, nor the consummation of the
transactions contemplated thereby, nor compliance by it with any of the terms
and provisions thereof (a) requires or will require any approval of its
stockholders or any approval or consent of any trustee or holders of any of its
indebtedness or obligations, (b) violates or will violate any current law,
governmental rule or regulation relating to its banking or trust powers, (c)
violates or will violate or result in any breach of or constitute any default
under, or result in the creation of any Lien upon any of its property under, (i)
its charter or by-laws, or (ii) any indenture, mortgage, chattel mortgage, deed
of trust, conditional sales contract, bank loan or credit agreement or other
agreement or instrument to which it is a party or by which it or its properties
may be bound or affected, which violation, breach, default or Lien under clause
(ii) would materially and adversely affect its ability, in its individual
capacity or as Owner Trustee, to perform its obligations under the Operative
Agreements to which it is a party or (d) requires or will require any
Governmental Action by any Governmental Authority regulating its banking or
trust powers.
3.3. ENFORCEABILITY, ETC. The Trust Agreement and, assuming the Trust
Agreement is the legal, valid and binding obligation of the Holders, each other
Operative Agreement to which the Trust Company or the Owner Trustee, as the case
may be, is or will be a party have been, or will be, duly executed and delivered
by the Trust Company or the Owner Trustee, as the case may be, and the Trust
Agreement and each such other Operative Agreement to which the Trust Company or
the Owner Trustee, as the case may be, is a party constitutes, or upon execution
and delivery will constitute, a legal, valid and binding obligation enforceable
against the Trust Company or the Owner Trustee, as the case may be, in
accordance with the terms thereof.
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3.4. LITIGATION. There is no action or proceeding pending or, to its
knowledge, threatened to which it is or will be a party, either in its
individual capacity or as the Owner Trustee, before any Governmental Authority
that concerns any Property being purchased or leased or Construction Funding
being funded on the date this representation is made or deemed made or that, if
adversely determined, would materially and adversely affect its ability, in its
individual capacity or as Owner Trustee, to perform its obligations under the
Operative Agreements to which it is a party or would question the validity or
enforceability of any of the Operative Agreements to which it is or will become
a party.
3.5. LESSOR LIENS. Each Property is free and clear of all Lessor Liens
attributable to it in its individual capacity.
3.6. ASSIGNMENT. It has not assigned or transferred any of its right,
title or interest in or under the Lease, the Agency Agreement or its interest in
any Property, except in accordance with the Operative Agreements.
3.7. DEFAULTS. No Default or Event of Default hereunder or under any
other Operative Agreement attributable to it has occurred and is continuing.
3.8. DOCUMENTATION. The Owner Trustee, in its trust capacity, is a
party to no documents, instruments or agreements other than the Operative
Agreements (and any other documents delivered in connection with the Operative
Agreements).
3.9. USE OF PROCEEDS. The Owner Trustee shall use the proceeds of the
Loans solely in accordance with the terms of the Operative Agreements.
3.10. SECURITIES ACT. Neither the Owner Trustee nor any Person
authorized by the Owner Trustee to act on its behalf has offered or sold any
interest in the Trust Estate or the Notes, or in any similar security relating
to a Property, or in any security the offering of which for the purposes of the
Securities Act of 1933, as amended, would be deemed to be part of the same
offering as the offering of the aforementioned securities to, or solicited any
offer to acquire any of the same from, any Person other than in the case of the
Notes, the Lenders, and neither the Owner Trustee nor any Person authorized by
the Owner Trustee to act on its behalf will take any action which would subject,
as a direct result of such action alone, the issuance or sale of any interest in
the Trust Estate or the Notes to the provisions of Section 5 of the Securities
Act of 1933, as amended, or require the qualification of any Operative
Agreement under the Trust Indenture Act of 1939, as amended.
3.11. CHIEF PLACE OF BUSINESS. The Owner Trustee's chief place of
business, chief executive office and office where the documents, accounts and
records relating to the transactions
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contemplated by this Agreement and each other Operative Agreement are kept are
each located at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000.
3.12. FEDERAL RESERVE REGULATIONS. The Owner Trustee is not engaged
principally in, and does not have as one of its important activities, the
business of extending credit for the purpose of purchasing or carrying any
margin stock (within the meaning of Regulation U of the Board), and no part of
the proceeds of the Loans will be used by it to purchase or carry any margin
stock or to extend credit to others for the purpose of purchasing or carrying
any such margin stock or for any purpose that violates, or is inconsistent with,
the provisions of Regulations G, T, U or X of the Board.
3.13. INVESTMENT COMPANY ACT. The Owner Trustee is not an "investment
company" or a company controlled by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
SECTION 4. CONDITIONS PRECEDENT
4.1. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Agreement
is subject to the satisfaction of all conditions precedent set forth in SECTION
6 of the Participation Agreement required by said Section to be satisfied on or
prior to the Initial Closing Date and to the receipt by each Lender of its
Notes, duly executed by the Borrower.
4.2. CONDITIONS TO EACH LOAN. The agreement of each Lender to make any
Loan requested to be made by it on any date is subject to the satisfaction of
the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Borrower in or pursuant to
the Operative Agreements shall be true and correct in all material
respects on and as of such date as if made on and as of such date,
except to the extent that such representations and warranties expressly
relate to an earlier date.
(b) NO DEFAULT. Neither any Event of Default nor (except as
otherwise permitted under SECTION 8.4 of the Participation Agreement)
any Default shall have occurred and be continuing on such date or after
giving effect to the Loans requested to be made on such date.
(c) PARTICIPATION AGREEMENT CONDITIONS. With respect to each
Acquisition Funding and each Construction Funding, the applicable
conditions precedent to the Funding associated therewith specified in
SECTION 5 of the Participation Agreement shall have been satisfied.
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(d) HOLDER CONTRIBUTION. With respect to each Acquisition
Funding and each Construction Funding, the Administrative Agent shall
be satisfied that the Lessor shall receive from the Holders on the
relevant Borrowing Date an amount equal to the Holder Funding
associated with such Loan.
(e) ALLOCATION NOTICE. With respect to each Interest Payment
Loan, the Administrative Agent shall have received an Allocation Notice
no later than five (5) Business Days prior to the Borrowing Date in
respect thereof.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date of such Loan that the conditions
contained in this SECTION 4.2 have been satisfied.
SECTION 5. COVENANTS
So long as any Loan or Note remains outstanding and unpaid or any other
amount is owing to any Lender or the Administrative Agent hereunder or under any
other Credit Document and so long as the Commitments have not been terminated:
5.1. OTHER ACTIVITIES. The Borrower shall not conduct, transact or
otherwise engage in, or commit to transact, conduct or otherwise engage in, any
business or operations other than the entry into, and exercise of rights and
performance of obligations in respect of, the Operative Agreements and other
activities incidental or related to the foregoing.
5.2. OWNERSHIP OF PROPERTIES; INDEBTEDNESS. The Borrower shall not own,
lease, manage or otherwise operate any properties or assets other than the
Ancillary Properties or in connection with the activities described in SECTION
5.1, or incur, create, assume or suffer to exist any Indebtedness or other
consensual liabilities or financial obligations other than the Bridge Debt or as
may be incurred, created or assumed or as may exist in connection with the
activities described in SECTION 5.1 (including, without limitation, the Loans
and other obligations incurred by the Borrower hereunder).
5.3. DISPOSITION OF ASSETS. The Borrower shall not convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or
assets, whether now owned or hereafter acquired, except to the extent expressly
contemplated by the Operative Agreements.
5.4. COMPLIANCE WITH OPERATIVE AGREEMENTS. The Borrower shall at all
times (a) observe and perform all of the covenants, conditions and obligations
required to be performed by it (whether in its capacity as Lessor, Owner Trustee
or otherwise) under each Operative Agreement to which it is a party and (b)
observe and perform, or cause to be observed and performed,
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all of the covenants, conditions and obligations of the Lessor under the Lease,
even in the event that the Lease is terminated at stated expiration following a
Lease Event of Default or otherwise.
5.5. FURTHER ASSURANCES. At any time and from time to time, upon the
written request of the Administrative Agent, and at the sole expense of the
Borrower, the Borrower will promptly and duly execute and deliver such further
instruments and documents and take such further action as the Administrative
Agent or the Majority Lenders may reasonably request for the purpose of
obtaining or preserving the full benefits of this Agreement and the other
Operative Agreements and of the rights and powers herein or therein granted.
