Exhibit 10(s)
CREDIT AND INVESTMENT AGREEMENT
Dated as of July 30, 1997
Among
SCIENTIFIC-ATLANTA, INC.,
WACHOVIA CAPITAL MARKETS, INC.,
WACHOVIA BANK, N.A.,
as Agent, and
THE LENDERS SIGNATORIES HERETO
TABLE OF CONTENTS
ARTICLE I
Defined Terms and Accounting Matters................. 2
Section 1.01 Terms Defined Above......................................... 2
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Section 1.02 Certain Defined Terms....................................... 2
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Section 1.03 Accounting Terms and Determinations......................... 2
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ARTICLE II
Commitments............................. 3
Section 2.01 Loans; LI Fundings.......................................... 3
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Section 2.02 Fundings.................................................... 4
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Section 2.03 Changes of Commitments...................................... 5
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Section 2.04 Fees........................................................ 5
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Section 2.05 Notes....................................................... 6
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Section 2.06 Several Obligations......................................... 6
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Section 2.07 Applicable Funding Offices.................................. 7
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Section 2.09 Extension of Notes and Lessor Investment.................... 7
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Section 2.10 Application of Credit Agreement
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Provisions Prior to Syndication Effective Date.............. 7
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ARTICLE III
Payment of Loans; Payment of Interest and Other Amounts....... 8
Section 3.01 Repayment of the Notes and the Lessor Investment............ 8
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Section 3.02 Prepayments................................................. 9
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Section 3.03 Interest on Notes; LI Yield; Overdue Amounts................ 10
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Section 3.04 Payments by Lessor.......................................... 11
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Section 3.05 Applications of Payments and Proceeds....................... 11
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ARTICLE IV
Payments; Computations; Etc. .................... 13
Section 4.01 Payments.................................................... 13
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Section 4.02 Pro Rata Treatment.......................................... 14
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Section 4.03 Computations................................................ 14
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Section 4.04 Non-receipt of Funds by the Agent........................... 15
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Section 4.05 Sharing of Payments......................................... 15
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Section 4.06 Taxes....................................................... 16
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ARTICLE V
Yield Protection and Illegality................... 18
Section 5.01 Basis for Determining Interest Rate Inadequate or Unfair.... 19
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Section 5.02 Illegality.................................................. 20
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Section 5.03 Increased Cost and Reduced Return........................... 21
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Section 5.04 Base Rate Substituted for Adjusted LIBO Rate................ 23
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Section 5.05 Compensation................................................ 24
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Section 5.06 Payments and Computations................................... 24
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Section 5.06 Transfer to Owner Trust..................................... 24
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ARTICLE VI
Conditions Precedent......................... 25
Section 6.01 Conditions Precedent to Effectiveness of this Agreement..... 25
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Section 6.02 Initial and Subsequent Loans and LI Fundings................ 26
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Section 6.03 Conditions Precedent to Syndication Effective Date.......... 29
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ARTICLE VII
Representations and Warranties.................... 31
Section 7.01 Company Representations and Warranties...................... 31
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Section 7.02 Representations and Warranties of Lessor.................... 38
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ARTICLE VIII
Covenants.............................. 40
Section 8.01 Information................................................. 40
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Section 8.02 Maintenance and Inspection of Property, Books and Records... 41
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Section 8.03 Related Contracts........................................... 42
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Section 8.04 Consolidations, Mergers and Sales of Assets................. 42
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Section 8.05 Maintenance of Existence; Conduct of Business............... 43
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Section 8.06 Dissolution................................................. 43
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Section 8.07 Use of Proceeds............................................. 43
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Section 8.08 Compliance with Laws; Payment of Taxes...................... 44
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Section 8.09 Insurance................................................... 44
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Section 8.10 Maintenance of Property..................................... 45
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Section 8.11 Environmental Notices....................................... 45
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Section 8.12 Environmental Matters....................................... 45
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Section 8.13 Environmental Release....................................... 45
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Section 8.14 Transactions with Affiliates................................ 46
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Section 8.15 Agreement to Pledge, Etc.................................... 46
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Section 8.16 Further Assurances.......................................... 46
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Section 8.17 Use of Proceeds; Etc........................................ 47
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Section 8.18 Maintenance; Etc............................................ 47
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Section 8.19 Encroachments............................................... 47
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Section 8.20 Liens, Etc.................................................. 47
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Section 8.21 Use of Facility............................................. 47
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Section 8.22 Covenants of Lessor......................................... 48
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Section 8.23 Financial Covenants......................................... 48
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Section 8.24 Debt........................................................ 48
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Section 8.25 Investments: Acquisitions................................... 49
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Section 8.26 Dividends and Other Restricted Payments..................... 51
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Section 8.27 Hedging Obligations......................................... 51
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ARTICLE IX
Events of Default........................... 51
Section 9.01 Events of Default........................................... 51
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Section 9.02 Remedies.................................................... 54
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ARTICLE X
The Agent............................... 55
Section 10.01 Appointment, Powers and Immunities.......................... 55
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Section 10.02 Reliance by Agent........................................... 56
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Section 10.03 Defaults.................................................... 56
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Section 10.04 Rights as a Lender.......................................... 57
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Section 10.05 Indemnification............................................. 57
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Section 10.06 Non-Reliance on Agent and other Lenders..................... 57
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Section 10.07 Failure to Act.............................................. 58
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Section 10.08 Resignation or Removal of Agent............................. 58
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ARTICLE XI
Miscellaneous............................. 58
Section 11.01 Amendments, Etc............................................. 58
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Section 11.02 Notices..................................................... 60
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Section 11.03 Payment of Expenses, Indemnities, etc....................... 60
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Section 11.04 No Waiver; Remedies......................................... 66
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Section 11.05 Right of Set-Off............................................ 66
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Section 11.06 Assignments and Participations.............................. 66
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Section 11.07 Invalidity.................................................. 70
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Section 11.08 Entire Agreement............................................ 70
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Section 11.09 References.................................................. 70
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Section 11.10 Successors; Survivals....................................... 71
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Section 11.11 Captions.................................................... 71
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Section 11.12 Counterparts................................................ 71
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Section 11.13 Confidentiality............................................. 71
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Section 11.14 GOVERNING LAW; SUBMISSION TO JURISDICTION................... 72
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Section 11.15 Interest.................................................... 72
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Section 11.16 Characterization............................................ 74
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Section 11.17 Compliance.................................................. 75
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Section 11.18 Facility.................................................... 75
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Section 11.19 The Lessor.................................................. 76
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Section 11.20 Lenders..................................................... 76
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EXHIBITS
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Exhibit A - Legal Description of Site
Exhibit B - Form of Tranche A Note
Exhibit C - Form of Tranche B Note
Exhibit D - Form of Assignment and Acceptance Agreement
Exhibit E - Form of Compliance Certificate
Exhibit F - Form of legal opinion of counsel to the Company
Exhibit G - Form of confidentiality agreement
Exhibit H - Form of Lessor Mortgage
Exhibit I - Form of Guaranty
SCHEDULES
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Schedule 1.02 - Defined Terms
Schedule 1.02(a) - Requirements for Completion
Schedule 1.02(b) - Pricing Schedule
Schedule 7.01(e) - Litigation
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CREDIT AND INVESTMENT AGREEMENT (as the same may be amended,
modified or supplemented from time to time, this "Agreement") dated as of July
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30, 1997 among SCIENTIFIC-ATLANTA, INC., a Georgia corporation (the "Company"),
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WACHOVIA CAPITAL MARKETS, INC., a Georgia corporation (the "Lessor"); each of
the Lenders that is a party hereto or becomes a party hereto as provided in
Section 11.06 (individually, together with its successors and assigns, a
"Lender," and collectively, together with their successors and assigns, the
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"Lenders"); and WACHOVIA BANK, N.A., a national banking association (in its
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individual capacity, "Wachovia"), as agent for the Lenders (in such capacity,
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together with its successors in such capacity, the "Agent").
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RECITALS
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WHEREAS, the Lessor has acquired, as of the date hereof, pursuant to
the Ground Lease, a ground lease of certain real property located in Gwinnett
County, Georgia, described in greater detail on Exhibit A (the "Site"), and
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intends to construct on the Site two (2) buildings to be used for commercial
office space and light assemblage facilities, and a parking deck and related
enhancements and improvements; and
WHEREAS, the Lessor has subleased the Site, and leased such buildings
and other enhancements and improvements thereon, after completion, to the
Company pursuant to the Lease; and
WHEREAS, the Company, acting as the Lessor's Acquisition/Construction
Agent under the Agency Agreement, will, on behalf of the Lessor, complete the
construction and installation of such buildings and all such enhancements and
improvements on the Site and provide operations, maintenance and management
support; and
WHEREAS, (i) in order to finance the acquisition of the Lessor's
leasehold estate in the Site, and the construction of such buildings and related
enhancements and improvements on the Site for the ultimate use and benefit of
the Company in accordance with the Lease prior to the Syndication Effective
Date, the Lessor has agreed to fund its Investment Commitment up to $38,000,000
of the Facility Cost, and the Company and the Lessor have agreed to execute and
deliver this Agreement, and (ii) upon and after the Syndication Effective Date,
the Lessor will retain a Lessor Investment of up to $1,140,000 and the Company
will have obtained from the Lenders certain loans for the benefit of the Lessor
to refinance the excess of such Lessor Investment in an aggregate principal
amount of up to $36,860,000;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
Defined Terms and Accounting Matters
Section 1.01 Terms Defined Above. As used in this Agreement, the
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terms defined in the preamble and recitals above shall have the meanings
indicated above.
Section 1.02 Certain Defined Terms. As used herein, all
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capitalized terms used but not otherwise defined herein shall have the meaning
specified for such terms set forth in Schedule 1.02. As used in this Agreement
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and in any certificate delivered pursuant hereto, "knowledge" and "becomes
aware" or words of similar meaning shall mean, with respect to the Company or
any Subsidiary, that a Principal Officer (i) has knowledge of such matters, or
(ii) from all the facts and circumstances actually known to him at the time in
question he has reason to know such matters exist.
Section 1.03 Accounting Terms and Determinations. Unless
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otherwise specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared,
in accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Company's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Company and its Consolidated Subsidiaries delivered
to the Lessor, the Agent and the Lenders unless with respect to any such change
concurred in by the Company's independent public accountants or required by
GAAP, in determining compliance with any of the provisions of this Agreement or
any of the other Operative Documents: (a) the Company shall have objected to
determining such compliance on such basis at the time of delivery of such
financial statements, or (b) the Required Lenders shall so object in writing
within thirty (30) days after the delivery of such financial statements, in
either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 8.01 hereof,
shall mean the financial statements referred to in Section 7.01(d).
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ARTICLE II
Commitments
Section 2.01 Loans; LI Fundings.
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(a) Loans. Upon and after the Syndication Effective Date, (i)
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each Tranche A Lender severally agrees, on the terms and conditions of this
Agreement, to make Tranche A Loans to the Lessor during the period from and
including the later of (y) the Syndication Effective Date or (z) the date that
such Tranche A Lender becomes a party to this Agreement as provided in Section
11.06(b), up to and including the Completion Date, in an aggregate principal
amount at any one time outstanding up to but not exceeding the amount of such
Tranche A Lender's Loan Percentage Share of the Aggregate Tranche A Loan
Commitments; provided, however, that the aggregate principal amount of all
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Tranche A Loans by all Tranche A Lenders under this Section 2.01(a) at any one
time outstanding shall not exceed the lesser of (y) eighty-five percent (85%) of
the Facility Cost as incurred or invoiced or (z) the Aggregate Tranche A Loan
Commitments. On the Syndication Effective Date, without request by the Company
or the Lessor, Tranche A Loans shall be advanced by the Lenders as Borrowings by
the Lessor hereunder in the amount of 85% of the Facility Cost incurred through
the Syndication Effective Date. Tranche A Loans shall be guaranteed by the
Company pursuant to the Guaranty and secured by the Collateral but shall be
non-recourse as to the Lessor.
(ii) Upon and after the Syndication Effective Date, (i) each
Tranche B Lender severally agrees, on the terms and conditions of this
Agreement, to make Tranche B Loans to the Lessor during the period from and
including the later of (y) the Syndication Effective Date or (z) the date that
such Tranche B Lender becomes a party to this Agreement as provided in Section
11.06(b), up to and including the Completion Date, in an aggregate principal
amount at any one time outstanding up to but not exceeding the amount of such
Tranche B Lender's Loan Percentage Share of the Aggregate Tranche B Loan
Commitments; provided, however, that the aggregate principal amount of all
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Tranche B Loans by all Tranche B Lenders under this Section 2.01(a) at any one
time outstanding shall not exceed the lesser of (y) twelve percent (12%) of the
Facility Cost as incurred or invoiced or (z) the Aggregate Tranche B Loan
Commitments. On the Syndication Effective Date, without request by the Company
or the Lessor, Tranche B Loans shall be advanced by the Lenders as Borrowings by
the Lessor hereunder in the amount of 12% of the Facility Cost incurred through
the Syndication Effective Date. Tranche B Loans shall be guaranteed by the
Company pursuant to the Guaranty and secured by the Collateral but shall be
non-recourse as to the Lessor.
(b) LI Investments. The Lessor agrees, on the terms and
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conditions of this Agreement, to make LI Fundings consisting
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of equity investments in the Facility with respect thereto on the Funding Date,
up to and including the Completion Date, in an aggregate amount equal to the
Lessor Investment Commitment.
(c) Limitations on Loans and Lessor Investments. The aggregate
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amount of all Lessor Investments shall not exceed the Lessor Investment
Commitment and the aggregate amount of all Tranche A Loans and Tranche B Loans
shall not exceed the amount of the Aggregate Tranche A Loan Commitments and
Aggregate Tranche B Loan Commitments, respectively, or the Aggregate Loan
Commitments. Loans repaid may not be reborrowed. Lessor Investments repaid may
not be readvanced. All Loans and Lessor Investments shall be (i) made in such a
manner so as to satisfy the Required Percentage Composition, and (ii) utilized
only for items of Facility Cost, which utilization shall be evidenced or
certified to the Lessor's and each Lender's reasonable satisfaction
simultaneously with and as a condition to each Loan and Lessor Investments as
provided herein.
(d) Capitalized Interest, etc. After the Syndication Effective
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Date but prior to the Completion Date, all interest, commitment fees and other
amounts (other than Accrued Construction Period LI Yield) payable under this
Agreement shall be paid by the Borrowing of Loans and the application of the
proceeds of LI Fundings. The Company, as Acquisition/Construction Agent for the
Lessor, shall give Advance Notice in connection with any Loan made to pay such
amounts or the amount of LI Fundings to be applied thereto. Notwithstanding the
foregoing, the aggregate amount of all Loans and LI Fundings shall not exceed
the Facility Cost.
Section 2.02 Fundings.
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(a) The Company, as Acquisition/Construction Agent for the
Lessor, from time to time as the Company may determine in accordance with this
Agreement and the Agency Agreement, shall give the Agent (which shall promptly
notify the Lenders and the Lessor) Advance Notice (which may be telephonic if
confirmed promptly in writing) of each requested funding of a Loan and/or a
Lessor Investment, which notice shall be irrevocable and effective only upon
receipt by the Agent, and shall specify the aggregate amount and the date of the
Loans and/or Lessor Investments to be funded. The Advance Notice given shall
request Lessor Investments in such amount as is necessary to cause the Required
Percentage Composition to be satisfied on such date. Once given, an Advance
Notice may be revoked only upon payment of any amounts due to the Lenders under
section 5.05. Not later than 1:00 p.m., Atlanta, Georgia time, on the date
specified for each funding hereunder, each Lender shall make available the
amount of the Loan and/or Lessor Investment to be made by it on such date at an
account which the Agent shall specify, in immediately available funds, for the
account of the Lessor. The amounts so received by the Agent shall, subject to
the terms and conditions of this Agreement, be made available to the Company as
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Acquisition/Construction Agent for the Lessor by depositing the same, in
immediately available funds, in an account of the Company designated by the
Lessor and maintained with the Agent at its Principal Office, not later than
4:30 p.m. on the date of requested Borrowing. There shall be no more than two
Borrowings of Loans per calendar month.
(b) All Borrowings shall be made in amounts of at least $500,000
or in integral multiples of $100,000 in excess thereof, or the remaining balance
of the aggregate Commitments, if less.
Section 2.03 Changes of Commitments. The Company, as
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Acquisition/Construction Agent for the Lessor, shall have the right to terminate
or to reduce the amount of, or, prior to utilization thereof, terminate, the
aggregate Commitments, at any time or from time to time upon not less than three
(3) Business Days' prior written notice to the Agent (which shall promptly
notify the Lenders and the Lessor) of each such termination or reduction, which
notice shall specify the effective date thereof and the amount of any such
reduction (which shall not be less than $1,000,000 or any multiple of $500,000
in excess thereof) and shall be irrevocable and effective only upon receipt by
the Agent. Any request for a reduction in the amount of the Commitments shall be
pro rata among the Aggregate Loan Commitments and the Lessor Investment
Commitment so that, at all times 3% of the Commitments will be comprised of the
Lessor Investment Commitment and 97% of the Commitments will be comprised of the
Aggregate Loan Commitments. The Commitments once terminated or reduced may not
be reinstated. In no event shall the aggregate Commitments be reduced below the
aggregate outstanding principal amount of the Loans and Lessor Investments. The
Company may elect to repay, pro rata, the Lessor Investment sufficient to
maintain the Required Percentage Composition and/or to give effect to any
proposed reduction of the Commitments.
Section 2.04 Fees.
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(a) The Company shall pay or cause to be paid to the Lessor and
each Lender a commitment fee (the "Commitment Fee") on the daily average amount
of the unused portion of the Lessor's and such Lender's Commitment, for the
period from and including the later of (i) with respect to the Lessor, the
Closing Date, (ii) with respect to each Lender, the Syndication Effective Date
or (iii) the date such Lender becomes a party to this Agreement as provided in
Section 11.06(b), up to and including the earlier of the date the unused
aggregate Commitments are terminated by the Company, as agent for the Lessor, or
the Completion Date, at a rate per annum equal to the Commitment Fee Rate
determined by reference to the Pricing Schedule. Accrued commitment fees shall
accrue from the Closing Date through the end of the Construction Period, all
such accrued Commitment Fees to be paid by the proceeds of Tranche A Loans and
Tranche B Loans on the First Quarterly Date after the Construction Period and
thereafter be
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payable on each Quarterly Date and on the earlier of the date the Aggregate Loan
Commitments are terminated or the Completion Date.
(b) The Company shall pay, or cause to be paid, (i) prior to the
Syndication Effective Date, from the Company's own funds to the Lessor for the
Lessor's account, and (ii) from the proceeds of Loans or application of Lessor
Investments on and after the Closing Date to the Agent for the Agent's account,
the fees payable to the Agent specified in the engagement letter dated June 6,
1997 between the Agent and the Company. The Company and the Agent hereby agree
that the Lessor shall be a third party beneficiary of the terms of such
engagement letter with respect thereto.
Section 2.05 Notes.
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(a) The Tranche A Loans made by each Tranche A Lender under
Section 2.01(a) shall be evidenced by a single promissory note executed by the
Lessor in substantially the form of Exhibit B (individually a "Tranche A Note"
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and collectively the "Tranche A Notes"), dated as of the date such Tranche A
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Lender becomes a party to this Agreement, payable to the order of such Tranche A
Lender in a principal amount equal to the maximum amount of its Tranche A Loan
Commitment as originally in effect and otherwise duly completed. The date and
amount of each Tranche A Loan made by each Tranche A Lender, and all payments
made on account of the principal thereof, shall be recorded by such Tranche A
Lender on its books and, prior to any transfer of the Tranche A Note, on the
schedules attached to its Tranche A Note or any continuation thereof.
(b) The Tranche B Loans made by each Tranche B Lender under
Section 2.01(a) shall be evidenced by a single promissory note executed by the
Lessor, in substantially the form of Exhibit C (individually a "Tranche B Note"
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and collectively the "Tranche B Notes"), dated as of the date such Tranche B
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Lender becomes a party to this Agreement, payable to the order of such Tranche B
Lender in a principal amount equal to the maximum amount of its Tranche B Loan
Commitment as originally in effect and otherwise duly completed. The date and
amount of each Tranche B Loan made by each Tranche B Lender, and all payments
made on account of the principal thereof, shall be recorded by such Tranche B
Lender on its books and, prior to any transfer of the Tranche B Note, on the
schedules attached to its Tranche B Note or any continuation thereof.
Section 2.06 Several Obligations. The failure of any Lender to
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make any Loan or of the Lessor to make any LI Funding to be made by it on the
date specified therefor shall not relieve any other Lender or the Lessor of its
obligation to make its Loan or LI Funding on such date, but neither any Lender
nor the Lessor shall be responsible for the failure of any other Lender or the
Lessor to make a Loan or LI Funding to be made by such other Lender or the
Lessor.
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Section 2.07 Applicable Funding Offices. The Loans made by each Lender and
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the Lessor Investments made by the Lessor shall be made and maintained at such
Lender's or the Lessor's Applicable Funding Office therefor.
Section 2.08 Acquisition and Construction of Facility, Etc. The Lessor,
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acting solely by and through the Company as its Acquisition/Construction Agent
under the Agency Agreement and subject to the availability of funds under this
Agreement, shall, on the terms and conditions set forth in the Operative
Documents, acquire the Facility as described herein, cause to be constructed the
improvements thereon, and sublease the Facility to the Lessee pursuant to the
Lease. The Company shall enter into and perform its obligations under the Agency
Agreement, the Lease and the other Operative Documents, all in accordance with
the terms thereof.
Section 2.09 Extension of Notes and Lessor Investment. On any day that is
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not less than six (6) months and not more than twelve (12) months prior to the
then current Maturity Date, the Company, as Acquisition/Construction Agent for
the Lessor, may request in writing to the Agent (which shall promptly notify the
Lenders and the Lessor) that the then current Maturity Date be extended (i)
initially for a period up to five (5) years, and (ii) thereafter, for two (2)
additional, individually-elected five (5) year extensions, but in no event shall
any such extension extend beyond the Scheduled Lease Termination Date (as such
date may be extended in accordance with Section 2(b) of the Lease). Any such
extension shall require (i) the unanimous written consent of each Lender and the
Agent, each acting in its sole and absolute discretion, and (ii) the agreement
of the Lessor, acting in its sole and absolute discretion, to extend the term of
the Lease in accordance with Section 2(b) thereof for an equivalent period. In
the event such an extension is requested and the requirements set forth in the
immediately preceding sentence are met, such extension shall be effective upon
the execution of documentation evidencing the same and containing such
additional terms as the Company, the Agent each Lender and the Lessor, each
acting in its sole discretion, may agree. If any Lender, the Agent or the Lessor
shall fail to respond to the Company's written request for extension within
sixty (60) days of receipt, such failure to respond shall be deemed a denial of
such request for extension.
Section 2.10 Application of Credit Agreement Provisions Prior to
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Syndication Effective Date. (a) The Agent, the Company and the Lessor, by
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entering into this Agreement, have agreed that at any time after the Closing
Date, the Agent may, but shall not be obligated to do so, form a syndicate of
lenders acceptable to the Agent, the Lessor and the Company, who may become
Lenders party to this Agreement at such time in order to finance and/or
refinance the acquisition of the Lessor's leasehold estate in the Site, and the
construction of such buildings and related enhancements and improvements on the
Site
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and the Facility for the ultimate use and benefit of the Company in accordance
with the Lease.
(b) Solely for the period from the Closing Date through but not including
the Syndication Effective Date, the Company agrees that all representations,
warranties, covenants, agreements, obligations, duties, and other liabilities of
the Company made for the benefit and in favor of, running to, or owed to the
Agent or any of the Lenders hereunder shall inure to the benefit of the Lessor.
Accordingly, any duplicative reference to the Lessor and any of the Lenders
shall be disregarded during such period. Without limiting the foregoing, prior
to the Syndication Effective Date, (i) all rights, remedies and powers hereunder
of the Agent and the Lenders with respect to the Loans and Commitments shall be
exercisable by the Lessor with respect to the Lessor's Investment Commitment and
LI Fundings, (ii) all consents, approvals, waivers, amendments, or other
agreements which may be requested or required of the Agent or the Lenders
hereunder shall apply to the Lessor and may be effected by the Lessor, (iii) all
payments to the Agent or any of the Lenders hereunder shall be payable to the
order of the Lessor; and (iv) the Lessor shall assume all obligations of the
Agent and the Lenders hereunder.
(c) With respect to certain capitalized terms used herein, the Agent, the
Company and the Lessor hereby agree that prior to the Syndication Effective
Date, notwithstanding anything to contrary set forth herein (i) the Lessor's
Investment Commitment shall equal the lesser of $38,000,000 or the Facility
Cost; and (ii) accordingly, 97% of all LI Fundings made under the Lessor's
Investment Commitment shall be allocated with the same percentages and
priorities as if the same had been made as Tranche A Loans and Tranche B Loans
(including, without limitation, with respect to allocations of payments and
proceeds and for calculating the Purchase Price, Termination Value, and the
Final Rent Payment under the Lease).
ARTICLE III
Payment of Loans; Payment of Interest and Other Amounts
Section 3.01 Repayment of the Notes and the Lessor Investment.
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(a) The Company, as Acquisition/Construction Agent for the
Lessor, will pay or cause to be paid to the Agent for the account of the Agent
and the Lenders and to the Lessor the unpaid principal balance of the Loans, all
accrued interest, LI Yield, (including Accrued Construction Period LI Yield),
fees and other amounts owing under this Agreement, in full on the Maturity Date.
(b) If, on or before the Maturity Date, the Company (or any of
its Affiliates) shall exercise the option to purchase
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the Facility in its entirety, then the purchase price for the Facility shall be
equal to the Purchase Price and the proceeds of such sale, when received by the
Lessor, or the Agent for the account of the Lessor under the Lease, shall be
applied by the Lessor or the Agent, as applicable, in the order specified in
Section 3.05(a). If, on the Maturity Date, no Event of Default, Loss Event, or
Casualty Occurrence (which has not otherwise been repaired or restored as
required by the terms of the Lease) shall have occurred and, with respect to an
Event of Default, be continuing, and the Company (or any of its Affiliates)
shall elect to pay the Final Rent Payment or Completion Costs Payment, as
applicable, and not to purchase the Facility, and shall pay the Final Rent
Payment or the Completion Costs Payment, as applicable, all amounts received by
the Lessor, or the Agent for the amount of the Lessor, pursuant to or in
connection with the Lease, this Agreement or any other Operative Document or as
proceeds of the disposition of the Facility shall be applied by the Lessor or
the Agent, as applicable, to pay the unpaid principal balance of the Loans and
LI Fundings, all accrued interest, LI Yield (including Accrued Construction
Period LI Yield), fees and other amounts owing under this Agreement in the order
specified in Section 3.05(b).
Section 3.02 Prepayments. (a) The Company, as Acquisition/Construction
-----------
Agent for the Lessor, may, upon at least two (2) Business Days' notice to the
Agent which specifies the proposed date and aggregate principal amount of the
Basic Rent to be prepaid, and if such notice is given the Company, as
Acquisition/Construction Agent for the Lessor, shall, as specified in such
notice, prepay Basic Rent in such amount, such prepayment, when received by the
Lessor, or the Agent for the account of the Lessor, shall be applied to prepay,
the outstanding principal amounts of the Loans comprising the same Borrowing in
whole or ratably in part, and/or LI Fundings, together with accrued interest and
LI Yield to the date of such prepayment on the amount prepaid; provided,
--------
however, that (i) each partial prepayment shall be in an aggregate principal
-------
amount not less than $500,000 or an integral multiple of $250,000 in excess
thereof, and (ii) in the event of any such prepayment of any Loan and/or LI
Fundings, on any day other than the last day of the Interest Period for such
Loan and/or LI Fundings, the Company, as agent for the Lessor, shall be
obligated to reimburse the Lenders and shall reimburse the Lessor in respect
thereof pursuant to, and to the extent required by, Section 5.05. Any prepayment
pursuant to this Section 3.02 shall be allocated among the Loans and/or LI
Fundings to achieve or maintain the Required Percentage Composition; or if,
after giving effect to such prepayment, it is not possible to achieve or
maintain such ratio, then such prepayment will be allocated among the Loans
and/or LI Fundings in the manner which most closely approximates, but does not
violate, the Required Percentage Composition. In no event shall any prepayment
be allowed which results in the Required Percentage Composition being violated.
9
(b) On each date on which the Aggregate Loan Commitments and/or the
Lessor's Investment Commitment are reduced pursuant to Section 2.03, the
Company, as Acquisition/Construc- tion Agent for the Lessor, shall repay or
prepay such principal amount of the outstanding Loans (together with interest
accrued thereon and/or LI Fundings (together with LI Yield accrued thereon), as
may be necessary so that after such payment the aggregate unpaid principal
amount of the Loans and LI Fundings does not exceed the aggregate Commitments as
then reduced.
Section 3.03 Interest on Notes; LI Yield; Overdue Amounts.
--------------------------------------------
(a) The Lessor, and the Company, as the Acquisition/Construction Agent for
the Lessor, have requested that interest and LI Yield accruing during the
Construction Period be capitalized, and the Lenders have agreed thereto.
Therefore, all interest and LI Yield accruing on the outstanding principal
amount of the Loans and LI Fundings on each day during the Construction Period
shall be capitalized (i) at the end of each Interest Period ending during the
Construction Period and (ii) on the last day of the Construction Period (LI
Yield accrued during the Construction Period as aforesaid, capitalized based on
quarterly compounding at the implicit LI Yield rate, is "Construction Period LI
Yield", and Construction Period LI Yield, together with yield on Construction
Term LI Yield accruing during the Lease Term, determined as aforesaid, is
collectively, "Accrued Construction Period LI Yield". The Company, as
Acquisition/Construction Agent for the Lessor, will pay or cause to be paid to
the Agent for the account of each Lender interest on the unpaid principal amount
of its Loans for each day during the period commencing on the date of such Loan
to but excluding the date such Loan shall be paid in full, for each Interest
Period relating thereto, at a rate per annum equal to the Adjusted LIBO Rate for
such Loan plus the Applicable Margin for such Loan, but in no event to exceed
the Highest Lawful Rate. The Company will pay or cause to be paid to the Lessor
LI Yield on the unpaid amount of such Lessor Investment for each day during the
period from and including the date of the initial LI Funding comprising such
Lessor Investment to but excluding the date such Lessor Investment shall be
repaid or redeemed in full, for each LI Yield Period relating thereto, at a rate
per annum equal to the Adjusted LIBO Rate for such LI Yield Period plus the
Applicable Margin for such Lessor Investment, but in no event to exceed the
Highest Lawful Rate.