5.6. NOTICES. If on any date, a Responsible Officer of the Borrower
shall obtain actual knowledge of the occurrence of a Default or Event of
Default, the Borrower will give written notice thereof to the Administrative
Agent within five (5) Business Days after such date.
5.7. DISCHARGE OF LIENS. Neither the Borrower nor the Trust Company
will create or permit to exist at any time (and each of the Borrower and the
Trust Company will, at its own expense, promptly take such action as may be
necessary duly to discharge, or cause to be discharged), any Lessor Liens
attributable to it on the Properties, PROVIDED that the Borrower and the Trust
Company shall not be required to discharge any Lessor Lien while the same is
being contested in good faith by appropriate proceedings diligently prosecuted
so long as (a) such proceedings shall not involve any material danger of
impairment of any of the Liens contemplated by the Security Documents or of the
sale, forfeiture or loss of any Property or title thereto or any interest
therein or the payment of Rent, and (b) such proceedings shall not materially
interfere with the disposition of any Property or title thereto or interest
therein or the payment of Rent.
5.8. TRUST AGREEMENT. Without prejudice to any right of the Owner
Trustee under the Trust Agreement to resign, the Owner Trustee (a) agrees not to
terminate or revoke the trust created by the Trust Agreement except as permitted
by ARTICLE VIII of the Trust Agreement, (b) agrees not to amend, supplement,
terminate, revoke or otherwise modify any provision of the Trust Agreement in
any manner which could reasonably be expected to have an adverse effect on the
rights or interests of the Administrative Agent or the Lenders hereunder or
under the other Operative Agreements and (c) agrees to comply with all of the
terms of the Trust Agreement.
SECTION 6. EVENTS OF DEFAULT
Upon the occurrence of any of the following specified events (each an
"Event of Default"):
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(a) The Borrower shall, except as provided in paragraph (c),
default, and such default shall continue for five (5) or more days, in
the payment when due of any principal or interest on any Loan; or
(b) Except as provided in paragraphs (a) and (c), the Borrower
shall default, and such default shall continue for ten (10) or more
days, in the payment of any amount owing under any of the Credit
Documents; or
(c) The Borrower shall default in the payment of any amount
due on the Maturity Date owing under any Credit Document; or
(d) The Borrower shall default in the due performance or
observance by it of any term, covenant or agreement contained in any
Credit Document to which it is a party (other than those referred to in
paragraphs (a), (b) and (c) above), PROVIDED that in the case of any
such default under SECTION 5.4, 5.5 or 5.8(c), such default shall
continue for a period of at least thirty (30) days after notice to the
Borrower and the Lessee by the Administrative Agent or the Majority
Lenders; or
(e) Any representation, warranty or statement made or deemed
made by the Borrower herein or in any other Credit Document, or by the
Borrower, or the Lessee or the Construction Agent in the Participation
Agreement, the Lease or the Agency Agreement or in any statement or
certificate delivered or required to be delivered pursuant hereto or
thereto, shall prove to be untrue in any material respect on the date
as of which made or deemed made; or
(f) (i) Any Lease Event of Default shall have occurred and be
continuing; or
(ii) The Owner Trustee shall default in the due performance
or observance by it of any term, covenant or agreement contained in the
Participation Agreement or in the Trust Agreement to or for the benefit
of the Administrative Agent or a Lender, PROVIDED that in the case of
this clause (ii), such default shall continue unremedied for a period
of at least thirty (30) days after notice to the Owner Trustee and the
Lessee by the Administrative Agent or the Majority Lenders; or
(iii) Any Wackenhut Corrections Credit Agreement Event of
Default shall have occurred and be continuing; or
(iv) Any Bridge Loan Event of Default shall have occurred
and be continuing; or
(g) The Borrower shall be unable to pay its debts generally as
they become due; file a petition to take
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advantage of any insolvency statute; make an assignment for the benefit
of its creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole
or any substantial part of its property; file a petition or answer
seeking liquidation, reorganization or arrangement or similar relief
under the federal bankruptcy laws or any other applicable law or
statute; or
(h) Any court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or of the whole or any
substantial part of its properties and such order, judgment or decree
continues unstayed and in effect for a period of sixty (60) days, or
approve a petition filed against the Borrower seeking liquidation,
reorganization or arrangement or similar relief under the federal
bankruptcy laws or any other applicable law or statute of the United
States of America or any state, which petition is not dismissed within
sixty (60) days; or if, under the provisions of any other law for the
relief or aid of debtors, a court of competent jurisdiction shall
assume custody or control of the Borrower or of the whole or any
substantial part of its properties, which control is not relinquished
within sixty (60) days; or if there is commenced against the Borrower
any proceeding or petition seeking reorganization, arrangement or
similar relief under the federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state
which proceeding or petition remains undismissed for a period of sixty
(60) days; or if the Borrower takes any action to indicate its consent
to or approval of any such proceeding or petition; or
(h) Any Security Document shall cease to be in full force and
effect, or shall cease to give the Administrative Agent the Liens,
rights, powers and privileges purported to be created thereby
(including, without limitation, a first priority perfected security
interest in, and Lien on, all of the Properties), in favor of the
Administrative Agent on behalf of itself and the Lenders, superior to
and prior to the rights of all third Persons and subject to no other
Liens (except Permitted Liens); or
(i) The Lease, the Guaranty or any other Operative Agreement
shall cease to be enforceable against the Lessee, the Construction
Agent or the Guarantor; or
(j) One or more judgments or decrees shall be entered against
the Borrower involving a liability of $50,000 or more for any one such
judgment or decree, or $100,000 or more in the aggregate for all such
judgments and decrees, and any such judgments or decrees shall not have
been
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vacated, discharged or stayed or bonded pending appeal within thirty
(30) days from the entry thereof; or
(k) Any default by any party shall have occurred and be
continuing under any lease or sublease (other than the Lease or any
sublease by Lessee permitted under SECTION 25.2(b) of the Lease) of any
portion of any Property;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (g) above with respect to the Borrower, the Commitments shall
automatically and immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement, the Notes
and any other Credit Documents, shall immediately become due and payable, and
(B) if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Majority Lenders, the
Administrative Agent may, or upon the request of the Majority Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Commitments
to be terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) with the consent of the Majority Lenders, the Administrative
Agent may, or upon the request of the Majority Lenders, the Administrative Agent
shall, by notice to the Borrower, declare the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement, the Notes
and any other Credit Documents, to be due and payable forthwith, whereupon the
same shall immediately become due and payable (any of the foregoing occurrences
or actions referred to in clause (A) or (B) above, being referred to as an
"Acceleration"). Except as expressly provided above in this SECTION 6,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
Upon the occurrence of any Event of Default and at any time thereafter
so long as any Event of Default shall be continuing, the Administrative Agent
may, and upon the written instructions of the Majority Lenders shall, exercise
any or all of the rights and powers and pursue any or all of the remedies
available to it hereunder and under the other Credit Documents and the Lease and
shall have any and all rights and remedies available under the Uniform
Commercial Code or any other provision of law (all such remedies being
cumulative and in addition to any other remedies that may be available).
Upon the occurrence of any Event of Default and at any time thereafter
so long as any Event of Default shall be continuing, the Administrative Agent
may, and upon request of the Majority Lenders shall, proceed to protect and
enforce this Agreement, the Notes, the Lease, and the other Operative Agreements
by one or more suits or proceedings in equity, at law or in bankruptcy, whether
for the specific performance of any covenant or agreement contained therein or
in execution or aid of any power granted therein, or for foreclosure hereunder,
or for the appointment of a receiver for any Property, or for the recovery of
judgment for
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any indebtedness secured thereby, or for the enforcement of any other remedy
available under applicable laws.
The Borrower shall be liable for any and all accrued and unpaid amounts
due hereunder before, during or after the exercise of any of the foregoing
remedies, including without limitation all reasonable legal fees and other
reasonable costs and expenses incurred by the Administrative Agent or any Lender
by reason of the occurrence of any Event of Default or the exercise of remedies
with respect thereto.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1. APPOINTMENT. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Operative Agreements, and each Lender irrevocably
authorizes the Administrative Agent, in such capacity, to execute the Operative
Agreements as agent for and on behalf of such Lender, to take such action on
behalf of such Lender under the provisions of this Agreement and the other
Operative Agreements and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Agreement
and the other Operative Agreements, together with such other powers as are
reasonably incidental thereto. Without limiting the generality of the foregoing,
each of the Lenders hereby specifically acknowledges the terms and provisions of
the Participation Agreement and directs the Administrative Agent to exercise
such powers, make such decisions and otherwise perform such duties as are
delegated to the Administrative Agent thereunder without being required to
obtain any specific consent with respect thereto from any Lender.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Operative Agreement
or otherwise exist against the Administrative Agent.