(b) Notwithstanding the foregoing, the Company, as Acquisition/Construction
Agent for the Lessor, shall pay or cause to be paid to the Agent for the account
of each Lender and the Lessor interest at the applicable Default Rate on any
principal of any Loan, interest, Accrued Construction Period LI Yield, LI
Funding, LI Yield, fees or other amounts owing by the Lessor with respect to
Loans and by the Company with respect to LI Fundings under this Agreement or any
other Operative Document which shall
10
not be paid in full when due (whether at stated maturity, by acceleration or
otherwise), for the period commencing on the due date thereof until the same is
paid in full, in each case to the maximum extent permitted by applicable law.
The Company shall pay to the Lessor, or to the Agent for the account of each
Lender, as applicable, interest at the Default Rate on any amounts owing by the
Company under this Agreement or any other Operative Document which shall not be
paid in full when due (whether at stated due date, on acceleration or
otherwise), for the period commencing on the due date thereof until the same is
paid in full, in each case to the maximum extent permitted by applicable law.
(c) Accrued interest on each Loan together with accrued LI Yield (other
than Accrued Construction Period LI Yield) shall be payable on the last day of
each Interest Period, therefor and on the Maturity Date, except as set forth in
paragraph (a) above. Construction Period LI Yield shall be payable on the
Maturity Date. Interest and LI Yield payable at the Default Rate shall be
payable from time to time on demand.
(d) Promptly after the determination of the rate of any interest or LI
Yield provided for herein or any change therein, the Agent shall notify the
Lenders to which such interest is payable, the Lessor and the Company of such
determination or change.
Section 3.04 Payments by Lessor. All moneys received by the Lessor, or by
------------------
the Agent for the account of the Lessor, pursuant hereto or pursuant to the
Lease including, but not limited to, payments of Basic Rent, Interim Special
Rent, Supplemental Rent, the Termination Value or the Final Rent Payment or the
Completion Costs Payment, as applicable, except for amounts allocable to fees
and expenses of the Lessor pursuant to the Operative Documents and amounts
comprising Supplemental Rent payable to third Persons, if any, shall be paid to
the Lessor, the Agent and the Lenders in accordance with, and to pay amounts
owing pursuant to, the terms of this Agreement, including without limitation
Section 4.01 and, if applicable, Section 3.05.
Section 3.05 Applications of Payments and Proceeds.
-------------------------------------
(a) Upon the occurrence of a Cancellation Event, a Termination Event, or a
Non-Completion Event (and the Company elects pursuant to Section 15(a) or (b) of
the Lease to exercise its option to purchase the Facility for the Purchase Price
or elects pursuant to Section 15(b)(ii)(B) of the Lease to pay the Termination
Value), or if the Company otherwise elects to acquire the Facility for the
Purchase Price, the Purchase Price or the Termination Value, as the case may be,
and all other monies received by the Lessor or the Agent pursuant to or in
connection with the Lease, this Agreement or any other Operative Document,
including, without limitation, the proceeds of any insurance or condemnation
awards received as a result of any Casualty
11
Occurrence or Loss Event, shall be applied to prepay the Loans and LI Fundings:
(1) first, to pay or reimburse all Supplemental Rent and other
-----
costs and expenses, including, without limitation, those in connection with
Indemnified Risks, increased costs, or Taxes, then due and owing to the
Agent, the Lessor, the Lenders under the other Operative Documents, pro
rata to each such Person (collectively, the "Other Transaction Expenses");
--------------------------
(2) second, to pay all accrued, unpaid interest and fees on the
------
Notes, pro rata, to the Lenders;
(3) third, to pay the outstanding principal balance of the Tranche A
-----
Loans, pro rata, to the Tranche A Lenders;
(4) fourth, to pay the outstanding principal balance of the Tranche B
------
Loans, pro rata, to the Tranche B Lenders;
(5) fifth, to pay all accrued, unpaid LI Yield, including, without
-----
limitation, all Accrued Construction Period LI Yield, to the Lessor; and
(6) sixth, to pay the unrecovered Lessor Investments to Lessor.
-----
Any monies remaining after payment in full of the foregoing amounts and all
other amounts owing by the Company from time to time under the Operative
Documents shall be paid to the Lessor for distribution to the Company in
accordance with the terms of the Lease.
(b) If (i) a Termination Event or a Non-Completion Event has
occurred, (ii) a Cancellation Event does not exist and (iii) the Company has not
elected to purchase the Facility for the Purchase Price and has paid the Final
Rent Payment or the Completion Costs Payment, as applicable, pursuant to Section
15(a) of the Lease, then the Final Rent Payment or the Completion Costs Payment,
as applicable, shall be applied as follows:
(1) first, to pay or reimburse all Other Transaction Expenses;
-----
(2) second, to pay all accrued, unpaid interest and fees on the
------
Loans, pro rata, to the Lenders;
(3) third, to pay the outstanding principal balance of the Tranche A
-----
Loans, pro rata, to the Tranche A Lenders; and
12
(4) fourth, to pay all accrued, unpaid LI Yield, including, without
------
limitation, all Accrued Construction Period LI Yield, and fees to the
Lessor.
In such circumstances, all other monies received by the Lessor or the Agent
pursuant to or in connection with the Lease, this Agreement or any other
Operative Document or as proceeds of disposition of the Facility shall be
applied as follows:
(1) first, to pay the outstanding principal balance of the Tranche B
-----
Notes, pro rata, to the Tranche B Lenders; and
(3) second, to reimburse the Lessor for Support Expenses incurred by
------
it under the Agency Agreement; and
(4) third, to pay the unrecovered Lessor Investments to the Lessor.
-----
Any monies remaining after payment in full of the foregoing amounts and all
other amounts owing by the Company from time to time under the Operative
Documents shall be paid to the Lessor for distribution to the Company in
accordance with the terms of the Lease.
ARTICLE IV
Payments; Computations; Etc.
Section 4.01 Payments. The Company, as Acquisition/Construction
--------
Agent for the Lessor (or, in the case of the principal amount of the Tranche B
Loans and LI Fundings (in the circumstances described in Section 3.05(b) and if
the Company shall have paid the Final Rent Payment or the Completion Costs
Payment, as applicable), the Lessor), shall make each payment under this
Agreement, the Notes, whether the amount so paid is owing to any or all of the
Lenders or to the Agent, not later than 12:00 noon, Atlanta, Georgia time,
without setoff, counterclaim, or any other deduction whatsoever, on the day when
due in Dollars to the Agent at its address at 000 Xxxxxxxxx Xxxxxx, X. X.,
Xxxxxxx, Xxxxxxx, 00000, Attention: Vice President, Southeast Corporate
Division, Reference: Scientific Atlanta, or at such other location designated by
notice to the Company from the Agent, in same day funds. The Agent will
promptly thereafter cause to be distributed to the Lenders like funds relating
to the payment of principal or interest ratably the Company will pay to the
Lessor the principal amount of LI Fundings on LI Yield (other than amounts
payable pursuant to Section 4.06 or 11.03 or Article V) according to the
respective amounts of such principal, interest or LI Yield then due and owing to
the Lenders or Lessor, respectively, and like funds relating to the payment of
any other amount payable to any Lender to such Lender or to Lessor, in each case
to be applied in
13
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 11.06(d), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
under this Agreement or the Notes in respect of the interest assigned thereby to
the assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves. Any payments and prepayments
received hereunder, other than after the occurrence and during the continuation
of a Loss Event, Casualty Occurrence, Event of Default, Cancellation Event or
Termination Event, shall be applied in accordance with the purpose for which
such payment or prepayment is made. All payments by the Company under any
Operative Document shall be made in the manner specified in this Article IV.
Section 4.02 Pro Rata Treatment. Except to the extent otherwise
------------------
provided herein: (a) each Tranche A Loan and Tranche B Loan from the Lenders
under Section 2.01 shall be made from the Lenders, each payment of commitment
fees with respect to unfunded Tranche A Loan Commitments and Tranche B Loan
Commitments under Section 2.04(a) shall be made to the account of the Lenders,
and each termination or reduction of the Aggregate Loan Commitments under
Section 2.03 shall be applied to the Tranche A Loan Commitment and Tranche B
Loan Commitment of each Lender, pro rata according to the amount of the Lenders'
respective Tranche A Loan Commitments and Tranche B Loan Commitments; (b) each
payment of Tranche A Loans and of Tranche B Loans, respectively, by or for the
account of the Lessor shall be made to the account of the Tranche A Lenders and
Tranche B Lenders, respectively, pro rata in accordance with the respective
unpaid principal amount of the Tranche A Notes and Tranche B Notes held by such
Lenders; and (c) each payment of interest in respect of Tranche A Loans and of
Tranche B Loans, respectively, by or for the account of the Lessor shall be made
to the account of the Tranche A Lenders and Tranche B Lenders, respectively, pro
rata in accordance with the amounts of interest due and payable to the Tranche A
Lenders and Tranche B Lenders, respectively.
Section 4.03 Computations. All computations of interest and LI
------------
Yield shall be made by the Agent, and computations of interest and LI Yield
pursuant to Section 5.01 shall be made by each Lender with respect to its own
Loans and the Lessor with respect to LI Fundings on the basis of a year of 360
days (or, in the case of computations based on the Prime Rate, 365/366 days), in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest or LI Yield is
payable. Whenever any payment hereunder or under the Notes shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time in such case shall be
included in the computation of
14
payment of interest or LI Yield; provided, however, that if such extension would
-------- -------
cause payment of interest or LI Yield on or principal of any Loan or LI Funding
to be made in the next following calendar month, such payment shall be made on
the next preceding Business Day.
Section 4.04 Non-receipt of Funds by the Agent. Unless the Agent
---------------------------------
shall have received notice from the Lessor or the Company, as
Acquisition/Construction Agent for the Lessor, prior to the date on which any
payment is due to the Lenders hereunder that the Company will not make such
payment in full, the Agent may assume that the Lessor or the Company, as
Acquisition/Construction Agent for the Lessor, has made such payment in full to
the Agent on such date and the Agent may, in reliance upon such assumption, but
shall not be obligated to, cause to be distributed to each Lender on such due
date an amount equal to the amount then due such Lender. If and to the extent
the Lessor or the Company, as Acquisition/Construction Agent for the Lessor,
shall not have so made such payment in full to the Agent, each Lender shall
repay to the Agent forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Agent, at a rate equal to (i) until the Business Day after the Business Day on
which such demand is made, the Federal Funds Rate for such day and (ii)
thereafter 50 basis points above the Federal Funds Rate for such day.
Section 4.05 Sharing of Payments. If any Lender shall obtain any
-------------------
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Loans made by it (other than pursuant
to Section 4.06 or 11.03 or Article V) in excess of its ratable share of
payments then due and owing to it in accordance with the payment orders
specified in Section 3.05 or Section 4.02 on account of the Loans obtained by
all the Lenders, such Lender shall forthwith purchase from the other Lenders
participations in such Loans made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them (or, if
necessary, to cause such purchasing Lender to assume the payment priority
specified in Section 3.05), provided, however, that if all or any portion of
-------- -------
such excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and each Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (a) the amount of such Lender's required repayment to (b) the total amount so
recovered from the purchasing Lender) of any interest, or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Company and the Lessor agree that any Lender so purchasing a participation
from another Lender pursuant to this Section may, to the fullest extent
permitted by law, exercise all its rights of payment (including any right of
set-off) with respect to such
15
participation as fully as if such Lender were the direct creditor of Lessor and
the Company in the amount of such participation.
Section 4.06 Taxes.
-----
(a) Any and all payments of principal, Lessor Investment interest, LI
Yield and all other amounts to be paid by the Company, for its own account or as
Acquisition/Construction Agent for the Lessor hereunder or under the Notes or
any other Operative Document to each Indemnified Party shall be made, in
accordance with Section 4.01, without deduction for, and free from, any tax,
imposts, levies, duties, deductions, or withholdings of any nature now or at any
time hereafter imposed by any Governmental Authority or by any taxing authority
thereof or therein excluding in the case of each Lender and the Lessor, taxes
imposed on or measured by the net income of any Lender or the Lessor, and
franchise taxes imposed on such Lender or the Lessor, by the jurisdiction under
the laws of which such Lender or the Lessor is organized or any political
subdivision thereof, and taxes imposed on or measured by such Lender's or the
Lessor's income, and franchise taxes imposed on such Lender or the Lessor, by
the jurisdiction of such Lender's or the Lessor's Applicable Funding Office or
any political subdivision thereof (all such non-excluded taxes, imposts, levies,
duties, deductions or withholdings of any nature being "Taxes"). In the event
-----
that the Company, as Acquisition/Construction Agent for the Lessor or for
itself, is required by applicable law to make any such withholding or deduction
of Taxes with respect to any Loan, Lessor Investment, or other amount, the
Company, as Acquisition/Construction Agent for the Lessor or for itself, shall
pay such deduction or withholding to the applicable taxing authority, shall
promptly furnish to any Lender, the Lessor or other Person in respect of which
such deduction or withholding is made all receipts and other documents
evidencing such payment and shall pay to such Lender or other Person additional
amounts as may be necessary in order that the amount received by such Lender or
other Person after the required deduction or withholding shall equal the amount
such Lender would have received had no such deduction or withholding been made.
If no withholding or deduction of Taxes are payable in respect to any Loan, LI
Funding, interest, LI Yield, or fee relating thereto, or any other amount
payable under any Operative Document, the Company, for its own account or as
Acquisition/Construction Agent for the Lessor, shall furnish to the Agent and
each Lender, at its request, a certificate from each applicable taxing authority
or an opinion of counsel acceptable to the Agent or such Lender, in either case
stating that such payments are exempt from or not subject to withholding or
deduction of Taxes. If the Company, as Acquisition/Construction Agent for the
Lessor, fails to provide such original or certified copy of a receipt evidencing
payment of Taxes or certificate(s) or opinions of counsel as to exemption as
aforesaid, the Company, as Acquisition/Construction Agent for the Lessor, hereby
agrees to compensate the Agent or such Lender, as the case may be, for, and
indemnify them with respect to, the
16
tax consequences of the failure of the Company, as Acquisition/Construction
Agent for the Lessor, to provide evidence of tax payments or tax exemption.
(b) Each Lender that is not chartered and organized under the laws of
the United States of America or a state thereof (each a "Non-U.S. Domestic
-----------------
Lender"), prior to becoming a Lender hereunder, has filed all appropriate forms
------
and taken other appropriate action to obtain a certificate or other appropriate
document from the appropriate governmental authority in the jurisdiction
imposing the relevant taxes, establishing that it is entitled to receive
payments of principal, and interest under or in respect of this Agreement and
the Notes without deduction and free from withholding of any Taxes imposed by
such jurisdiction and has provided a copy of such forms to the Agent, the Lessor
and the Company. Without limiting the foregoing, each Non-U.S. Domestic Lender
agrees to deliver to the Lessor or the Company, as Acquisition/Construction
Agent for the Lessor, promptly upon any reasonable request therefor from time to
time after becoming a Lender hereunder, such additional forms, documents and
other information as may be required by applicable law from time to time to
establish that payment to such Non-U.S. Domestic Lender hereunder or under the
Notes, or the Guaranty are exempt from Taxes. Without limiting the generality
of the foregoing, each Non-U.S. Domestic Lender agrees, on the date of its
execution of this Agreement (or, in the case of an Eligible Assignee, on the
date on which such Eligible Assignee becomes a party to this Agreement), to
deliver in duplicate to the Lessor, or the Company, as Acquisition/Construction
Agent for the Lessor, accurate and duly completed and executed Internal Revenue
Service Form 4224 or 1001 (as applicable), together with Internal Revenue
Service Forms W-8 or W-9, as appropriate, establishing that such Non-U.S.
Domestic Lender is entitled to a complete exemption from all Taxes imposed by
the federal government of the United States by way of withholding, including
without limitation, all backup withholding ("U.S. Withholding Taxes").
----------------------
Thereafter, from time to time (i) upon any change by a Non-U.S. Domestic Lender
of its Applicable Funding Office, (ii) before or promptly after any event occurs
(including, without limitation, the passing of time) requiring a change in or
update of the most recent Form 4224 or 1001 previously delivered by such Lender,
or (iii) upon the reasonable request of the Lessor, or the Company, as
Acquisition/Construction Agent for the Lessor, such Non-U.S. Domestic Lender
shall deliver in duplicate to the Lessor, or the Company, as
Acquisition/Construction Agent for the Lessor, accurate and duly completed and
executed Form 4224 or 1001 (as applicable) (together with Forms W-8 or W-9, as
aforesaid) in replacement of the forms previously delivered by such Non-U.S.
Domestic Lender, establishing that such Non-U.S. Domestic Lender is entitled to
an exemption in whole or in part from all U.S. Withholding Taxes except to the
extent that a change in law has rendered all such forms inapplicable to such
Non-U.S. Domestic Lender.
17
(c) If the Internal Revenue Service or any other taxation authority in
the United States or in any other jurisdiction successfully asserts a claim that
such Non-U.S. Domestic Lender, the Lessor or the Company, as Acquisition/
Construction Agent for the Lessor, did not properly withhold tax from amounts
paid to or for the account of any Non-U.S. Domestic Lender or its participant
(because the appropriate form was not properly executed, or because such Non-
U.S. Domestic Lender failed to notify the Lessor or the Company, as
Acquisition/Con struction Agent for the Lessor, of a change in circumstances
which rendered the exemption from (or reduction in) U.S. Withholding Taxes
ineffective), such Lender shall indemnify the Lessor, or the Company, as
Acquisition/Construction Agent for the Lessor, as applicable, fully for all
amounts paid, directly or indirectly, by the Lessor or the Company, as
Acquisition/Construction Agent for the Lessor, as applicable, as tax or
otherwise, including, without limitation, penalties and interest.
(d) In the event any Lender or the Lessor receives a refund from the
Governmental Authority to which such Taxes were paid of any Taxes paid by the
Company, for itself or as Acquisition/Construction Agent for the Lessor,
pursuant to this Section 4.06, it will pay to the Company, for itself or as
Acquisition/Construction Agent for the Lessor, the amount of such refund
promptly upon receipt thereof; provided, however, if at any time thereafter it
-------- -------
is required to return such refund, the Company, for itself or as
Acquisition/Construction Agent for the Lessor, shall promptly repay to it the
amount of such refund.
(e) Nothing in this Section shall require any Lender or the Lessor to
disclose any information about its tax affairs or interfere with, limit or
abridge the right of any Lender or the Lessor to arrange its tax affairs in any
manner in which it desires.
(f) Without prejudice to the survival of any other agreement of the
Lessor and the Company hereunder, the agreements and obligations of the Lessor,
the Company, and the Lenders contained in this Section 4.06 shall be applicable
with respect to any Lender, Eligible Assignee or other transferee, and any
calculations required by such provisions (i) shall be made based upon the
circumstances of such Lender, Eligible Assignee or other transferee (subject to
Section 11.06(j)), and (ii) constitute a continuing agreement and shall survive
for a period of three (3) years after the termination of this Agreement and the
payment in full or cancellation of the Commitments, and the Notes.
ARTICLE V
Yield Protection and Illegality
18
Section 5.01 Basis for Determining Interest Rate Inadequate or
-------------------------------------------------
Unfair. The Agent shall give prompt notice to the Lessor, the Company and the
------
Lenders of the applicable interest rate or LI Yield determined by the Agent for
purposes of Sections 3.03(a) and (b). If on or prior to the first day of any
Interest Period:
(a) the Agent determines that deposits in Dollars (in the applicable
amounts), are not being offered in the relevant market for such Interest Period
or LI Yield Period, or
(b) the Required Lenders or the Lessor, respectively, determine and
give notice to the Agent that the rates or yield determined on the basis of the
LIBO Rate for any Interest Period for Loans or any LI Yield Period for LI
Fundings will not adequately and fairly reflect the cost to either the Required
Lenders or the Lessor, respectively, of making, funding or maintaining their
respective Loans or LI Fundings for such Interest Period or LI Yield Period, the
Agent shall forthwith so notify the Lessor, the Company and the Lenders,
whereupon,
(i) in the case of such notice from the Required Lenders or the
Lessor, each such Loan or LI Funding will automatically, on the last day of
the then existing Interest Period accrue interest at a rate based upon the
Base Rate plus the Applicable Margin as set forth in the Pricing Schedule.
(ii) the obligation of the Required Lenders or Lessor to make Loans or
LI Fundings at the Adjusted LIBO Rate shall be suspended until the Agent
shall notify the Lessor, the Company and the Lenders that the circumstances
causing such suspension no longer exist, and
(iii) unless the Lessor, or the Company, for itself or as
Acquisition/Construction Agent for the Lessor, notifies the Agent at least
two (2) Business Days before the date of any Borrowing or Lessor Investment
for which Advance Notice has previously been given that it elects not to
effect a Borrowing or Lessor Investment on such date, such Borrowing or
Lessor Investment shall instead be made at a rate of interest, or LI Yield,
as applicable, based upon the Base Rate plus the Applicable Margin as set
forth in the Pricing Schedule. Upon the written request of the Lessor or
the Company, for itself or as Acquisition/Construction Agent for the
Lessor, the Agent shall negotiate with the Lessor or the Company, as
Acquisition/Construction Agent for the Lessor, and the relevant Lenders for
a reasonable period of time, as determined in the Agent's discretion, to
develop a substitute interest rate basis hereunder; provided, however, (x)
--------
the Agent, the Lenders, the Lessor and the Company make no representation,
warranty or covenant that any such agreement will be made, and (y) any
relevant Loans or LI Fundings shall continue to have interest or yield
accrue
19
thereon at the Base Rate during the continuance of any such negotiations
and thereafter should no alternate interest rate be agreed to by the
necessary parties.
Section 5.02 Illegality. If, after the date hereof, the adoption of
----------
any applicable law, rule or regulation, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof (any such agency being referred to as a "Banking
-------
Authority" and any such event being referred to as a "Change of Law"), or
--------- -------------
compliance by any Lender or the Lessor (or their Applicable Funding Office) with
any request or directive (whether or not having the force of law) of any Banking
Authority shall make it unlawful or impossible for any Lender or the Lessor (or
their Applicable Funding Office) to make, maintain or fund its Loans or LI
Fundings and such Lender or the Lessor shall so notify the Agent, the Agent
shall forthwith give notice thereof to the other Lenders and to the Lessor and
the Company, whereupon until such Lender notifies the Agent, the other Lenders,
the Lessor and the Company that the circumstances giving rise to such suspension
no longer exist, the obligation of such Lender to make or maintain Loans based
upon the Adjusted LIBO Rate shall be suspended. Before giving any notice to the
Agent pursuant to this Section, such Lender or the Lessor shall designate a
different Applicable Funding Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Lender or the Lessor,
be otherwise disadvantageous to such Lender or the Lessor. If such Lender or
the Lessor shall determine that it may not lawfully continue to maintain and
fund any of its outstanding Loans to maturity and shall so specify in such
notice, the Lessor or the Company, for itself or as Acquisition/Construction
Agent for the Lessor, shall immediately prepay in full the then outstanding
principal amount of each Loan of such Lender or redeem such LI Funding to the
Lessor, together with accrued interest or LI Yield thereon. Concurrently with
prepaying each such Loan, the Company, as Acquisition/Construction Agent for the
Lessor shall borrow as a Loan, provided that no Default or Event of Default
--------
shall then exist, but without any requirement for the satisfaction of any of the
other conditions precedent set forth herein, in an equal principal amount from
such Lender at a rate based upon the Base Rate plus the Applicable Margin, if
any, as set forth in the Pricing Schedule, and each Lender agrees to make such a
Loan on the foregoing terms. If the Lessor shall determine that it may not
lawfully continue to maintain and fund its Lessor Investment to the end of the
Lease Term based on the Adjusted LIBO Rate and shall so specify in such notice,
the Company shall immediately redeem in full the then outstanding amount of such
Lessor Investment. Concurrently with, and as a condition to, redemption of such
Lessor Investment, the Lessor shall make a new Lessor Investment in the same
amount as the amount so redeemed, without any requirement for the satisfaction
of any of the conditions precedent set forth herein, and LI Yield thereon shall
be
20
computed based upon the Base Rate plus the Applicable Margin, as set forth in
the Pricing Schedule. At any time within ninety (90) days after the giving of a
notice by any Lender pursuant to this Section 5.02, so long as no Event of
Default shall be in existence, the Company, as Acquisition/Construction Agent
for the Lessor, may require by written notice to that Lender that (a) it assign
its pro rata share of the Commitment to another Lender or to a bank or other
financial institution selected by the Company, as Acquisition/Construction Agent
for the Lessor, and reasonably acceptable to the Agent, which is willing to
accept such assignment or (b) it surrender its pro rata share of the Commitment
and terminate its rights and obligations as a Lender hereunder, concurrently
with a reduction by the Company, as Acquisition/Construction Agent of the
Lessor, of the Commitment by an amount equal to the pro rata share of the
Commitment held by that Lender.
Section 5.03 Increased Cost and Reduced Return. (a) If after the
---------------------------------
date hereof, a Change of Law or compliance by any Lender, the Lessor (or their
Applicable Funding Office) with any request or directive (whether or not having
the force of law) of any Banking Authority:
(i) shall subject any Lender, the Lessor (or their Applicable Funding
Office) to any tax, duty or other charge on its Loans, LI Fundings, its
Notes, or its obligation to make Loans or LI Fundings or shall change the
basis of taxation of payments to any Lender, the Lessor (or their
Applicable Funding Office) of the principal amount of or interest on its
Loans, the amount of Lessor Investments or LI Yield thereon, or any other
amounts due under this Agreement or any other Operative Document in respect
of its Loans or LI Fundings (except for changes in the rate of tax on the
overall net income or gross receipts of such Lender, the Lessor, or their
Applicable Funding Office imposed by the jurisdiction in which such
Lender's or Lessor's principal executive office or Applicable Funding
Office is located); or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System
(but excluding any such requirement included in an applicable Euro-Dollar
Reserve Percentage) against assets of, deposits with or for the account of,
or credit extended by, any Lender, the Lessor (or their Applicable Funding
Office); or
(iii) shall impose on any Lender, the Lessor (or their Applicable
Funding Office) or on the United States market or the London interbank
market any other condition affecting its Loans, LI Fundings, Notes, or
obligation to make or maintain Loans or LI Fundings;
21
and the result of any of the foregoing is to increase the cost to such Lender,
the Lessor (or their Applicable Funding Office) of making or maintaining any
Loan, LI Funding or to reduce the amount of any sum received or receivable by
such Lender, the Lessor (or their Applicable Funding Office) under this
Agreement or under its relevant Notes or any other Operative Document with
respect thereto, by an amount deemed by such Lender or the Lessor to be
material, then, within fifteen (15) days after demand by such Lender or the
Lessor (with a copy to the Agent), the Company, for itself and as
Acquisition/Construction Agent for the Lessor, shall pay to such Lender or the
Lessor such additional amount or amounts as will compensate such Lender or the
Lessor for such increased cost or reduction; provided, however, that no such
-------- -------
amount may be claimed by any Lender or Lessor which is attributable to periods
prior to the date which is sixty (60) days preceding the date on which the
officer of the Lender or Lessor having primary responsibility for asset
liability management shall have obtained knowledge of such Change of Law or
request or directive. At any time within ninety (90) days after payment by the
Company, for itself and as Acquisition/Con struction Agent for the Lessor, of
any material amount to any Lender or Lessor pursuant to paragraph (a) or (b) of
this Section, so long as no Event of Default shall be in existence, the Company,
for itself and as Acquisition/Construction Agent for the Lessor, may require by
written notice to that Lender or the Lessor, respectively, that (i) it assign
its pro rata share of the Commitment to another Lender or Lessor or to a bank or
other financial institution selected by the Company, as Acquisition/
Construction Agent for the Lessor, and reasonably acceptable to the Agent which
is willing to accept such assignment or (ii) it surrender its pro rata share of
the Commitment and terminate its rights and obligations as a Lender hereunder,
concurrently with a reduction by the Company, as Acquisition/Construction Agent
of the Lessor, of the Commitment by an amount equal to the pro rata share of the
Commitment held by that Lender or the Lessor.
(b) If any Lender or the Lessor shall have determined that after the
date hereof the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, or any change in the interpretation or
official administration thereof, or compliance by any Lender or the Lessor (or
their Applicable Funding Office) or any Person controlling such Lender or the
Lessor with any request or directive regarding capital adequacy (whether or not
having the force of law) of any Banking Authority, has or would have the effect
of reducing the rate of return on such Lender's or the Lessor's or such
controlling Person's capital as a consequence of its obligations hereunder to a
level below that which such Lender or the Lessor or such controlling Person
could have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such controlling Person's policies with respect
to capital adequacy) by an amount deemed by such Lender or the Lessor or such
controlling Person to be material, then from time to time, within 15 days after
demand by such Lender or the Lessor
22
or such controlling Person, the Company, as Acquisition/Construction Agent for
the Lessor, shall pay to such Lender or the Lessor such additional amount or
amounts as will compensate such Lender or the Lessor or such controlling Person
for such reduction, subject to the proviso at the end of Section 5.03(a).
(c) Each Lender will promptly notify the Lessor, the Company and the
Agent, and the Lessor will promptly notify the Company and the Agent of any
event of which its officer, respectively, having primary responsibility for
asset liability management has knowledge, which occurs or is expected to occur
after the date hereof, which will entitle such Lender or the Lessor to
compensation pursuant to and subject to the limitations contained in this
Section and will designate a different Applicable Funding Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the reasonable judgment of such Lender or the Lessor, be
otherwise materially disadvantageous to such Lender or the Lessor. A
certificate of any Lender or the Lessor claiming compensation under this Section
and setting forth in reasonable detail the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of manifest error. In
determining such amount, such Lender or the Lessor may use any reasonable
averaging and attribution methods. Nothing in this Section shall require any
Lender or the Lessor to disclose any information about its tax affairs or
interfere with, limit or abridge the right of any Lender or the Lessor to
arrange its tax affairs in any manner it desires, subject to Section 11.16(b).
(d) The provisions of this Section 5.03 shall (i) be applicable with
respect to any Lender or the Lessor, assignee or other transferee, and any
calculations required by such provisions shall be made based upon the
circumstances of such Lender or the Lessor, assignee or other transferee and
(ii) constitute a continuing agreement and shall survive for a period of one
year after the termination of this Agreement and the payment or redemption in
full or cancellation of the Notes or the Lessor Investments.
Section 5.04 Base Rate Substituted for Adjusted LIBO Rate. If (i)
--------------------------------------------
the obligation of any Lender to make or maintain Loans or of the Lessor to make
LI Fundings has been suspended pursuant to Section 5.02 or (ii) any Lender or
the Lessor has demanded compensation under Section 5.03, and the Company, as
Acquisition/Construction Agent for the Lessor, shall, by at least five (5)
Business Days' prior notice to the Lessor or to such Lender through the Agent,
have elected that the provisions of this Section shall apply to such Lender or
the Lessor, then, unless and until such Lender or the Lessor notifies the
Company, as Acquisition/Construction Agent for the Lessor, that the
circumstances giving rise to such suspension or demand for compensation no
longer apply:
23
(a) all Loans or LI Fundings that would otherwise be made or
maintained by such Lender or the Lessor based upon the Adjusted LIBO Rate
shall be made or, from the beginning of the next Interest Period be
maintained instead based upon the Base Rate, plus the Applicable Margin (if
any) (in all cases interest, and principal or other amounts payable on such
Loans shall be payable contemporaneously with the related or comparable
amount payable in respect of the other Lenders), and
(b) after each of its Loans or LI Fundings made or maintained based
upon the Adjusted LIBO Rate has been repaid, all payments of principal that
would otherwise be applied to repay such Loans or LI Fundings shall be
applied to repay its Loans or LI Fundings made or maintained based upon the
Base Rate instead.