7.2. DELEGATION OF DUTIES. The Administrative Agent may execute any of
its duties under this Agreement and the other Operative Agreements through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
7.3. EXCULPATORY PROVISIONS. Neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (a) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Operative
Agreement (except for its or such Person's own gross negligence
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or willful misconduct) or (b) responsible in any manner to any of the Lenders
for any recitals, statements, representations or warranties made by the Borrower
or the Lessee or any officer thereof contained in this Agreement or any other
Operative Agreement or in any certificate, report, statement or other document
provided in connection with, this Agreement or any other Operative Agreement or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Operative Agreement or for any
failure of the Borrower or the Lessee to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be under any obligation to any
Lender 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
Operative Agreement, or to inspect the properties, books or records of the
Borrower or the Lessee.
7.4. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
reasonably 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, without limitation, counsel to the Borrower or the
Lessee), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other
Operative Agreement unless it shall first receive such advice or concurrence of
the Majority Lenders as it deems appropriate or 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 and the other Operative Agreements
in accordance with a request of the Majority Lenders, and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
7.5. NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received written notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with
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respect to such Default or Event of Default as shall be reasonably directed by
the Majority Lenders; PROVIDED that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interest of the Lenders.
7.6. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower or the Lessee, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and the Lessee and made its own
decision to make its Loans hereunder and enter into this Agreement. Each Lender
also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Operative Agreements, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and the Lessee. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Administrative Agent
hereunder, the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Borrower or the Lessee which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
7.7. INDEMNIFICATION. The Lenders agree to indemnify the Administrative
Agent, in its capacity as such (to the extent not reimbursed by the Borrower or
the Lessee and without limiting the obligation of the Borrower or the Lessee to
do so), ratably according to their respective Commitment Percentages in effect
on the date on which indemnification is sought under this SECTION 7.7 (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with their Commitment Percentages immediately prior to such date), from and
against any
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and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including, without limitation, at any time following the
payment of the Notes) be imposed on, incurred by or asserted against any of them
in any way relating to or arising out of, the Commitments, this Agreement, any
of the other Operative Agreements or any documents contemplated by or referred
to herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by any of them under or in connection with any of the
foregoing; PROVIDED that the Administrative Agent shall not be indemnified
hereunder against any liabilities, obligations, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent resulting from
the gross negligence or willful misconduct of the Administrative Agent. The
agreements in this SECTION 7.7 shall survive the payment of the Notes and all
other amounts payable hereunder or under any other Credit Document.
7.8. ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower or the Lessee as
though the Administrative Agent were not the Administrative Agent hereunder and
under the other Operative Agreements. With respect to any Loans made or renewed
by it and any Note issued to it, the Administrative Agent shall have the same
rights and powers under this Agreement and the other Operative Agreements as any
Lender and may exercise the same as though it were not the Administrative Agent,
and the terms "Lender" and "Lenders" shall include the Administrative Agent in
its individual capacity.
7.9. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent upon thirty (30) days' notice to the Lenders, the
Borrower and, so long as no Lease Event of Default shall have occurred and be
continuing, the Lessee. If the Administrative Agent shall resign as
Administrative Agent under this Agreement, the Majority Lenders shall appoint
from among the Lenders a successor Administrative Agent which successor
Administrative Agent shall be subject to the approval of the Borrower and, so
long as no Lease Event of Default shall have occurred and be continuing, the
Lessee, such approval not to be unreasonably withheld, conditioned or delayed.
If no successor Administrative Agent is appointed prior to the effective date of
the resignation of the resigning Administrative Agent, the Administrative Agent
may appoint a successor Administrative Agent from among the Lenders, after
consulting with the Lenders and subject to the approval of the Borrower and, so
long as no Lease Event of Default shall have occurred and be continuing, the
Lessee, such approval not to be unreasonably withheld, conditioned or delayed.
If no successor Administrative Agent has accepted appointment as Administrative
Agent by the date which is thirty days following a retiring Administrative
Agent's notice of resignation, the retiring agent's notice of
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resignation shall nevertheless thereupon become effective and the Lenders shall
perform all of the duties of Administrative Agent until such time, if any, as
the Majority Lenders appoint a successor Administrative Agent, as provided for
above. Upon the effective date of such resignation, the successor Administrative
Agent shall succeed to all the rights, powers and duties of the retiring
Administrative Agent, the term "Administrative Agent" shall mean such successor
Agent, and the retiring Administrative Agent's rights, powers and duties in such
capacity shall be terminated. After any retiring Administrative Agent resigns
hereunder, the provisions of this ARTICLE VII and SECTION 9.5 shall inure to the
benefit of such retiring Agent as to any actions taken or omitted to be taken by
it while it was Administrative Agent under this Agreement.
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL
8.1. COLLECTION OF PAYMENTS AND OTHER AMOUNTS.
(a) The Lessee has agreed pursuant to the terms of the
Participation Agreement to pay directly to the Administrative Agent any
and all Rent and any other amounts of any kind or type owing by the
Lessee to the Lessor or the Owner Trustee under the Lease or any other
Operative Agreement. The Administrative Agent shall, promptly after
receipt, apply in accordance with the terms of this SECTION 8 any such
amounts received from the Lessee and all other payments, receipts and
other consideration received by the Administrative Agent pursuant to
the Security Agreement or otherwise received by the Administrative
Agent or any of the Lenders in connection with the Collateral, the
Security Documents or any of the other Operative Agreements.
(b) Payments and other amounts received by the Administrative
Agent from time to time in accordance with the terms of subparagraph
(a) shall be applied as follows:
(i) Any such payment identified as Basic Rent shall
be applied by the Administrative Agent FIRST, ratably to the
Lenders for application to the payment of interest on the
Loans which is due and payable on such date (other than,
except in the case of an Acceleration, Allocated Interest);
and SECOND, to the Borrower for application ratably to the
payment of accrued Holder Yield with respect to Holder
Property Cost (other than, except in the case of an
Acceleration, Allocated Return); and THIRD, if no Default or
Event of Default has occurred and is continuing, any excess
shall be paid to such Person or Persons as the Lessee may
designate; PROVIDED that if a Default or Event of Default is
in effect, such excess (if any) shall instead be held by the
Administrative Agent until the earlier of (I) the first date
thereafter on which no Default or Event of Default
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shall be continuing (in which case such payments shall then be
made to such other Person or Persons designated by the Lessee)
and (II) the Maturity Date (or, if earlier, the date of any
Acceleration) in which case such amounts shall be applied in
the manner contemplated by SECTION 8.1(b)(iv).
(ii) Any such payment or amount described in SECTION
2.6(b) shall be applied in accordance with the terms of
SECTION 2.6(b).
(iii) Any such payment identified as proceeds of the
sale of any Property, whether pursuant to ARTICLE XXII of the
Lease or pursuant to the exercise of remedies under the
Security Documents or otherwise, and any payment in respect of
excess wear and tear pursuant to SECTION 22.3 of the Lease,
shall be applied by the Administrative Agent FIRST, ratably to
the payment of the principal and interest of the Series B
Loans then outstanding, SECOND, to the payment to the Borrower
of an amount not to exceed the outstanding principal balance
of all Holder Fundings plus all outstanding Holder Yield with
respect to such outstanding Holder Fundings, THIRD, to the
extent such payment exceeds the maximum amount payable
pursuant to the foregoing provisions of this paragraph (iii),
ratably to the payment of the principal and interest of the
Series A Loans plus any and all other amounts owing to the
Administrative Agent and the Lenders hereunder or under any of
the other Operative Agreements and FOURTH, to the extent
moneys remain after application pursuant to clauses FIRST
through THIRD above, to the Borrower for application to any
and all other amounts owing to the Holders or the Borrower and
as the Borrower and the Holders shall determine.
(iv) Any such payment identified as a payment
pursuant to SECTION 22.1(b) of the Lease (or otherwise) of the
Maximum Residual Guarantee Amount (or any such lesser amount
as may be required by SECTION 22.1(b) of the Lease) in respect
of the Properties shall be applied by the Administrative Agent
FIRST, ratably to the payment of the principal and interest
balance of the Series A Loans then outstanding, SECOND, to the
payment of any other amounts owing to the Administrative Agent
or the Lenders hereunder or under any of the other Operative
Agreement, and THIRD, to the extent moneys remain after
application pursuant to clauses FIRST and SECOND above, to the
Borrower for application to Holder Fundings and Holder Yield
and any other amounts owing to the Holders or the Borrower as
the Borrower and the Holders shall determine.