Section 5.05 Compensation. Upon the request of any Lender
------------
(delivered to the Lessor, the Company and the Agent) or the Lessor (delivered to
the Company and the Agent), the Company, for itself and as
Acquisition/Construction Agent for the Lessor, shall pay to such Lender or the
Lessor such amount or amounts as shall compensate such Lender or the Lessor for
any loss, cost or expense incurred by such Lender or the Lessor as a result of:
(a) any payment or prepayment (pursuant to Section 5.02 or otherwise)
of a Loan or LI Funding on a date other than the last day of the Interest Period
for such Loan or LI Funding; or
(b) any failure by the Company, for itself or as
Acquisition/Construction Agent for the Lessor, to borrow or take down (other
than due to a refusal by the Agent or any of the Lenders to fund under Section
2.02(a) notwithstanding satisfaction of the conditions set forth in Article VI)
a Loan or LI Funding on the date specified therefor in the applicable Advance
Notice delivered pursuant to Section 2.02(a), including any such failure
resulting from the revocation of such Advance Notice.
Section 5.06 Payments and Computations. Each determination by the
-------------------------
Agent (or, in the case of Section 5.01, 5.02, 5.03, 5.04 or 5.05 by each Lender
with respect to its own Loans or Lessor with respect to LI Fundings) of an
interest rate, LI Yield, or an increased cost or increased capital or of
illegality hereunder shall be conclusive and binding for all purposes (absent
manifest error) if made reasonably and in good faith, subject to Section
5.03(c).
Section 5.06 Transfer to Owner Trust. The Company shall have the
-----------------------
option at any time there is no Default or Event of Default in existence and
provided that the transfer described below is permitted by all applicable laws
and regulations, to send written notice to the Lessor and the Agent requesting
that
24
the Lessor transfer all of its right, title and interest in and to the Site and
the Facility, subject to the Lessor Mortgage and the other Operative Documents,
to a "bankruptcy remote" owner trust created for the benefit of the Lessor, the
Agent and the Lenders, as their interests may appear. Within 45 days (or within
a longer period to the extent reasonably required by compliance with any
application or other process required under applicable law or regulation) of
receipt of such notice, the Lessor shall effect such transfer pursuant to
documentation thereof satisfactory to the Agent, the Lenders, the Lessor and the
Company in all respects and at the sole expense of the Company, including,
without limitation, expenses arising from any applicable transfer and intangible
taxes, recording fees, costs to create such owner trust and any other
documentation therefor, including all reasonable attorney fees and expenses of
the Agent and the Lessor incurred in connection therewith. Without limiting the
foregoing, documentation of the transfer described above shall include a
supplement to this Agreement and all other applicable Operative Documents
whereby such owner trust becomes a party hereto and thereto, which shall provide
that such owner trust shall assume all of the obligations of the Lessor
hereunder and thereunder, provided that all payments with respect to fees, LI
Yield, LI Advances and Lessor Investment shall continue to be paid to Wachovia
Capital Markets, Inc.
ARTICLE VI
Conditions Precedent
Section 6.01 Conditions Precedent to Effectiveness of this
---------------------------------------------
Agreement. This Agreement shall become effective when (i) it shall have been
---------
executed by the Lessor, the Company and the Agent, and (ii) the Agent shall have
received the following, each being in form and substance satisfactory to the
Agent (the following being referred to herein as the "Closing Documentation"):
(a) Certificates of Company. Certificates of the Secretary or
-----------------------
Assistant Secretary of the Company setting forth (i) resolutions of its board of
directors authorizing the execution, delivery and performance of the obligations
contained in this Agreement, with respect to the Company, and the other
Operative Documents to which it is a party, with respect to the Company, (ii)
the officers of the Company specified in such Secretary's Certificates that are
authorized to sign this Agreement and the other Operative Documents to which the
Company is a party and, until replaced by another officer or officers duly
authorized for that purpose, to act as its respective representative for the
purposes of signing documents and giving notices and other communications in
connection with this Agreement and the Operative Documents to which it is a
party and (iii) true and correct copies of the articles or certificate of
incorporation and the bylaws of each of the Company. The parties to this
25
Agreement may conclusively rely on such certificate until the Agent (who shall
promptly notify all other parties) receives notice in writing from the Company
to the contrary.
(b) Execution and Delivery of Operative Documents. Each of the other
---------------------------------------------
Operative Documents (other than the Notes, the Guaranty, and the Lessor
Mortgage), duly completed and executed in sufficient number of counterparts for
recording where appropriate.
(c) Other. Such other documents as the Agent or the Lessor may
-----
reasonably request.
Section 6.02 Initial and Subsequent Loans and LI Fundings. The
--------------------------------------------
obligation of the Lenders to make the Initial Loans and each subsequent Loan and
the Lessor to make the initial Lessor Advance and each subsequent Lessor Advance
and to continue each Lessor Advance, all pursuant to this Agreement, is subject
to the following further conditions precedent:
(a) Receipt of Advance Notice. The Agent shall have received Advance
-------------------------
Notice pursuant to a funding request with regard to each Initial Loan and LI
Funding, and thereafter, each Loan and LI Funding, containing the information
required by Section 2.02, which shall be true and correct and shall be duly and
properly executed and completed by the Company as Acquisition/Construction Agent
for the Lessor. Such Advance Notice shall specify the amount of the Loans or LI
Fundings being utilized or applied to acquire work in progress and itemize such
work in progress in reasonable detail.
(b) No Default. The fact that immediately before and after such Loan
----------
and LI Funding, no Default or Event of Default shall have occurred and be
continuing.
(c) Accuracy of Representations, etc. The representations and
---------------------------------
warranties of the Company and the Lessor contained in this Agreement, and the
representations and warranties of the Lessor, the Company contained in any other
Operative Document, are true and correct in all material respects on and as of
the date of such Loan or LI Funding (except for any representations which were
correct on the date of this Agreement but are not correct on the date of any
Loan or LI Funding because of a change permitted by the terms of this Agreement
or any other Operative Document).
(d) Title. The Lessor shall have good and marketable leasehold
-----
interest in the Site pursuant to the Ground Lease and the Lessor shall have good
and marketable title to the Improvements, and the Ground Lease and all of the
Lessor's contract rights under Related Contracts and all other contracts entered
into in connection with the acquisition, renovation, construction, development
and/or installation of the Facility by the Company as Acquisition/Construction
Agent for the Lessor
26
pursuant to the Agency Agreement shall have been pledged to the Agent for the
benefit of the Lenders so that the Agent shall have a first priority, perfected
Lien on all such contract rights; and the Agent shall have received executed
copies of all Related Contracts requested by it.
(e) Receipt of Applicable Permits. All Permits that are or will
-----------------------------
become Applicable Permits shall have been obtained, except Applicable Permits
customarily obtained or which are permitted by Governmental Requirements to be
obtained after the date of the requested Loan or LI Funding (in which case the
Company, having completed all appropriate due diligence in connection therewith,
shall have no reason to believe that such Permits will not be granted in the
usual course of business prior to the date that such Permits are required by
Governmental Requirements). All such obtained Permits shall be in proper form,
in full force and effect and not subject to any appeal or other unsatisfied
contest that may allow modification or revocation thereof.
(f) Casualties. The Facility shall not have suffered (i) a Loss
----------
Event or (ii) a Casualty Occurrence other than a Casualty Occurrence for which a
plan acceptable to the Agent for replacing, or causing to be replaced, the
portions of the Facility that are the subject of such Casualty Occurrence has
been provided to the Lessor.
(g) No Material Adverse Change or Effect. No material adverse change
------------------------------------
shall have occurred in the financial condition of the Company its Subsidiaries
on a consolidated basis since the date of the most recent Fiscal Quarter for
which a financial statement of the Company was delivered to the Agent and the
Lenders and no event, act, condition or occurrence shall exist or have occurred
that has had, or would reasonably be expected to have, a Material Adverse
Effect.
(h) Recordation of Ground Lease, Lease and Easement. A legal
-----------------------------------------------
property description of the Site, suitable for recordation in the land records
and otherwise satisfactory to the Company, the Agent and the Lessor in all
respects, shall have been attached to the Ground Lease and the Lease and the
other Operative Documents, the Company hereby authorizing and directing the
Lessor to so attach such property description upon receipt thereof. Absent the
existence of an Event of Default, such property description may be modified by
the Company during the period from the Closing Date through and including the
Completion Date, and the Lessor (and the Agent, with respect to Exhibit A
hereto) shall agree to and execute any such modifications, provided that the
remaining property so described remains adequate (i) as a legal description
thereof, and (ii) for the use, maintenance, and operation of the Facility. The
Lease and all related financing statements and other requisite filing documents
shall have been duly filed in the appropriate offices and, to the fullest extent
allowed by applicable law, all costs
27
and taxes associated with such filing shall have been paid or provided for by
the Company. An easement in favor of the Lessor, granting the Lessor all
necessary access, ingress and egress to the Facility for its use, maintenance
and operation, shall have been executed and delivered by the Company and duly
filed in the appropriate offices and, to the fullest extent allowed by
applicable law, all costs and taxes associated with such filing shall have been
paid or provided for by the Company.
(i) Insurance Certification. The Agent and the Lessor shall have
-----------------------
received a report by a firm of independent insurance brokers or consultants
chosen by the Company (i) setting forth the insurance obtained, and to be
obtained pursuant to the Lease, with respect to the Facility and the Company's
operations with respect thereto, and (ii) certifying that in the opinion of such
firm, such insurance complies with the requirements of the Lease and, as to
amounts, coverage and provisions, constitutes reasonable and customary coverage
against risks customarily insured against affecting the Facility.
(j) Soil Test Reports. The Agent shall have received the Soil Test
-----------------
Reports.
(k) Environmental Matters. The Agent and the Lessor shall have
---------------------
received an Environmental Assessment on the Site, demonstrating to their
satisfaction that there is no evidence of any hazardous or toxic material or
substance which has been generated, treated, stored, released or disposed of on
the Site, and that there is no evidence of any violation of any Environmental
Requirement and no evidence of any Environmental Damages on or pertaining to the
Facility, except as set forth in a written certificate delivered to and in favor
of the Lessor and the Agent as the same are satisfactory to the Lessor and the
Agent in all respects (the "Environmental Closing Certificate").
(l) Survey. The Agent shall have received the Survey of the Site.
------
(m) Title Insurance. A title insurance company acceptable to the
---------------
Agent and the Lessor in their reasonable discretion shall have issued, or
provided the Agent with evidence satisfactory to the Agent and the Lessor that
such title insurance company is irrevocably obligated to issue immediately after
closing of the acquisition of the Site by the Lessor, an owner's title policy
issued to the Lessor insuring the Lessor as holder of the ground leasehold
estate with respect to the Site and, in the event that the Lease is ever deemed
to be a mortgage, as mortgagee of the Facility under the Lease.
(n) Opinion of Company's Counsel. A favorable opinion or opinions of
----------------------------
Paul, Hastings, Xxxxxxxx & Xxxxxx, special counsel to the Company, in
substantially the form of Exhibit F, and as to this Agreement, the Operative
---------
Documents executed and delivered by
28
the Company on or before such date, and such other matters as the Agent, may
reasonably request.
(p) Taxes, Filings, Recordings. All filings or recordings reasonably
--------------------------
considered necessary or desirable by the Agent or the Lessor have been completed
and all taxes and fees in connection therewith, and all Impositions with respect
to the Facility that are then due and payable, shall have been paid by the
Company.
(q) Certificate of Lessor. A certificate of the Secretary or
---------------------
Assistant Secretary of the Lessor setting forth (i) resolutions of its board of
directors authorizing the execution, delivery and performance of the obligations
contained in this Agreement and the other Operative Documents to which it is a
party, (ii) the officers of the Lessor specified in such Secretary's Certificate
that are authorized to sign this Agreement and the other Operative Documents to
which it is a party and, until replaced by another officer or officers duly
authorized for that purpose, to act as its representative for the purposes of
signing documents and giving notices and other communications in connection with
this Agreement and the Operative Documents and (iii) true and correct copies of
the articles or certificate of incorporation and the bylaws of the Lessor. The
parties to this Agreement may conclusively rely on such certificate until the
Agent (who shall promptly notify all other parties) receives notice in writing
from the Lessor to the contrary.
Each acceptance of a funding hereunder shall be deemed to be a representation
and warranty by the Company on the date of such funding as to the facts
specified in subsections (b), (c), (d), (e), (f), and (g) of this Section 6.02;
provided, however, in no event shall the Company be deemed to make the
representation and warranty contained in this Section 6.02(g) after the
Completion Date.
Notwithstanding any provision of this Agreement or of any of the other
Operative Documents to the contrary, in the event that the conditions set forth
in Sections 6.01 and 6.02 of this Agreement are not satisfied on or before
September 30, 1997, then, in such event, this Agreement and the other Operative
Documents shall be null and void and of no force or effect, except to the extent
that any provisions of this Agreement or the Operative Documents by their
express terms survive termination.
Section 6.03 Conditions Precedent to Syndication Effective Date. The
--------------------------------------------------
term "Syndication Effective Date" shall mean the date on which all of the
following conditions are satisfied:
(a) Counterpart Execution of this Agreement by the Lenders. The
------------------------------------------------------
Agent shall have obtained a syndicate of Lenders who have become a party to this
Agreement pursuant to an executed and delivered counterpart agreement hereof
satisfactory to the
29
Agent in all respects. The composition of such syndicate of Lenders shall be
subject to the prior written consent of the Company, which consent shall not be
unreasonably withheld or delayed.
(b) Delivery of Closing Documentation. Each of the Lenders shall have
---------------------------------
received a complete copy of the Closing Documentation.
(c) Execution of Notes and Guaranty. Each Lender shall have received
-------------------------------
its Notes payable to such Lender and duly completed and executed. The Agent
shall have received the Guaranty in the form attached hereto as Exhibit I duly
executed and completed.
(d) Recordation of Lessor Mortgage. The Lessor Mortgage in the form
------------------------------
attached hereto as Exhibit H and all related financing statements and other
requisite filing documents shall have been duly filed in the appropriate offices
and, to the fullest extent allowed by applicable law, all costs and taxes
associated with such filing shall have been paid or provided for by the Company.
(e) Execution and Delivery of Other Operative Documents. Each of the
---------------------------------------------------
other Operative Documents to be delivered on the Syndication Effective Date,
duly completed and executed in sufficient number of counterparts for recording
where appropriate, and such other documents as the Agent or the Lessor may
reasonably request.
(f) Title Insurance. A title insurance company acceptable to the
---------------
Agent and the Lessor in their reasonable discretion shall have issued, or
provided the Agent with evidence satisfactory to the Agent and the Lessor that
such title insurance company is irrevocably obligated to issue immediately after
closing of the acquisition of the Site by the Lessor, an owner's title policy
issued to the Lessor insuring the Agent as mortgagee under of the Lessor
Mortgage.
(g) Ground Lease Payments. The Lessor shall pay, or cause to be paid
---------------------
or disbursed, to the Company, in immediately available funds, all amounts then
due and payable under the Ground Lease, upon and subject to the receipt of funds
from the Company sufficient to make such payment pursuant to the Lease and the
Company, as agent for the Lessor, shall cause such Ground Lease to be delivered
to the Agent for recording.
All conditions precedent to the obligations of the Lenders to make any Loan are
imposed hereby solely for the benefit of the Lenders, and no other Person may
require satisfaction of any such condition precedent or be entitled to assume
that the Lenders will refuse to make any Loan in the absence of strict
compliance with such conditions precedent.
30
(h) Certificate of Lessor. A certificate of the Secretary or
---------------------
Assistant Secretary of the Lessor setting forth (i) resolutions of its board of
directors authorizing the execution, delivery and performance of the obligations
contained in the Notes, the Lessor Mortgage and the other Operative Documents to
which it is a party, (ii) the officers of the Lessor specified in such
Secretary's Certificate that are authorized to sign the Notes, the Lessor
Mortgage and the other Operative Documents to which it is a party and, until
replaced by another officer or officers duly authorized for that purpose, to act
as its representative for the purposes of signing documents and giving notices
and other communications in connection with the Notes, the Lessor Mortgage and
the Operative Documents and (iii) true and correct copies of the articles or
certificate of incorporation and the bylaws of the Lessor. The parties to this
Agreement may conclusively rely on such certificate until the Agent (who shall
promptly notify all other parties) receives notice in writing from the Lessor to
the contrary.
(i) Certificates of Company. Certificates of the Secretary or
-----------------------
Assistant Secretary of the Company setting forth (i) resolutions of its board of
directors authorizing the execution, delivery and performance of the obligations
contained in the Guaranty and the other Operative Documents to which it is a
party, (ii) the officers of the Company specified in such Secretary's
Certificates that are authorized to sign the Guaranty and the other Operative
Documents to which the Company is a party and, until replaced by another officer
or officers duly authorized for that purpose, to act as its respective
representative for the purposes of signing documents and giving notices and
other communications in connection with the Guaranty and the Operative Documents
to which it is a party and (iii) true and correct copies of the articles or
certificate of incorporation and the bylaws of each of the Company. The parties
to this Agreement may conclusively rely on such certificate until the Agent (who
shall promptly notify all other parties) receives notice in writing from the
Company to the contrary.
ARTICLE VII
Representations and Warranties
Section 7.01 Company Representations and Warranties. The Company
--------------------------------------
represents and warrants to each Person who now is or hereafter becomes a party
to this Agreement that:
(a) Corporate Existence and Power. The Company is a corporation duly
-----------------------------
incorporated, validly existing and in good standing under the laws of the State
of Georgia. The Company is duly qualified to transact business in every
jurisdiction where, by the nature of its business, such qualification is
necessary, except for any failure to comply with the foregoing which does not
have a Material Adverse Effect, and has all corporate powers
31
and all government authorizations, licenses, consents and approvals required to
engage in its business and operations as now conducted, except for any failure
to comply with the foregoing which would not reasonably be expected to have or
cause a Material Adverse Effect.
(b) Corporate and Governmental Authorization; No Contravention. The
----------------------------------------------------------
execution, delivery and performance by the Company of this Agreement and the
other Operative Documents to which it is a party (i) are within its corporate
powers, (ii) have been duly authorized by all necessary corporate action, (iii)
require no action by or respect of or filing with, any governmental body, agency
or official, (iv) do not contravene or constitute a default under, any material
provision of applicable law or regulation or of the certificate of incorporation
or by-laws of the Company or, to the best of the Company's knowledge, any
material agreement relating to Debt, judgment, injunction, order, decree or
other instrument relating to Debt binding upon the Company or any Material
Subsidiary of the Company and (v) do not result in the creation or imposition of
any Lien on any asset of the Company or any Material Subsidiary of the Company
or on the Facility.
(c) Binding Effect. This Agreement and each of the other Operative
--------------
Documents to which the Company is a party constitutes a valid and binding
agreement of the Company, enforceable in accordance with their respective terms,
provided that the enforceability hereof and thereof is subject in each case to
--------
general principles of equity and to bankruptcy, insolvency and similar laws
affecting the enforcement of creditor's rights generally.
(d) Financial Information. (i) The consolidated balance sheet of the
---------------------
Company and its Consolidated Subsidiaries as of June 28, 1996, and the related
consolidated statements of income, stockholders' equity and cash flows for the
Fiscal Year then ended, reported on by Xxxxxx Xxxxxxxx LLP, copies of which have
been delivered to the Agent and the Lessor, and the unaudited consolidated
financial statements of the Company for the interim period ended March 28, 1997
copies of which have been delivered to the Agent and the Lessor, fairly present,
in conformity with GAAP, the consolidated financial position of the Company and
its Consolidated Subsidiaries as of such date and the consolidated results of
operations and cash flows for such Fiscal Year.
(ii) Since March 28, 1997, there has been no event, act, condition or
occurrence having a Material Adverse Effect.
(e) No Litigation. Except as disclosed on Schedule 7.01(e), there is
-------------
no action, suit or proceeding pending, or to the knowledge of the Company,
threatened, against or affecting the Company or any Subsidiary of the Company
before any court or arbitrator or any governmental body, agency or official
which
32
would reasonably be expected to have or cause a Material Adverse Effect or which
in any manner draws into question the validity of or could impair in any
material respect the ability of the Company to perform its obligations under
this Agreement or any of the Operative Documents executed by the Company.
(f) Compliance with ERISA. (i) To the best of the Company's
---------------------
knowledge, the Company and each member of the Controlled Group has fulfilled its
obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code, and has not incurred any
liability to the PBGC or a Plan under Title IV of ERISA, provided, that the
--------
Company makes no representation or warranty under this Section 7.01(f) as to any
Subsidiary for matters pertaining to periods prior to the date on which such
Subsidiary became a Subsidiary except to the extent that the Company received
any such representations and/or warranties from the seller (or any of its
affiliates) of any relevant Subsidiary in connection with the acquisition of any
relevant Subsidiary.
(ii) To the best of the Company's knowledge, neither the Company nor
any member of the Controlled Group is or ever has been obligated to contribute
to any Multiemployer Plan provided, that the Company makes no representation or
--------
warranty under this Section 7.01(f) as to any Subsidiary for matters pertaining
to periods prior to the date on which such Subsidiary became a Subsidiary except
to the extent that the Company received any such representations and/or
warranties from the seller (or any of its affiliates) of any relevant Subsidiary
in connection with the acquisition of any relevant Subsidiary.
(g) Compliance with Laws; Payment of Taxes. The Lessor, the Company
--------------------------------------
and, to the best of the Company's knowledge, each Material Subsidiary, is in
compliance with all applicable laws, regulations and similar requirements of
governmental authorities, except where (i) such compliance is being contested in
good faith through appropriate proceedings or (ii) the failure to be in
compliance would not reasonably be expected to have or cause a Material Adverse
Effect. There have been filed on behalf of the Company and, to the best of the
Company's knowledge, each Material Subsidiary, all Federal, state and material
local income, excise, property and other tax returns which are required to be
filed by them and all taxes due pursuant to such returns or pursuant to any
assessment received by or on behalf the Company, or to the best of the Company's
knowledge, any Material Subsidiary, have been paid or are being contested in
good faith or, if unpaid and uncontested, are in immaterial amounts. The
charges, accruals and reserves on the books of the Company and, to the best of
the Company's knowledge, each Material Subsidiary, in respect of taxes or other
governmental charges are, in the opinion of the Company, adequate. To the best
of the Company's knowledge, United States income tax returns each Subsidiary
which
33
is a U.S. Person have been examined and closed through the Fiscal Year ended
1993.
(h) Investment Company Act. Neither the Company nor any of the
----------------------
Company's Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(i) Public Utility Holding Company Act. Neither the Company nor any
----------------------------------
of the Company's Subsidiaries is a "holding company", or a "subsidiary company"
of a "holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
(j) Ownership of Property; Liens. The Company has title to or
----------------------------
leasehold or other interests in its material properties sufficient for the
conduct of its business, and none of such property is subject to any Lien except
Permitted Liens.
(k) No Default. Neither the Company nor any of the Company's
----------
Subsidiaries is in default under or with respect to any agreement, instrument or
undertaking to which it is a party or by which it or any of its property is
bound which could have or cause a Material Adverse Effect. No Default or Event
of Default has occurred and is continuing.
(l) Full Disclosure. To the best of the Company's knowledge, all
---------------
written information heretofore furnished by the Lessor, the Company, for itself
and as Acquisition/Construction Agent for the Lessor, to the Agent or any Lender
for purposes of or in connection with this Agreement, any of the Operative
Documents, or any transaction contemplated hereby or thereby is, and all such
information hereafter furnished by the Lessor, or the Company, for itself and as
Acquisition/Construction Agent for the Lessor, to the Agent or any Lender will
be, true, accurate and complete in every material respect or based on reasonable
estimates on the date as of which such information is stated or certified.
(m) Environmental Matters.
---------------------
(i) To the best of the Company's knowledge (without, as to Properties
not located in the United States of America, having performed any further
independent inquiry therefor solely in connection with this Agreement),
neither the Company nor any Subsidiary of the Company is aware that it is
subject to any Environmental Liability which could have or cause a Material
Adverse Effect, neither the Company nor any Subsidiary of the Company
(except in respect of immaterial Environmental Liabilities in de minimis
-- -------
amounts) has received notice that it has been designated as a potentially
responsible party under CERCLA or under any state statute similar to
CERCLA, and neither the Facility,
34
nor any of the Properties located in the United States and owned by the
Company or any Subsidiary of the Company, has been identified on any
current or proposed (i) National Priorities List under 40 C.F.R. (S) 300,
(ii) CERCLIS list or (iii) any list arising from a state statute similar to
CERCLA.
(ii) To the best of the Company's knowledge (without having performed
with respect to Properties other than the Facility any further independent
inquiry solely in connection with this Agreement), no Hazardous Materials
have been or are being used, produced, manufactured, processed, treated,
recycled, generated, stored, disposed of, managed or otherwise handled at,
or shipped or transported to or from the Facility or from any of the
Properties owned by the Company or any Subsidiary of the Company or are
otherwise present at, on, in or under the Facility or any of the Properties
owned by the Company or any Subsidiary of the Company, or, to the best of
the knowledge of the Company, at or from any adjacent site or facility,
except for Hazardous Materials, such as cleaning solvents, pesticides and
other materials used, produced, manufactured, processed, treated, recycled,
generated, stored, disposed of, managed, or otherwise handled in minimal
amounts in the ordinary course of business in compliance with all
applicable Environmental Requirements.
(iii) The Company represents for itself, the Lessor, and each
Subsidiary of the Company, that the Company, the Lessor, and each of the
Company's Subsidiaries (A) has procured all Environmental Authorizations
necessary for the conduct of its business and (B) is in compliance with all
Environmental Requirements in connection with the operation of its
Properties and businesses, in each case set forth in clause (A) or (B)
where the failure to procure or non-compliance with which would reasonably
be expected to have or cause a Material Adverse Effect.
(iv) Except to the extent specified on the Environmental Closing
Certificate, to the best of the Company's knowledge: (a) there are no
Hazardous Materials on the Facility, other than minimal amounts of cleaning
solvents, pesticides and other similar materials used, produced,
manufactured, processed, treated, recycled, generated, stored, disposed,
managed, or otherwise handled in the ordinary course of business or in
management or maintenance of the Facility, (b) no Hazardous Material has
migrated from the Facility to, upon, about or beneath other properties, (c)
no Hazardous Material has migrated or threatened to migrate from other
properties to, upon, about or beneath the Facility, and (d) all Hazardous
Materials or solid wastes generated at the Facility have at all times been
transported, treated and disposed of in compliance with Environmental
Requirements.
35
(v) Except to the extent specified on the Environmental Closing
Certificate, to the best of the Company's knowledge: (a) there is not, nor
has there been, constructed, placed, deposited, stored, disposed of or
located on the Facility any asbestos in any form, (b) no underground
improvements, including treatment or storage tanks, pumps, or water xxxxx,
are or have been located on the Facility, (c) there are no polychlorinated
biphenyls (PCBs) or transformers, capacitors, ballasts, machinery, fixtures
or other equipment which contain PCBs constructed, placed, deposited,
stored, disposed of or located on the Facility, (d) the uses and activities
of, on or relating to the Facility have at all times complied in all
material respects with all Environmental Requirements, and the use which
the Company, and its Affiliates and/or Subsidiaries make of the Facility
will not result in the disposal or other Environmental Release of any
Hazardous Material, (e) the Company has obtained all permits necessary
under applicable Environmental Requirements, and (f) the Facility has not
been, and is not now, listed on CERCLIS, the Environmental Protection
Agency's list of violating facilities established pursuant to the Clean
Water Act or the National Priorities List established pursuant to CERCLA.
(vi) Except to the extent specified on the Environmental Closing
Certificate, (a) there exists no judgment, decree, order, writ or
injunction outstanding, or litigation, action, suit, claim (including
citation or directive) or proceeding pending or, to the knowledge of the
Company or any of its Affiliates and/or Subsidiaries, threatened, relating
to the ownership, use, maintenance or operation of the Facility by any
person or entity, or arising from any alleged violation of Environmental
Requirements, or any alleged liability for Environmental Damages, (b) to
the knowledge of the Company or any of its Affiliates and/or Subsidiaries,
there are no existing facts or conditions that could give rise to any such
violation or liabilities, (c) there have been no written or, to the
knowledge of the Company or any of its Affiliates and/or Subsidiaries, oral
reports of environmental investigations, audits, studies, tests, reviews or
other analyses conducted by or which have been presented to or are in the
possession of the Company or any of its Affiliates and/or Subsidiaries,
relating to the Facility, which have not been delivered to the Lessor, the
Lenders, and the Agent and (d) neither the Company nor, to the knowledge of
the Company or any of its Affiliates and/or Subsidiaries, any other person
or entity has received any notice or other communication concerning any
alleged violation of Environmental Requirements, whether or not corrected
to the satisfaction of the appropriate authority, or any notice or other
communication concerning alleged liability for Environmental Damages in
connection with the Facility.
36
(vii) From the date hereof, there shall be no actual or threatened
Environmental Release of a Hazardous Material on or from the Facility
caused by the Company or any of its Affiliates and/or Subsidiaries.
(viii) Except to the extent specified on the Environmental Closing
Certificate, the Company: (a) has obtained all permits, licenses, and other
authorizations which are required under Environmental Requirements in
association with the Facility; and (b) will in full compliance with all
terms and conditions of such required permits, licenses, and other
authorizations associated with the Facility.
(ix) No permits or licenses are required to be obtained or
maintained in connection with the use, operation, or ownership of the
Facility arising from any portion of the Facility which constitute (i)
"wetlands" under any Environmental Requirement, or (ii) habitat for species
which is deemed to be endangered under any Environmental Requirement, nor
are there any ongoing or continuing obligations regarding any portion of
the Facility which constitute wetlands. There are no species of plants or
animals located on any portion of the Facility which are classified as
threatened or endangered under any Environmental Requirement. There have
been no written or, to the knowledge of the Company or any of its
Affiliates and/or Subsidiaries, oral wetlands delineations conducted by or
which have been presented to or are in the possession of the Company or any
of its Affiliates and/or Subsidiaries relating to the Facility which have
not been delivered to the Lessor, the Lenders and the Agent.
(n) Capital Stock. All Capital Stock, debentures, bonds, notes and
-------------
all other securities of the Company presently issued and outstanding are validly
and properly issued in accordance with all applicable laws in all material
respects, including but not limited to, the "Blue Sky" laws of all applicable
states and the federal securities laws.