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(v) Any such payment identified as Supplemental Rent
shall be applied by the Administrative Agent to the payment of
any amounts then owing to the Administrative Agent, the
Lenders, the Holders and the other parties to the Operative
Agreements (or any of them) (other than any such amounts
payable pursuant to the preceding provisions of this SECTION
8.1(b)) as shall be determined by the Administrative Agent in
its reasonable discretion.
(vi) The Administrative Agent in its reasonable
judgment shall identify the nature of each payment or amount
received by the Administrative Agent and apply each such
amount in the manner specified above.
(c) Upon the termination of the Commitments and the payment in
full of the Loans and all other amounts owing by the Borrower hereunder
or under any other Credit Document, any such moneys remaining with the
Administrative Agent shall be paid to the Borrower or such other Person
or Persons as the Borrower may designate. In the event of an
Acceleration it is agreed that, prior to the application of amounts
received by the Administrative Agent in the order described in SECTION
8.1(b) above, any such amounts shall first be applied to the payment of
(i) any and all sums advanced by the Administrative Agent in order to
preserve the Collateral or preserve its security interest therein, (ii)
the reasonable expenses of retaking, holding, preparing for sale or
lease, selling or otherwise disposing or realizing on the Collateral,
or of any exercise by the Administrative Agent of its rights under the
Security Documents, together with reasonable attorneys' fees and court
costs and (iii) any other amounts owed to the Administrative Agent
under or in connection with the transactions contemplated by the
Operative Agreements (including without limitation any accrued and
unpaid administration fees).
8.2. CERTAIN REMEDIAL MATTERS. Notwithstanding any other provision of
this Agreement or any other Credit Document:
(a) the Borrower shall at all times retain all rights
to Excepted Payments payable to or for the account of the Owner Trustee
or any of the Holders and to demand, collect or commence an action at
law to obtain such payments and to enforce any judgment with respect
thereto (but not to terminate the Lease as a result thereof); and
(b) the Borrower shall at all times retain the right, but not
to the exclusion of the Administrative Agent, (A) to receive from the
Lessee all notices, certificates and other documents and all
information that the Lessee is permitted or required to give or furnish
to the Borrower or the Lessor pursuant to the Lease, the Participation
Agreement or any
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other Operative Agreement, (B) to retain all rights with respect to
insurance that ARTICLE XIV of the Lease specifically confers upon the
"Lessor", (C) to provide such insurance as the Lessee shall have failed
to maintain or as the Borrower may desire, and (D) to enforce
compliance by the Lessee with the provisions of ARTICLES VIII, IX, X,
XI, XIV AND XVII of the Lease.
8.3. RELEASE OF PROPERTIES, ETC. If the Lessee shall at any time
purchase any Property pursuant to the terms of the Lease, or the Construction
Agent shall purchase any Property pursuant to the Agency Agreement, or if any
Property shall be sold in accordance with ARTICLE XXII of the Lease, then, upon
satisfaction by the Borrower of its obligation to prepay the Loans and to pay
accrued interest on the Loans so prepaid pursuant to SECTION 2.6, the
Administrative Agent is hereby authorized to release such Property from the
Liens created by the Security Documents. In addition, upon the termination of
the Commitments and the payment in full of the Loans and all other amounts owing
by the Borrower, the Lessee and the Construction Agent hereunder or under any
other Operative Agreement the Administrative Agent is hereby authorized to
release all of the Properties from the Liens created by the Security Documents;
provided that such payment shall be sufficient to pay in full the Loans and all
other amounts owing by the Borrower, the Lessee or the Construction Agent
hereunder or under the other Operative Agreements. Upon request of the Borrower
or the Lessee following any such release, the Administrative Agent shall, at the
sole cost and expense of the Borrower or the Lessee, execute and deliver to the
Borrower or the Lessee such documents as the Borrower or the Lessee shall
reasonably request to evidence such release.
8.4. EXCEPTED PAYMENTS. Notwithstanding any other provision of this
Agreement or the Security Documents, any Excepted Payment received at any time
by the Administrative Agent shall be distributed promptly to the Person entitled
to receive such Excepted Payment.
SECTION 9. MISCELLANEOUS
9.1. AMENDMENTS AND WAIVERS. Neither this Agreement nor any other
Credit Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this SECTION 9.1. The
Majority Lenders may, or, with the written consent of the Majority Lenders, the
Administrative Agent may, from time to time, (a) enter into written agreements
with the Borrower, amending, modifying or supplementing the Credit Documents for
the purpose of adding any provisions to the Credit Documents or changing in any
manner the rights of the Administrative Agent, the Lenders or the Borrower
thereunder or (b) waive, on such terms and conditions as the Majority Lenders
may specify in such instrument, any of the requirements of the Credit Documents
or any Default or Event of
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Default and its consequences. In addition, the Administrative Agent may from
time to time consent in writing to amendments, supplements, modifications or
waivers with respect to any Operative Agreement (other than the Credit Documents
but including the Guaranty Agreement), subject to receipt of the prior written
consent of the Majority Lenders; PROVIDED, HOWEVER, that so long as the
Administrative Agent has no actual knowledge of the existence of an Event of
Default the Administrative Agent may grant waivers or consents with respect to
the terms and requirements of the Participation Agreement without the prior
consent of the Lenders (as such authority of the Administrative Agent is more
specifically described in SECTION 7.1 hereof). Notwithstanding the foregoing, no
such amendment, supplement, modification or waiver shall (i) reduce the amount
or extend the scheduled date of maturity of any Note, or reduce the stated rate
of any interest payable hereunder (other than as a result of waiving the
applicability of any post default increase in interest rates) or any Unused Fees
payable under the Participation Agreement, or extend the scheduled date of any
payment of such interest or Unused Fees, or increase the amount or extend the
expiration date of any Lender's Commitment, in each case without the consent of
each Lender directly affected thereby, or (ii) amend, modify or waive any
provision of this SECTION 9.1 or reduce the percentage specified in the
definition of Majority Lenders, or consent to the assignment or transfer by the
Borrower of or release the Borrower from any of its rights and obligations under
the Credit Documents, or release a material portion of the Collateral (except in
accordance with SECTION 8.3), or release the Lessee from its obligations under
the Lease, or release the Guarantor from its obligations under the Guaranty, or
otherwise alter any payment obligations of the Lessee to the Lessor or the
Lessor to the Administrative Agent or the Lenders under the Operative
Agreements, in each case without the written consent of all the Lenders, or
(iii) amend, modify or waive any provision of SECTION 7 without the written
consent of the then Administrative Agent. Any such waiver, amendment, supplement
or modification shall be binding upon the Borrower, the Lessee, the Lenders and
the Administrative Agent and all future holders of the Notes. In the case of any
waiver, the Borrower, the Lessee, the Lenders and the Administrative Agent shall
be restored to their former position and rights under the Credit Documents, and
any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extent to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
9.2. NOTICES. All notices, requests and demands to or upon the
respective parties hereto shall be in writing and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered,
or three Business Days after being deposited in the mail, postage prepaid, or,
in the case of telecopy notice, when received, addressed as follows in the case
of the Borrower and the Administrative Agent, and as set forth in SCHEDULE 1.2
in the case of the other parties hereto, or to such
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other address as may be hereafter notified by any party hereto or any future
holder of the Notes:
The Borrower:
First Security Bank, National Association
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxx X. Xxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
NationsBank, as Administrative Agent:
NationsBank, National Association
000 Xxxxxxxxx 0xx Xxxxxx
XX0-000-00-00
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with all notices of borrowing, conversion, continuation or
prepayment to be sent to:
NationsBank, N.A.
Agency Services
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx XxXxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
PROVIDED that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to SECTION 2.3, 2.5, 2.6 or 2.7 shall not be effective
until received.
9.3. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right remedy, power or privilege hereunder or under the other Credit Documents
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or future
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.
9.4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder, in the other Credit Documents and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall, except
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as otherwise specifically limited therein, survive the execution and delivery of
this Agreement and the Notes and the making of the Loans hereunder.