(o) Use of Proceeds; Margin Stock. The proceeds of the Loans and
-----------------------------
LI Fundings are being used to finance or refinance the Facility Cost with
respect to the Facility, including the enhancements and improvements to be made
thereto and the design, renovation, construction and installation thereof.
Neither the Lessor nor the Company is engaged principally, or as one of its
important activities, in the business of purchasing or carrying any Margin
Stock, and no part of the proceeds of any Loan or LI Funding will be used to
purchase or carry any Margin Stock or to extend credit to others for the purpose
of purchasing or carrying any Margin Stock, or be used for any purpose which
violates, or which is inconsistent with, the provisions of Regulations G, T, U
or X.
37
(p) Insolvency. After giving effect to the execution and delivery of
----------
the Guaranty and the Lease, the Company will not be "insolvent," within the
meaning of such term as used in O.C.G.A. (S) 18-2-22, defined in (S) 101 of
Title 11 of the United States Code or Section 2 of the Uniform Fraudulent
Transfer Act, or any other applicable state law pertaining to fraudulent
transfers, as amended from time to time, or be unable to pay its debts generally
as such debts become due, or have an unreasonably small capital to engage in any
business or transaction, whether current or contemplated.
Section 7.02 Representations and Warranties of Lessor. Lessor
----------------------------------------
represents and warrants to the Agent, the Company and the Lenders that:
(a) Existence. The Lessor is a corporation duly organized, validly
---------
existing and in good standing under the laws of the State of Georgia.
(b) Litigation. There is no action, suit or proceeding pending, or
----------
to the knowledge of the Lessor, threatened, against or affecting the Lessor
before any court or arbitrator or any governmental body, agency or official
which contests the validity or enforceability of the Operative Documents or
which in any manner draws into question the validity of or could impair in any
material respect the ability of the Lessor to perform its obligations under this
Agreement or any of the Operative Documents executed by it.
(c) No Breach. The execution and delivery of this Agreement, the
---------
Notes, and the other Operative Documents, the transactions herein and therein
contemplated and compliance with the terms and provisions hereof and thereof
will not conflict with, or result in a breach of, or require any consent of any
Person not already obtained, under the charter or bylaws of the Lessor or any
Governmental Requirement of the State of the Lessor or its state of
incorporation or the United States of America governing its banking and trust
powers, or any agreement or instrument to which the Lessor is a party or by
which it is bound or to which it is subject, or constitute a default under any
such agreement or instrument, or result in the creation or imposition of any
Lien (except under the Operative Documents and other Permitted Liens) upon any
of the revenues or Properties of the Lessor, including the Facility, pursuant to
the terms of any such agreement or instrument.
(d) Action. The Lessor has all necessary corporate power and
------
authority to execute, deliver and perform its obligations under this Agreement,
the Notes, the other Operative Documents to which it is a party; and the
execution, delivery and performance by it of this Agreement, the Notes, the
other Operative Documents to which it is a party have been duly authorized by
all necessary corporate action on its part; and this Agreement, the Notes, and
the other Operative Documents
38
constitute the legal, valid and binding obligations of the Lessor, enforceable
against it in accordance with their terms, except as may be limited by any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally or by general principles of equity.
(e) Approvals. No authorizations, approvals or consents of, and no
---------
filings or registrations with, the United States of America or any other
governmental authority governing its banking and trust powers are necessary for
the execution, delivery or performance by the Lessor of this Agreement, the
Notes, the other Operative Documents to which it is a party, or for the validity
or enforceability thereof.
(f) Ownership of Facility. As of the Initial Funding Date, the
---------------------
Lessor owns a leasehold interest in the Site pursuant to the Ground Lease, free
and clear of all Liens except Permitted Liens and the interest of the Company
under the Lease. None of the Permitted Liens will interfere with the use or
possession of the Facility or the use of or exercise by the Lessor of its rights
under any Operative Document or with respect to the Facility, except to the
extent such interference would not be reasonably expected to have a Material
Adverse Effect.
ARTICLE VIII
Covenants
The Company covenants and agrees with the Agent, the Lessor, and each
Lender to comply with the following covenants until either (i) the Facility has
been purchased by the Company (or one of its Affiliates) for the Purchase Price
(ii) the Lease has been terminated, the Facility has been returned to the Lessor
and the Termination Value or the Final Rent Payment, as the case may be, and all
other amounts payable under the Lease and the other Operative Documents upon
such occurrence have been paid in full, and the Lessor, with respect to itself,
covenants and agrees with the Agent and each Lender to comply with the following
covenants, as applicable to the Lessor, until all amounts payable under this
Agreement have been paid in full:
Section 8.01 Information. The Company will deliver to the Agent and
-----------
each of the Lenders:
(a) as soon as available and in any event within 90 days after the
end of each Fiscal Year, a consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such Fiscal Year and the related
consolidated statements of income, stockholders' equity and cash flows for such
Fiscal Year, setting forth in each case in comparative form the figures for the
previous fiscal year, all certified by Xxxxxx Xxxxxxxx LLP or other independent
public accountants of nationally recognized standing, with such certification to
be free of
39
material exceptions and qualifications not reasonably acceptable to the Agent
and the Lenders, except as permitted by Section 1.03;
(b) as soon as available and in any event within 45 days after the end
of each of the first three (3) Fiscal Quarters of each Fiscal Year, a
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
of the end of such Fiscal Quarter and the related statement of income and
statement of cash flows for such Fiscal Quarter and for the portion of the
Fiscal Year ended at the end of such Fiscal Quarter, setting forth in each case
in comparative form the figures for the corresponding Fiscal Quarter (Fiscal
Year only in the case of balance sheets) and the corresponding portion of the
previous Fiscal Year, all certified (subject to the absence of footnotes and to
normal year-end audit adjustments) as to fairness of presentation, GAAP and
consistency by the chief financial officer or the chief accounting officer of
the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (i) and (ii) above, a certificate,
substantially in the form attached hereto as Exhibit E, executed by the
Company's treasurer or chief financial officer (A) setting forth in reasonable
detail the calculations required to establish whether or not the Company, and
when appropriate its Consolidated Subsidiaries, were in compliance with the
covenants contained in Sections 8.04, 8.23, 8.24, 8.25 and 8.26 as of the end of
the applicable fiscal quarter or Fiscal Year; (B) the Leverage Ratio for the
Four-Quarter Period ending as of the date of such financial statements and the
calculations of such ratio in reasonable detail; and (C) stating that no Default
or Event of Default has occurred and is continuing, or, if such is not the case,
specifying such Default or Event of Default and its nature, when it occurred and
the steps being taken or proposed to be taken by the Company with respect to
these (a "Compliance Certificate"), of the chief financial officer or the chief
----------------------
accounting officer of the Company (a) setting forth in reasonable detail the
calculations required to establish whether the Company was in compliance with
the requirements of Sections 8.04, 8.23 through 8.26, inclusive on the date of
such financial statements and (b) stating whether any Default exists on the date
of such certificate and, if any Default then exists, setting forth the details
thereof and the action which the Company is taking or proposes to take with
respect thereto;
(d) promptly, and, in any event, within 15 Domestic Business Days
after the Company, in its individual capacity or as Acquisition/Construction
Agent for the Lessor becomes aware of any Default or Event of Default, a
certificate of a senior financial or accounting officer or the chief financial
officer or the chief accounting officer or the Treasurer of the Lessor or the
Company setting forth the details thereof and the action which the Company, for
itself or as Acquisition/Construction
40
Agent for the Lessor is taking or proposes to take with respect thereto;
(e) promptly upon becoming aware of the occurrence of either a Loss
Event or a Casualty Occurrence, or any other event or condition requiring notice
under either Section 7 or Section 8 of the Lease, the Company shall give the
Agent and each Lender written notice thereof, which notice shall specify the
damage or loss to the Facility in reasonable detail; and
(f) from time to time such additional information regarding the
financial position or business of the Lessor, the Company and the Subsidiaries
of the Company as the Agent, at the request of any Lender, may reasonably
request.
Section 8.02 Maintenance and Inspection of Property, Books and
-------------------------------------------------
Records. The Lessor will keep proper books of record and account. The Company
-------
will keep books of record and account regarding the Lease and shall maintain, on
a current basis, books of proper record and account in conformity with GAAP,
consistently applied (to the extent applicable), which books shall include
copies of all Related Contracts and any amendments thereto and the book value of
the Facility and of each material item of Property comprising or included in the
Facility, and shall provide copies of the foregoing to the Lessor, the Agent and
the Lenders from time to time on request at the Company's expense. The Company
will (i) keep proper books of record and account in which full, true and correct
entries in conformity with GAAP shall be made of all dealings and transactions
in relation to its business and activities; and (ii) permit representatives of
any Lender (x) at such Lender's expense and upon reasonable notice prior to the
occurrence of a Default which remains uncured and (y) at the Company's expense
after the occurrence of a Default, to visit and inspect the Facility and any of
its properties, to examine and make abstracts from any of its books and records
and to discuss its affairs, finances and accounts with its officers, employees
and independent public accountants. The Company agrees to cooperate and assist
in such visits and inspections, in each case at such reasonable times and as
often as may reasonably be desired, subject, however, to the execution by any
Lender so reviewing or inspecting the books or records of account or so visiting
and inspecting the Facility, of a confidentiality agreement in the form of
Exhibit G attached hereto.
Section 8.03 Related Contracts. The Company, as agent for the
-----------------
Lessor, will comply with, maintain execution counterparts of, and promptly upon
request by the Agent from time to time deliver copies of, or after the
occurrence of an Event of Default, originals of, all Related Contracts.
41
Section 8.04 Consolidations, Mergers and Sales of Assets. The
-------------------------------------------
Company will not consolidate with or merge into, or sell, lease or otherwise
transfer all or any substantial part of its assets to, any other Person,
provided that: (i) Subsidiaries of the Company may merge or consolidate with the
--------
Company and with other Subsidiaries of the Company; (ii) a Subsidiary may sell,
transfer or dispose of its assets to the Company or another Subsidiary of the
Company; (iii) the Company and its Subsidiaries may sell inventory in the
ordinary course of business; (iv) the Company may sell its accounts receivable
on a non-recourse basis in an aggregate amount not to exceed $100,000,000 at any
time; (v) the Company and its Subsidiaries may, during any Fiscal Year, sell,
transfer or otherwise dispose of assets (excluding the capital stock of any
Subsidiary) having an aggregate book value in an amount not to exceed 10% of the
total book value of the assets of the Company and its Subsidiaries taken as a
whole; (vi) the Company or any Subsidiary may merge or consolidate with any
other corporation, provided that (A) the Company or such Subsidiary shall be the
continuing or surviving corporation or the surviving corporation becomes thereby
a wholly-owned Subsidiary and (B) if instead of the Company or such Subsidiary
merging or consolidating with such corporation, the Company were to acquire all
of the issued and outstanding capital stock of such corporation, such
acquisition would be permitted under Section 8.25; (vii) the Company and its
Subsidiaries may, during any Fiscal Year, enter into sale and leaseback
transactions covering fixed or capital property which collectively cover
property having an aggregate fair market value, as determined for each item of
property at the time such property became the subject of such a transaction, not
in excess of 10% of the total book value of the assets of the Company and its
Subsidiaries taken as a whole; (viii) the Company may re-incorporate as a
Delaware corporation so long as the re-incorporation does not result in or
effect any change in the ownership of the Company; and (ix) so long as all
Merger Conditions are satisfied, the Company may merge with or consolidate into
any Non-Hostile Successor, with such Non-Hostile Successor being the surviving
corporation; and in each case identified in the immediately preceding clauses
(i) through and including (ix), immediately prior to such merger or
consolidation and immediately after such merger or consolidation and after
giving effect thereto, no Default or Event of Default is or would be in
existence.
Section 8.05 Maintenance of Existence; Conduct of Business. The
---------------------------------------------
Company shall (a) preserve and maintain, and cause each Subsidiary to preserve
and maintain its respective existence (except as otherwise permitted under
Section 8.04, rights, franchises, licenses and privileges in the jurisdiction of
its formation and qualify and remain qualified and authorized to do business in
each jurisdiction in which the character of its properties or the nature of its
business requires such qualification and authorization and where the failure to
be so authorized and qualified could have a Material Adverse Effect; and (b) at
all times, carry on, and cause its Subsidiaries to
42
carry on, its respective businesses in the same fields and areas as engaged in
on the Closing Date and not enter, and prohibit its Subsidiaries from entering,
into any field or area of business not otherwise engaged in as of the Closing
Date or any other field or area of business related thereto and carry on the
major part of its business in substantially the same manner and in substantially
the same fields as such business is now carried on and maintained, except as
permitted by Section 8.04.
Section 8.06 Dissolution. The Company shall not (a) liquidate,
-----------
wind-up or dissolve itself (or suffer any liquidation or dissolution or permit
any Subsidiary to do any of the foregoing, except with respect to Subsidiaries
which are not Material Subsidiaries), or (b) except as expressly permitted by
Section 8.04 hereof, convey, sell, lease, sublease, transfer or otherwise
dispose of, in one transaction or a series of transactions, all or any part of
its business or assets, including capital stock of or other equity interests in
any of its Subsidiaries, whether now owned or hereafter acquired, or permit any
Subsidiary to do any of the foregoing.
Section 8.07 Use of Proceeds. The proceeds of the Loans and LI
---------------
Fundings will be used to fund the Facility Cost. Without limiting the
generality of the foregoing, no portion of the proceeds of the Loans and LI
Fundings will be used by the Lessor or the Company as Acquisition/Construction
Agent for the Lessor, (i) in connection with, whether directly or indirectly,
any tender offer for, or other acquisition of, stock of any corporation with a
view towards obtaining control of such other corporation, except in a
negotiated, consensual transaction (ii) to purchase or carry, or to reduce or
refinance any credit incurred to purchase or carry, any margin stock (within the
meaning of Regulation U and Regulation X) or to extend credit to others for the
purpose of purchasing or carrying any such margin stock, or (iii) for any
purpose in violation of any applicable Governmental Requirement.
Section 8.08 Compliance with Laws; Payment of Taxes. The Company
--------------------------------------
will comply in all material respects with applicable laws (including but not
limited to ERISA), regulations and similar requirements of governmental
authorities (including but not limited to PBGC), except where the necessity of
such compliance is being contested in good faith through appropriate proceedings
(as permitted in Section 13 of the Lease) or where the failure to comply would
not reasonably be expected to have or cause a Material Adverse Effect. The
Company will pay, prior to the date on which penalties attach thereto, all
taxes, assessments, governmental charges, claims for labor, supplies, rent and
other obligations which, if unpaid, might become a lien against the Facility or
against Property of the Company, except liabilities being contested in good
faith and against which, if requested by the Agent or the Company will set up
reserves in accordance with GAAP and other than taxes, assessments, governmental
charges and other amounts which are not material in
43
amount and could not reasonably be expected to have a Material Adverse Effect.