9.5. PAYMENT OF EXPENSES AND TAXES. The Borrower agrees to: (a) pay all
reasonable out-of-pocket costs and expenses of (i) the Administrative Agent,
whether or not the transactions herein contemplated are consummated, in
connection with the negotiation, preparation, execution and delivery of the
Operative Agreements and the documents and instruments referred to therein and
any amendment, waiver or consent relating thereto (including, without
limitation, the reasonable fees and disbursements of counsel for the Agent) and
(ii) the Administrative Agent and each of the Lenders in connection with the
enforcement of the Operative Agreements and the documents and instruments
referred to therein (including, without limitation, the reasonable fees and
disbursements of counsel for the Administrative Agent and for each of the
Lenders) and (b) pay and hold each of the Lenders harmless from and against any
and all present and future stamp and other similar taxes with respect to the
foregoing matters and save each of the Lenders harmless from and against any and
all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to such Lender) to pay such taxes.
9.6. SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS. This
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Lenders, the Administrative Agent, all future holders of the Notes and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
9.7. PARTICIPATIONS. Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time sell to one or more
banks, financial institutions or other entities (each, a "Participant")
participating interests in any Loan owing to such Lender, the Notes held by such
Lender, any Commitment of such Lender or any other interest of such Lender
hereunder and under the other Operative Agreements; PROVIDED that any such sale
of a participating interest shall be in a principal amount of at least
$5,000,000. In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this Agreement shall
remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Note for
all purposes under this Agreement and the Notes, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement and
the Notes. In no event shall any Participant have any right to approve any
amendment or waiver of any provision of this Agreement or any other Operative
Agreement, or any consent to any departure by the Borrower or any other Person
therefrom, except to the extent that such amendment,
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waiver or consent would (a) reduce the principal of, or interest on, any Loan or
Note, or postpone the date of the final maturity of any Loan or Note, or reduce
the amount of any Unused Fee, in each case to the extent subject to such
participation or (b) release all or substantially all of the Collateral.
9.8. ASSIGNMENTS; ADDITIONAL COMMITMENT.
(a) Any Lender may, in accordance with applicable law, at any
time and from time to time assign to any Lender or any affiliate of any
Lender or, with the consent (subject to SECTION 11.1 of the
Participation Agreement) of the Borrower and the Administrative Agent
(which in each case shall not be unreasonably withheld, conditioned or
delayed), to an additional bank, financial institution or other entity
that (i) is either organized under the laws of the United States or any
state thereof or is a foreign bank that operates a branch office in the
United States and (ii) in either case, is not the Lessee or any
affiliate of the Lessee, (each such permitted assignee being referred
to as a "Purchasing Lender"), all or any part of its rights and
obligations under this Agreement and the other Operative Agreements
pursuant to an Assignment and Acceptance, substantially in the form of
EXHIBIT C, executed by such Purchasing Lender, such assigning Lender
(and, in the case of a Purchasing Lender that is not a Lender or an
affiliate thereof, subject to SECTION 11.1 of the Participation
Agreement, by the Borrower and the Administrative Agent) and delivered
to the Administrative Agent for its acceptance and recording in the
Register; PROVIDED that no such assignment to a Purchasing Lender
(other than any Lender or any affiliate thereof) of the Commitments
hereunder shall be in an aggregate principal amount less than
$5,000,000 (other than in the case of an assignment of all of a
Lender's interests under this Agreement and the Notes), and PROVIDED
FURTHER that the assigning Lender shall simultaneously assign to the
same Purchasing Lender the same percentage of the assigning Lender's
rights and obligations under each of the Operative Agreements (with
respect to each of the Series A Loans and the Series B Loans), and
PROVIDED FURTHER that the Borrower (or, subject to SECTION 11.1 of the
Participation Agreement, the Lessee) may withhold its approval of such
an assignment if as a result of such assignment the Borrower incurs
increased cost under SECTION 2.13. Upon such execution, delivery,
acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Purchasing Lender
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein, and (y) the assigning
Lender thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and,
in the case of an Assignment and
34
38
Acceptance covering all of the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such assigning
Lender shall cease to be a party hereto). Notwithstanding anything to
the contrary in this Agreement, the consent of the Borrower shall not
be required, and, unless requested by the relevant Purchasing Lender or
assigning Lender, new Notes shall not be required to be executed and
delivered by the Borrower, for any assignment which occurs at any time
when any of the events described in SECTION 6(g) shall have occurred
and be continuing.
(b) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and a Purchasing Lender (and, in the case of a
Purchasing Lender that is not a Lender or an affiliate thereof, by the
Borrower and the Administrative Agent) together with payment to the
Administrative Agent of a registration and processing fee of $2,500
(which shall not be payable by the Borrower, except in connection with
an assignment requested in accordance with SECTION 2.14(b)), the
Administrative Agent shall (i) promptly accept such Assignment and
Acceptance and (ii) promptly after the effective date determined
pursuant thereto, record the information contained therein in the
Register and give notice of such acceptance and recordation to the
Lenders and the Borrower on or prior to such effective date, the
Borrower, at its own expense, shall execute and deliver to the
Administrative Agent new Notes (in exchange for the Notes of the
assigning Lender), each in an amount equal to the Commitment assumed or
Loans purchased by the relevant Purchasing Lender pursuant to such
Assignment and Acceptance, and, if the assigning Lender has retained a
Commitment or any Loan hereunder, new Notes to the order of the
assigning Lender, each in an amount equal to the Commitment or Loans
retained by it hereunder. Such new Notes shall be dated the Effective
Date and shall otherwise be in the form of the Notes replaced thereby.
(c) Each Purchasing Lender (other than any Lender organized
and existing under the laws of the U.S. or any state thereof, or any
political subdivision of the U.S. or of any such state), by executing
and delivering an Assignment and Acceptance,
(i) agrees to execute and deliver to the
Administrative Agent, as promptly as practicable, four signed
copies (two for the Administrative Agent and two for delivery
by the Administrative Agent to the Borrower) of IRS Form 1001,
Form 4224 or Form W-8 (or any successor form or comparable
form) claiming complete exemption from withholding and
deduction for or on account of U.S. Federal taxes on or in
respect of payments of principal and interest under or in
respect of this Agreement (it being understood that if
35
39
the applicable form is not so delivered, payments under or in
respect of this Agreement may be subject to withholding and
deduction);
(ii) represents and warrants to the Borrower and the
Administrative Agent that the form so delivered is true and
accurate and that, as of the effective date of the applicable
Assignment and Acceptance, each of such Purchasing Lender's
Lending Offices is entitled to receive payments of principal
and interest under or in respect of this Agreement without
withholding or deduction for or on account of any taxes
imposed by the U.S. Federal government;
(iii) agrees to deliver annually hereafter to each of
the Borrower and the Administrative Agent not later than
December 31 of the year preceding the year to which it will
apply, two further properly completed signed copies of IRS
Form 1001, Form 4224 or Form W-8 (or any successor form or
comparable form), as appropriate, unless an event has occurred
which renders the relevant form inapplicable (it being
understood that if the applicable form is not so delivered,
payments under or in respect of this Agreement may be subject
to withholding and deduction);
(iv) agrees to promptly notify the Borrower and the
Administrative Agent in writing if it ceases to be entitled to
receive payments of principal and interest under or in respect
of this Agreement without withholding or deduction for or on
account of any taxes imposed by the U.S. or any political
subdivision in or of the U.S. (it being understood that
payments under or in respect of this Agreement may be subject
to withholding and deduction in such event);
(v) acknowledges that in the event it ceases to be
exempt from withholding or deduction of such taxes, the
Administrative Agent may withhold or deduct the applicable
amount from any payments to which such assignee Lender would
otherwise be entitled, without any liability to such assignee
Lender therefor; and
(vi) agrees to indemnify the Borrower and the
Administrative Agent from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs or expenses that result from such assignee
Lender's breach of any such representation, warranty or
agreement.
(d) Any Lender party to this Agreement may, from time
to time and without the consent of the Borrower or any other
Person, pledge or assign for security purposes any portion
36
40
of its Loans or any other interests in this Agreement and the other
Credit Documents to any Federal Reserve Bank.
9.9. THE REGISTER; DISCLOSURE. The Administrative Agent shall maintain
at its address referred to in SECTION 9.2 a copy of each Assignment and
Acceptance delivered to it and a register (the "Register") for the recordation
of the names and addresses of the Lenders, the Commitments of the Lenders, and
the principal amount of the Loans by Series owing to each Lender from time to
time. The entries in the Register shall be conclusive, in the absence of clearly
demonstrable error, and the Borrower, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register as the owner of the
Loan recorded therein for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable notice.
9.10. ADJUSTMENTS; SET-OFF.
(a) If any Lender (a "BENEFITTED LENDER") shall at any time
receive any payment of all or part of its Loans, or interest thereon,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the
nature referred to in SECTION 6(g), or otherwise), in a greater
proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans, or interest
thereon, such Benefitted Lender shall purchase for cash from the other
Lenders a participating interest in such portion of each such other
Lender's Loans, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary
to cause such Benefitted Lender to share the excess payment or benefits
of such collateral or proceeds ratably with each of the Lenders as to
each Category of Loans; PROVIDED, HOWEVER, that if all or any portion
of such excess payment or benefit is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but
without interest. The Borrower agrees that any Lender so purchasing a
participation from a Lender pursuant to this SECTION 9.10 may, to the
fullest extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as
fully as if such Person were the direct creditor of the Borrower in the
amount of such participation.
(b) In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such
rights, upon the occurrence of an Event of Default, each of the
Administrative Agent and each Lender is hereby authorized at any time
or from time to time, without presentment, demand, protest or other
notice
37
41
of any kind to the Borrower or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and apply
any and all deposits (general or special) and any other Indebtedness at
any time held or owing by the Administrative Agent or such Lender
(including, without limitation, by branches and agencies of the
Administrative Agent or such Lender wherever located) to or for the
credit or the account of the Borrower against and on account of the
obligations and liabilities of the Borrower to the Administrative Agent
or such Lender under this Agreement or under any of the other Operative
Agreements, including, without limitation, all interests in obligations
of the Borrower purchased by any such Lender pursuant to SECTION
9.10(a), and all other claims of any nature or description arising out
of or connected with this Agreement or any other Operative Agreement,
irrespective or whether or not the Administrative Agent or such Lender
shall have made any demand and although said obligations, liabilities
or claims, or any of them, shall be contingent or unmatured.
9.11. COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
9.12. SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.13. INTEGRATION. This Agreement and the other Operative Documents
represent the agreement of the Borrower, the Administrative Agent, and the
Lenders with respect to the subject mater hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Operative Documents.
9.14. GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
FLORIDA WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICT OF
LAW.
9.15. SUBMISSION TO JURISDICTION; WAIVERS. The Borrower hereby
irrevocably and unconditionally:
38
42
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of Florida and the courts of the United States of
America, in each case sitting in Broward County, Florida, and appellate
courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same,
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail) postage
prepaid, to the Borrower at its address set forth in SECTION 9.2 or at
such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this SECTION 9.15 any special, exemplary, punitive or
consequential damages.
9.16. ACKNOWLEDGMENTS. Borrower hereby acknowledges that:
(a) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement or any of the other Credit Documents,
and the relationship between the Administrative Agent and the Lenders,
on one hand, and the Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(b) no joint venture is created hereby or by the
other Credit Documents or otherwise exists by virtue of the
transactions contemplated hereby among the Lenders or among the
Borrower and the Lenders.
9.17. WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
39
43
9.18. NONRECOURSE. Anything to the contrary contained in this Agreement
or in any other Operative Agreement notwithstanding, neither the Borrower nor
any Holder nor any officer, director or shareholder thereof, nor any of the
Borrower's successors or assigns (all such Persons being hereinafter referred to
collectively as the "Exculpated Persons"), shall be liable in its individual
capacity in any respect for any liability or obligation hereunder or under any
other Operative Agreement including the payment of the principal of, or interest
on, the Notes, or for monetary damages for the breach of performance of any of
the covenants contained in this Agreement, the Notes or any of the other
Operative Agreements. The Administrative Agent and the Lenders agree that, in
the event any of them pursues any remedies available to them under this
Agreement, the Notes or any other Operative Agreement, neither the
Administrative Agent nor the Lenders shall have any recourse against the
Borrower, in its individual capacity, nor any other Exculpated Person, for any
deficiency, loss or claim for monetary damages or otherwise resulting therefrom
and recourse shall be had solely and exclusively against the Trust Estate and
the Lessee; but nothing contained herein shall be taken to prevent recourse
against or the enforcement of remedies against the Trust Estate in respect of
any and all liabilities, obligations and undertakings contained in this
Agreement, the Notes or any other Operative Agreement. Notwithstanding the
provisions of this Section, nothing in this Agreement, the Participation
Agreement, the Notes, the Security Agreement, the Mortgage Instruments or any
other Operative Agreement shall: (a) constitute a waiver, release or discharge
of any indebtedness or obligation evidenced by the Notes or arising under this
Agreement, the Security Agreement, the Mortgage Instruments or the Participation
Agreement or secured by the Security Agreement, the Mortgage Instruments or any
other Operative Agreement, but the same shall continue until paid or discharged;
(b) relieve the Lessor or any Exculpated Person from liability and
responsibility for (but only to the extent of the damages arising by reason of):
(i) active waste knowingly committed by the Lessor or any Exculpated Person with
respect to the Properties or (ii) any fraud, gross negligence, willful
misconduct or willful breach on the part of the Lessor or any such Exculpated
Person; (c) relieve the Lessor or any Exculpated Person from liability and
responsibility for (but only to the extent of the moneys misappropriated,
misapplied or not turned over) (i) misappropriation or misapplication by the
Lessor (i.e., application in a manner contrary to any Operative Agreement) of
any insurance proceeds or condemnation award paid or delivered to the Lessor by
any Person other than the Agent, (ii) any deposits or any escrows or amounts
owed by the Lessee under the Agency Agreement held by the Lessor or (iii) any
rents or other income received by the Lessor from the Lessee that are not turned
over to the Agent; or (d) affect or in any way limit the Agent's rights and
remedies under any Operative Agreement with respect to the Rents and its rights
and powers thereunder or to obtain a judgment against the Lessor's interest in
the Properties.
40
44
9.19. USURY SAVINGS CLAUSE. Notwithstanding any other provision herein,
the aggregate interest rate charged under any of the Notes, including all
charges or fees in connection therewith deemed in the nature of interest under
applicable law shall not exceed the Highest Lawful Rate (as such term is defined
below). If the rate of interest (determined without regard to the preceding
sentence) under this Agreement or any other Operative Agreement at any time
exceeds the Highest Lawful Rate (as defined below), the outstanding amount of
the Loans made hereunder shall bear interest at the Highest Lawful Rate until
the total amount of interest due hereunder equals the amount of interest which
would have been due hereunder if the stated rates of interest set forth in this
Agreement and the other Operative Agreements had at all times been in effect. In
addition, if when the Loans made hereunder are repaid in full the total interest
due hereunder and under the other Operative Agreements (taking into account the
increase provided for above) is less than the total amount of interest which
would have been due hereunder and thereunder if the stated rates of interest set
forth in this Agreement and in such Operative Agreements had at all times been
in effect, then to the extent permitted by law, the Borrower shall pay to the
Agent an amount equal to the difference between the amount of interest paid and
the amount of interest which would have been paid if the Highest Lawful Rate had
at all times been in effect. Notwithstanding the foregoing, it is the intention
of the Lenders and the Borrower to conform strictly to any applicable usury
laws. Accordingly, if any Lender contracts for, charges, or receives any
consideration which constitutes interest in excess of the Highest Lawful Rate,
then any such excess shall be cancelled automatically and, if previously paid,
shall at such Lender's option be applied to the outstanding amount of the Loans
made hereunder or be refunded to the Borrower. As used in this paragraph, the
term "Highest Lawful Rate" means the maximum lawful interest rate, if any, that
at any time or from time to time may be contracted for, charged, or received
under the laws applicable to such Lender which are presently in effect or, to
the extent allowed by law, under such applicable laws which may hereafter be in
effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.
41
45
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWER:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually
except as expressly stated herein,
but solely as Owner Trustee for
Wackenhut Corrections Trust 1997-1
By:
-------------------------------
Name: Xxx X. Xxxxx
Title: Vice President
SIGNATURE PAGE 1
46
LENDERS:
NATIONSBANK, NATIONAL ASSOCIATION,
as Administrative Agent, and as a
Lender
By:
--------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
SIGNATURE PAGE 2
47
SCOTIABANC INC., as a Lender
By:
-------------------------
Name:
Title:
Address for Notices:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Wire Transfer Instructions:
The Bank of Nova Scotia
0 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA No.: 000000000
Account No.: 0000000
Attention: D. Legista
Re: Wackenhut
SIGNATURE PAGE 3
48
XXXXXXX BANK, N.A., as a Lender
By:
----------------------------
Name:
Title:
Address for Notices:
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Wire Transfer Instructions:
Xxxxxxx Technologies
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
ABA No.: 000000000
Account No.: 0800053949
Attention: Commercial Loan
Operations
SIGNATURE PAGE 4
49
BANQUE PARIBAS, as a Lender
By:
------------------------
Name:
Title:
By:
------------------------
Name:
Title:
Address for Notices:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Wire Transfer Instructions:
Bankers Trust NY
ABA No.: 000-000-000
Account Name: Banque Paribas NY
Account No.: 00-000-000
Attention: Loan Servicing
Re: Wackenhut Corrections
Corporation
SIGNATURE PAGE 5
50
THE SAKURA BANK, LIMITED
ATLANTA AGENCY, as a Lender
By:
------------------------
Name:
Title:
Address for Notices:
000 Xxxxxxxxx Xxxxxx Xxxxxx, XX
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Wire Transfer Instructions:
Xxxxxx Guaranty Trust Co. of
New York
New York, New York
ABA No.: 021 000 238
Account Name: The Sakura Bank,
Ltd., New York
Account No.: 000-00-000
In Favor of: MTKB, Atlanta
A/C 8000100-1
SIGNATURE PAGE 6
51
SUMMIT BANK, as a Lender
By:
---------------------
Name:
Title:
Address for Notices:
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Wire Transfer Instructions:
Summit Bank
00 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx Xxxx, XX 00000
ABA No.: 000000000
Account No.: 47902
Attention: CL02
SIGNATURE PAGE 7
52
SCHEDULE 1.2
SERIES A SERIES B
NAME OF LENDER COMMITMENT COMMITMENT
-------------- ---------- ----------
NationsBank, National
Association $ 15,928,624.51 $ 1,629,063.85
ScotiaBanc, Inc. $ 12,300,371.78 $ 1,257,992.53
Xxxxxxx Bank, N.A. $ 16,000,000.00 $ 1,636,363.70
Banque Paribas $ 6,542,750.93 $ 669,144.98
The Sakura Bank, Limited,
Atlanta Agency $ 9,814,126.39 $ 1,003,717.47
Summit Bank $ 9,814,126.39 $ 1,003,717.47
53
EXHIBIT A
SERIES A NOTE
$ ____________________
-----------------------------------
__________, 199_
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as Owner Trustee for the
Wackenhut Corrections Trust 1997-1 (the "BORROWER"), hereby unconditionally
promises to pay to the order of _________________ __________________ (the
"LENDER") at the office of NationsBank, National Association, as Administrative
Agent, located at Xxxxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000 in lawful money of the United States of America and in immediately
available funds, on the Maturity Date, the principal amount of (a)
________________ DOLLARS ($___________, or, if less, (b) the aggregate unpaid
principal amount of all Series A Loans made by the Lender to the Borrower
pursuant to SECTION 2.1 of the Credit Agreement (as defined below). The Borrower
further agrees to pay interest in like money at such office on the unpaid
principal amount hereof from time to time outstanding at the rates and on the
dates specified in SECTION 2.8 of such Credit Agreement. The Borrower further
agrees to pay all other amounts owing to the Lender pursuant to the Credit
Agreement or any other Credit Document (as defined in the Credit Agreement).
The holder of this Series A Note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof the date, Type and amount
of each Series A Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof and each conversion of all or a portion thereof to another Type. Each
such endorsement shall constitute PRIMA FACIE evidence of the accuracy of the
information endorsed. The failure to make any such endorsement or any error in
such endorsement shall not affect the obligations of the Borrower in respect of
such Loan.
This Series A Note (a) is one of the Series A Notes referred to in the
Credit Agreement dated as of June 19, 1997 (as amended, supplemented, restated
or otherwise modified from time to time, the "CREDIT AGREEMENT"), among the
Borrower, the Lender, the other banks and financial institutions from time to
time parties thereto, and NationsBank, National Association, as Administrative
Agent, (b) is subject to the provisions of the Credit Agreement (including,
without limitation, SECTION 9.18 thereof) and (c) is subject to optional and
mandatory prepayment in whole or in part as provided in the Credit Agreement.
Capitalized terms not otherwise defined herein shall have the respective
meanings assigned in the Credit Agreement. Reference is hereby made to the
Credit Documents for a description of the properties and assets in which a
security interest has been granted, the nature
54
and extent of the security and the guarantees, the terms and conditions upon
which the security interests and each guarantee were granted and the rights of
the holder of this Series A Note in respect thereof.
Upon the occurrence of any Event of Default, all amounts then remaining
unpaid on this Series A Note shall become, or may be declared to be, immediately
due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF FLORIDA WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION, not
individually, but solely as
Owner Trustee for the
Wackenhut Corrections Trust 1997-1
By:
-------------------------------
Name:
Title:
55
EXHIBIT B
SERIES B NOTE
$ ____________________
-----------------------------------
__________, 199_
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as Owner Trustee for the
Wackenhut Corrections Trust 1997-1 (the "BORROWER"), hereby unconditionally
promises to pay to the order of ____________________________________ (the
"LENDER") at the office of NationsBank, National Association, as Administrative
Agent, located at Xxxxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, in lawful money of the United States of America and in immediately
available funds, on the Maturity Date, the principal amount of (a)
_________________________ DOLLARS ($___________), or, if less, (b) the aggregate
unpaid principal amount of all Series B Loans made by the Lender to the Borrower
pursuant to SECTION 2.1 of the Credit Agreement (as defined below). The Borrower
further agrees to pay interest in like money at such office on the unpaid
principal amount hereof from time to time outstanding at the rates and on the
dates specified in SECTION 2.8 of such Credit Agreement. The Borrower further
agrees to pay all other amounts owing to the Lender pursuant to the Credit
Agreement or any other Credit Document (as defined in the Credit Agreement).
The holder of this Series B Note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof the date, Type and amount
of each Series B Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof and each conversion of all or a portion thereof to another Type. Each
such endorsement shall constitute PRIMA FACIE evidence of the accuracy of the
information endorsed. The failure to make any such endorsement or any error in
such endorsement shall not affect the obligations of the Borrower in respect of
such Loan.
This Series B Note (a) is one of the Series B Notes referred to in the
Credit Agreement dated as of June 19, 1997 (as amended, supplemented, restated
or otherwise modified from time to time, the "CREDIT AGREEMENT"), among the
Borrower, the Lender, the other banks and financial institutions from time to
time parties thereto, and NationsBank, National Association, as Administrative
Agent, (b) is subject to the provisions of the Credit Agreement (including,
without limitation, SECTION 9.18 thereof) and (c) is subject to optional and
mandatory prepayment in whole or in part as provided in the Credit Agreement.
Capitalized terms not otherwise defined herein shall have the respective
meanings assigned in the Credit Agreement. Reference is hereby made to the
Credit Documents for a description of the properties and assets in which a
security interest has been granted, the nature
56
and extent of the security and the guarantees, the terms and conditions upon
which the security interests and each guarantee were granted and the rights of
the holder of this Series B Note in respect thereof.
Upon the occurrence of any Event of Default, all amounts then remaining
unpaid on this Series B Note shall become, or may be declared to be, immediately
due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF FLORIDA WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION, not
individually, but solely as
Owner Trustee for the
Wackenhut Corrections Trust 1997-1
By:
-------------------------------
Name:
Title:
57
EXHIBIT C
ASSIGNMENT AND ACCEPTANCE
Reference is made to (a) the Credit Agreement, dated as of June 19,
1997 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), restated among First Security Bank, National Association,
not in its individual capacity, but solely as Owner Trustee (the "OWNER TRUSTEE"
or the "BORROWER"), the Lenders named therein, and NationsBank, National
Association, as Administrative Agent [(b) the Amended and Restated Trust
Agreement dated as of June 19, 1997 (as amended, supplemented, restated or
otherwise modified from time to time, the "Trust Agreement"), among the Holders
party thereto and the Owner Trustee] and (c) the Credit Agreement, dated as of
June 19, 1997 (as amended, supplemented or otherwise modified from time to time,
the "WACKENHUT CORRECTIONS CREDIT AGREEMENT") among Wackenhut Corrections
Corporation, as borrower ("Wackenhut Corrections"), NationsBank, National
Association, as Administrative Agent and the Lenders party thereto. Unless
otherwise defined herein, terms defined in the Credit Agreement [(or if not
defined therein, then the Trust Agreement)] and used herein shall have the
meanings given to them in the Credit Agreement [(or the Trust Agreement, as the
case may be)].
__________________ (the "ASSIGNOR") and __________________
(the "ASSIGNEE") agree as follows:
20. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), an interest (the "ASSIGNED INTEREST") in
and to (A) the Assignor's rights and obligations under the Credit Agreement with
respect to the credit facilities contained in the Credit Agreement as are set
forth on Schedule 1 hereto (collectively, the "ASSIGNED FACILITY"), in the
respective principal amount for the Assigned Facility as set forth on Schedule
1; [(B) the Assignor's rights and obligations as a Holder under the Trust
Agreement, in the respective Holder Advance and Holder Commitment Amounts set
forth on Schedule 1] and (C) the Assignor's rights and obligations under the
Wackenhut Corrections Credit Agreement with respect to certain credit facilities
contained in the Wackenhut Corrections Credit Agreement as are set forth on
Schedule 1 hereto (collectively, the "ASSIGNED WACKENHUT CORRECTIONS FACILITY").
21. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement, [the Trust
Agreement,] any other Operative Agreement, the Wackenhut Corrections Credit
Agreement, or any other Loan Documents (as defined in the Wackenhut Corrections
Credit Agreement, and hereinafter referred to as the "WACKENHUT CORRECTIONS LOAN
DOCUMENTS") or the execution, legality,
58
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, [the Trust Agreement,] any other Operative Agreement, the Wackenhut
Corrections Credit Agreement, or any other Wackenhut Corrections Loan Documents,
or any other instrument or document furnished pursuant thereto, other than that
it has not created any adverse claim upon the interest being assigned by it
hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or Wackenhut Corrections, or
any other obligor or the performance or observance by the Borrower or Wackenhut
Corrections, or any other obligor of any of their respective obligations under
the Credit Agreement, [the Trust Agreement], any other Operative Agreement, the
Wackenhut Corrections Credit Agreement, any other Wackenhut Corrections Loan
Document, or any other instrument or document furnished pursuant hereto or
thereto; (c) attaches the Series A Note and the Series B Note held by it
evidencing the Assigned Facility, [and the Certificate held by it,] and requests
that the Administrative Agent exchange each such Note [and such Certificate] for
a new Note of like Series payable to the Assignee, [and a new Certificate in the
name of Assignee] and (if the Assignor has retained any interest in the Assigned
Facility [and interest as a Holder]) a new Note of such Series payable to the
Assignor in the respective amounts which reflect the assignment being made
hereby (and after giving effect to any other assignments which have become
effective on the Effective Date); and (d) attaches the Revolving Credit Note (as
defined in the Wackenhut Corrections Credit Agreement, and hereinafter referred
to as the "WACKENHUT CORRECTIONS REVOLVING CREDIT NOTE") held by it entering the
Assigned Wackenhut Corrections Facility, and requests that the Administrative
Agent exchanges such Wackenhut Corrections Revolving Credit Note for a new
Wackenhut Corrections Revolving Credit Note payable to the Assignee, and (if the
Assignor has retained any interest in the Assigned Wackenhut Corrections
Facility) a new Wackenhut Corrections Revolving Credit Note payable to the
Assignor in the respective amounts which reflect the assignment being made
hereby (and after giving effect to any other assignments which have become
effective on the Effective Date).
22. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance and that it is an
"Eligible Assignee" (as such term is defined in the Wackenhut Corrections Credit
Agreement); (b) confirms that it has received copies of the Operative
Agreements, the Wackenhut Corrections Loan Documents, and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor, the Administrative Agent
or any other Lender [or Holder] and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Agreement, [the Trust
Agreement,] other Operative Agreements, the
59
Wackenhut Corrections Credit Agreement, other Wackenhut Corrections Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto; (d) appoints and authorizes the Administrative Agent as defined in each
of the Operative Agreements and the Wackenhut Corrections Loan Documents) to
take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement, the other Operative Agreements, the
Wackenhut Corrections Credit Agreement, the other Wackenhut Corrections Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto as are delegated to the respective Administrative Agent by the terms
thereof, together with such powers as are incidental thereto; and (e) agrees
that it will be bound by the provisions of the Participation Agreement, the
Wackenhut Corrections Credit Agreement, [and] the Credit Agreement [and the
Trust Agreement] and will perform in accordance with their terms all the
obligations which by the terms of the Participation Agreement, the Wackenhut
Corrections Credit Agreement, [and] the Credit Agreement [and the Trust
Agreement] are required to be performed by it as a Lender [or a Holder]
including, if it is organized under the laws of a jurisdiction outside the U.S.,
its obligations pursuant to SECTION 2.13(b) of the Participation Agreement,
SECTION 9.8 of the Credit Agreement and SECTION _____ of the Wackenhut
Corrections Credit Agreement.
23. The effective date of this Assignment and Acceptance shall be
__________, 19__ (the "EFFECTIVE DATE"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent for
acceptance and recording by it in the manner provided pursuant to SECTION 9.9 of
the Credit Agreement and SECTION _____ of the Wackenhut Corrections Credit
Agreement, effective as of the Effective Date.
24. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees, [Holder
Fundings, Holder Yield] and other amounts) to the Assignee whether such amounts
have accrued prior to the Effective Date or accrue subsequent to the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
25. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement, the Wackenhut Corrections Credit Agreement [and
the Trust Agreement] and to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender [or a Holder] thereunder
and under the other Operative Agreements and other Wackenhut Corrections Loan
Documents and shall be bound by the provisions thereof and (b) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement, the
Wackenhut Corrections Credit Agreement,[the Trust Agreement] and
60
the other Operative Agreements and other Wackenhut Corrections Loan Documents.
26. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
ASSIGNOR:
[NAME OF ASSIGNOR]
By:
---------------------------------
Name:
Title:
ASSIGNEE:
[NAME OF ASSIGNEE]
By:
----------------------------------
Name:
Title:
Consent to:
WACKENHUT CORRECTIONS CORPORATION
By:
------------------------------
Name:
Title:
NATIONSBANK, NATIONAL ASSOCIATION
By:
------------------------------
Name:
Title:
61
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO (A) THE
CREDIT AGREEMENT,
DATED AS OF JUNE 19, 1997,
AMONG
FIRST SECURITY BANK, NATIONAL ASSOCIATION
NOT INDIVIDUALLY,
BUT SOLELY AS OWNER TRUSTEE,
THE LENDERS NAMED THEREIN,
NATIONSBANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
FOR THE LENDERS,
AND
(B) THE CREDIT AGREEMENT DATED
AS OF JUNE 19, 1997,
AMONG
WACKENHUT CORRECTIONS CORPORATION, AS BORROWER,
NATIONSBANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT,
AND THE LENDERS PARTY THERETO.
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
I. TROL FACILITY
LOAN COMMITMENT
AMOUNTS ASSIGNED
OUTSTANDING LOAN (INCLUDING LOAN COMMITMENT
PRINCIPAL AMOUNTS OUTSTANDING LOAN PERCENTAGE
ASSIGNED PRINCIPAL AMOUNTS) ASSIGNED
----------------- ----------------- ---------------
Series A Series A
$__________ $__________
Series B Series B
$__________ $__________
62
Holder Commitment
Amounts Assigned
(Including
Outstanding Holder Outstanding Holder Commitment
Funding Amounts Holder Funding Percentage
Assigned Amounts) Assigned
-------- -------- --------
$ $ %
------------ ------------- -----
II. REVOLVING CREDIT
FACILITY
----------------
Revolving
Credit
Commitment
Assigned
(including
Outstanding
Revolving Applicable
Outstanding Revolving Credit Loans Commitment
Credit Loans Participations and Percentage
Assigned Assigned Participations) Assigned
-------- -------- --------------- --------
$ $ $ %
------------ ------------- ------------- -----
[Name of Assignor] [Name of Assignee]
By:_______________________________ By:______________________________
Name: Name:
Title: Title:
Address for Notices to Assignee:
_________________________________
_________________________________
_________________________________
Telephone No.: __________________
Telecopy No.: ___________________
63
Wire Transfer Instructions for
Assignee:
ABA #:_____________________________
Account #:_________________________
Reference:_________________________
Attention:_________________________
64
Document Name : XX XXXXXXXXX TROL CREDIT AGREEMENT
DOC NO: 119594.12
XXXXX
Attorney: Xxxxxx Xxxxxxx
Time and Date: June 1, 1997 (10:58am)