Section 8.09 Insurance. The Company will maintain (either in the
---------
name of the Lessor or the Company, as applicable), with financially sound and
reputable insurance companies, insurance on such of its property in at least
such amounts, and with such deductibles, and against at least such risks as are
usually insured against in the same general area by companies of established
repute engaged in the same or similar businesses. Without limitation of the
foregoing, the Company shall maintain or cause to be maintained, with insurers
acceptable to the Lessor and the Agent in their reasonable discretion, insurance
with respect to the Facility and its business in connection therewith of the
types and in the amounts specified in the Lease. The Company will deliver or
cause to be delivered to the Agent and the Lessor promptly upon request of
Agent, and in any event on January 1st of each calendar year, commencing with
January 1, 1998 a report by a firm of independent insurance brokers or
consultants chosen by the Company and acceptable to the Agent (a) setting forth
the insurance or self-insurance obtained pursuant to the Lease, including,
without limitation, the amounts thereof, the names of the insurers and the
property, hazards and risks covered thereby, and certifying that the same comply
with the requirements of the Lease, that all premiums then due and payable
thereon have been paid and that the same are in full force and effect, that the
Lessor and the Agent have been named as additional insureds and loss payees, as
their interests may appear, under each such policy, and are not liable for
payment of premiums thereunder, that such policies may not be cancelled without
at least 30 days prior notice to the Lessor and the Agent with an opportunity to
cure any default thereunder, and (b) certifying that in the opinion of such
firm, such insurance or self-insurance complies with the requirements of the
Lease and, as to amounts, coverage and provisions, constitutes reasonable and
customary coverage against risks customarily insured against which would affect
the Facility, or setting forth any recommendations of such independent insurance
brokers or consultants as to additional insurance, if any, reasonably required
for the protection of the interests of the Company, the Lessor, the Agent and
the Lenders in light of available insurance coverage and practice in the
business engaged in by the Company at the Facility. The Agent shall be entitled
to rely on such reports without further investigation of the facts and
circumstances set forth therein.
Section 8.10 Maintenance of Property. The Company shall maintain
-----------------------
and preserve the Facility in accordance with the requirements of the Lease. The
Company shall maintain and preserve all of its properties and assets, in good
condition, repair and working order, ordinary wear and tear excepted.
Section 8.11 Environmental Notices. The Company, for itself and as
---------------------
Acquisition/Construction Agent for the Lessor, and
44
the Lessor (if the Lessor directly receives written notice thereof) shall
furnish to the Agent prompt written notice of all Environmental Liabilities,
pending or threatened Environmental Proceedings, Environmental Notices,
Environmental Judgments and Orders, and Environmental Releases of which the
Lessor or the Company, as the case may be, shall have received actual notice or
have knowledge at, on, in, under or in any way affecting the Facility or any of
its Properties, and Properties of any Subsidiary, or any adjacent property, if
the amount of liability or of remediation cost to the Company or any Subsidiary
is or could reasonably be expected to have a Material Adverse Effect, and all
facts, events, or conditions actually known to the Company that could reasonably
be expected to lead to any of the foregoing.
Section 8.12 Environmental Matters. The Company shall not, and
---------------------
shall not knowingly permit any Third Party to, use, produce, manufacture,
process, treat, recycle, generate, store, dispose of, manage at, or otherwise
handle, or ship or transport to or from the Facility or the Properties any
Hazardous Materials except for Hazardous Materials such as cleaning solvents,
pesticides and other similar materials used, produced, manufactured, processed,
treated, recycled, generated, stored, disposed of, managed, or otherwise handled
in minimal amounts in the ordinary course of business or of management or
maintenance of the Facility or the Properties in material compliance with all
applicable Environmental Requirements, and will take commercially reasonable
steps to prohibit any Third Party from doing any of the acts prohibited by the
foregoing.
Section 8.13 Environmental Release. The Company agrees that upon
---------------------
its becoming aware of the occurrence of an Environmental Release, except for any
Environmental Release which occurred in substantial compliance with all
Environmental Requirements, at or on the Facility or any of the Properties owned
or operated by it or any Material Subsidiary, it will act promptly to determine
the extent of, and to take appropriate remedial action to eliminate, any such
Environmental Release, whether or not ordered or otherwise directed to do so by
any Environmental Authority, except to the extent that failure to take remedial
action would not have a Material Adverse Effect.
Section 8.14 Transactions with Affiliates. The Company shall not
----------------------------
enter into, or be a party to, any transaction with any Affiliate of Company
(which Affiliate is not a Subsidiary, other than a Person in which the Company
or such Subsidiary owns less than a majority interest and which, if it were a
Subsidiary, would not be a Material Subsidiary), except as permitted by law and
in the ordinary course of business and pursuant to reasonable terms which are no
less favorable to the Company, as the case may be, than would be obtained in a
comparable arm's length transaction with a Person which is not an Affiliate;
provided, that the foregoing shall not affect the ability of the Company from
--------
determining, in its sole discretion,
45
the amount or form of executive or directors compensation from time to time.
Section 8.15 Agreement to Pledge, Etc. The Company acknowledges
------------------------
that the Lessor shall grant to the Agent for the benefit of the Lenders a first
and prior Lien on and security interest in and to the Lease and the other
Operative Documents and shall execute and deliver the Lessor Mortgage
encumbering the Facility, in each case securing certain of the Notes and other
amounts owing under the Operative Documents, subject only to Permitted Liens.
The Lessor, the Agent and the Lenders agree that the Lessor Mortgage may not be
modified or amended in any manner without the prior written consent of the
Company, which consent shall not be unreasonably withheld; provided, however,
-----------------
such consent of the Company shall not be required to the extent any such
modification or amendment would constitute a further assurance of the type
described in Section 8.16 hereof.
Section 8.16 Further Assurances. The Company will cure promptly any
------------------
defects in the due execution and delivery by it of the Operative Documents,
including this Agreement. The Company at its expense will promptly execute and
deliver to the Agent upon request all such other and further documents,
agreements and instruments in compliance with or accomplishment of the covenants
and agreements of the Company in the Operative Documents, including this
Agreement, or to further evidence and more fully describe the collateral
relating to the Facility intended as security for the Notes, or to correct any
item that the Company and the Agent agree constitutes an omission or error in
the Operative Documents, or more fully to state the existing security
obligations set out herein or in any of the Operative Documents, or to perfect,
protect or preserve any Liens created pursuant to any of the Operative
Documents, or to make any recordings, to file any notices, or obtain any
consents, required by the terms of the Operative Documents, all as may be
necessary or appropriate in connection therewith.
Section 8.17 Use of Proceeds; Etc. The Lessor and the Company, as
--------------------
agent for the Lessor, will use the proceeds of the Loans and the LI Fundings for
the purposes specified in Section 7.01(o). The Company, as agent for the
Lessor, will perform and observe in all material respects its obligations under
all Applicable Permits the failure to perform or observe which will have a
Material Adverse Effect. The Company, as Acquisition/Construction Agent for the
Lessor, will preserve, protect and maintain in effect all Applicable Permits
unless the failure to maintain such Applicable Permits could not be reasonably
be expected to have a Material Adverse Effect.
Section 8.18 Maintenance; Etc. The Company shall, as
-----------------
Acquisition/Construction Agent for the Lessor, preserve, protect and maintain in
accordance with prudent industry practices their rights in and to the Applicable
Permits that are necessary for and material to the operation of the Facility the
failure to have
46
or maintain which would have a Material Adverse Effect; and the Company shall
defend and hold harmless the Lessor, the Agent and each Lender from and against
any cost, liability or expense arising from any claim of infringement, misuse or
misappropriation of any of the foregoing in accordance with the procedures set
forth under Section 11.03(c).
Section 8.19 Encroachments. The Facility shall be situated wholly
-------------
within the boundary lines of the Site and shall not encroach upon any contiguous
or adjoining Property (other than those portions of the Facility for which the
Lessor has the right to locate and operate such portions pursuant to use or
operating agreements); and the Facility shall not violate any other easements,
rights-of-way, licenses or other agreements affecting the Site.
Section 8.20 Liens, Etc. The Company covenants and agrees that it
-----------
shall not directly or indirectly create or permit to be created or to remain,
and at the Company's expense will discharge within ten (10) days of notice of
the filing or assertion thereof, by bond, deposit or otherwise, any Lien upon
the Lease or the Facility, except (i) any Lien being contested as permitted by
and in accordance with Section 13 of the Lease, or (ii) Permitted Liens as
provided in Section 12(a) of the Lease.
Section 8.21 Use of Facility. The Company shall not under any
---------------
circumstance undertake to operate or use or otherwise initiate the operations at
or use of the Facility except for the Permitted Use. The Company shall be fully
and solely responsible for funding all costs in connection with the acquisition
of, and any development, renovation, construction and installation of any
enhancements or improvements located or to be located on, the Facility in excess
of the limits contained in Section 2.01, it being understood and agreed that
neither the Lessor, the Agent nor any Lender shall under any circumstances
whatsoever be obligated to fund any amount for any of the Facility Cost in
excess of the limits contained in Section 2.01.
Section 8.22 Covenants of Lessor. Lessor covenants and agrees that
-------------------
so long as it remains Lessor hereunder and under the Lease, Lessor shall
preserve and maintain its corporate existence and material rights, privileges
and franchises, and perform every act and discharge all of its obligations
hereunder and under the Operative Documents; provided the sole remedy of the
--------
parties to this Agreement for breach by Lessor of its obligations shall be to
cause a successor Person satisfactory to the Required Lenders to assume the
rights, duties and obligations of the Lessor hereunder and under the other
Operative Documents.
Section 8.23 Financial Covenants. The Company shall not, directly
-------------------
or indirectly, permit at any time:
47
(a) Maximum Leverage Ratio. The Leverage Ratio for the Four-Quarter Period
----------------------
ending on the date of determination to exceed 3.00 to 1.00.
(b) Minimum Fixed Charge Coverage Ratio. The ratio of (i)(A) Consolidated
-----------------------------------
EBITDA for the Four-Quarter Period ending on the date of determination plus (B)
----
Consolidated Operating Lease Expense for such Four-Quarter Period to (ii)(A)
--
Consolidated Interest Expense for such Four-Quarter Period plus (B) dividends
----
declared by the Company (whether or not paid) during such Four-Quarter Period
plus (C) Consolidated Operating Lease Expense for such Four-Quarter Period plus
---- ----
(D) Consolidated Current Maturities for the Four-Quarter Period beginning on the
date of determination, to be less than 3.0 to 1.0.
Section 8.24 Debt. The Company shall not, directly or indirectly,
----
create, incur, assume or suffer to exist, or permit any Subsidiary to create,
incur, assume or suffer to exist, any Debt other than the following:
(a) obligations under the Operative Documents;
(b) Debt set forth on Schedule 8.24 and any extension, renewal or
replacement of such Debt that is on at least as favorable terms (adjusted for
market conditions at the time of such extension, renewal or replacement) and
that does not increase the aggregate principal of such Debt;
(c) Debt owing by (i) the Company to any Subsidiary in any amount, (ii) the
Material Subsidiaries to the Company in any amount and (iii) Subsidiaries that
are not Material Subsidiaries to the Company in an aggregate outstanding amount
not to exceed 10% of the Consolidated Tangible Net Worth at any time;
(d) Debt in respect of Commercial Paper issued by the Company under a
Commercial Paper Program for which the Revolving Credit Agent and Revolving
Credit Lenders are providing credit enhancement as contemplated by Section 2.13
of the Revolving Credit Agreement;
(e) Debt incurred as a result of endorsement of negotiable instruments for
deposit or collection in the ordinary course of business;
(f) Other Debt of the Company and its Subsidiaries (including any
Subsidiary that is acquired by (or merged or consolidated into) the Company or a
Subsidiary after the Closing Date) in an aggregate amount not to exceed
$200,000,000 at any time outstanding; provided however, that:
-------- -------
(A) The incurrence of any such Debt would not result in a violation of
any term of this Agreement or any other Operative Document, including
without limitation, Section
48
8.23 hereof, or otherwise result in a Default or Event of Default;
(B) Such other Debt (including Debt in respect to standby letters of
credit) of the Company and its Material Subsidiaries shall not exceed
$175,000,000 in the aggregate at any one time outstanding and shall be pari
passu in right of repayment with the obligations of the Company under the
Operative Documents;
(C) Such other Debt of Subsidiaries that are not Material Subsidiaries
shall not exceed $50,000,000 in the aggregate at any one time outstanding;
and
(D) Such other Debt (1) secured by Purchase Money Liens, (2)
constituting Capitalized Lease Obligations and (3) assumed by the Company
or any Subsidiary in connection with any transaction of merger or
consolidation with any Person or in connection with the acquisition by the
Company or a Subsidiary of all or substantially all of the assets
constituting the business or a division or operating unit of a Person and
which such assumed Debt is secured by a Lien on assets acquired in
connection with such merger, consolidation or acquisition, shall not exceed
$50,000,000 in the aggregate at any one time outstanding.
Section 8.25 Investments: Acquisitions. The Company shall not,
-------------------------
directly or indirectly, do any of the following:
(i) Acquire or purchase, or permit any Subsidiary to acquire or purchase,
all or substantially all of the assets constituting the business or a division
or operating unit of any Person or (ii) acquire, or make purchase, or permit any
Subsidiary to acquire, make or purchase, any Investment or (iii) permit any
Investment of the Company or any Subsidiary to be outstanding on and after the
Closing Date other than the following:
(a) Investments in Subsidiaries in existence on the Closing Date and
disclosed in Schedule 8.25, together with any increases in such Investments
after the Closing Date in Material Subsidiaries;
(b) Investments that constitute Debt permitted under Section 8.24;
(c) Loans and advances to employees for moving, entertainment, travel
and other similar expenses in the ordinary course of business consistent with
past practices not to exceed $10,000,000 in the aggregate at any one time;
(d) Investments in "Eligible Investments" described in, and in
accordance with the Company's Cash Investment Policy (as set forth on Exhibit M
to the Revolving Credit Agreement), a
49
copy of which as in effect on the Closing Date has been furnished to the Agent,
as such Cash Investment Policy is amended or otherwise modified from time to
time on terms not inconsistent with such Cash Investment Policy as currently in
effect;
(e) Acquisitions or purchases by the Company or any Material
Subsidiary of all or substantially all of the assets constituting the business
or a division or operating unit of any Person, and the making of Investments in
Material Subsidiaries which Investments are not otherwise subject to any of the
preceding subsections; provided, however, that during any Fiscal Year, (A) the
-------- -------
amount of cash paid, together with the fair market value of all other assets
(excluding assets of the type described in the following clause (B)) conveyed,
by the Company and its Material Subsidiaries in consideration for such
acquisitions, purchases and Investments shall not exceed $150,000,000 in the
aggregate and (B) the market value of all capital stock, warrants and options to
acquire capital stock, of the Company conveyed by the Company in consideration
for such acquisitions, purchases and Investments shall not exceed $400,000,000
in the aggregate; provided, further, however, neither the Company nor any
-------- ------- -------
Material Subsidiary shall effect any one such acquisition, purchase or
Investment (or series of related acquisitions, purchases or Investments) without
the prior written consent of the Required Lenders if the market value of the
capital stock, warrants and options to acquire capital stock, of the Company to
be conveyed by the Company in consideration for such acquisition, purchase or
Investment equals or exceeds $300,000,000 in the aggregate; and
(f) Acquisitions or purchases by any Subsidiary that is not a Material
Subsidiary of all or substantially all of the assets constituting the business
or a division or operating unit of any Person, and the making by the Company or
any Subsidiary after the Closing date of Investments in Persons that are not
Material Subsidiaries; provided, however, (A) the aggregate consideration paid
-------- -------
(excluding any Debt assumed in connection with such acquisition, purchase or
Investment) for such acquisitions, purchases and Investments and (B) the
aggregate amount of increases after the Closing Date in Investments in such
Persons that are not Material Subsidiaries existing as of the Closing Date,
shall not exceed $100,000,000 in the aggregate during any Fiscal Year and
$300,000,000 during the term of this Agreement.
All cash, the market value of all capital stock, warrants and options to
acquire capital stock, of the Company and the fair market value of all other
assets conveyed by the Company as consideration for any transaction of merger or
consolidation effected by the Company or a Subsidiary and which is permitted
under Section 8.04, shall be included in determinations of the Company's
compliance with the immediately preceding subsections (e) and (f).
Section 8.26 Dividends and Other Restricted Payments. Except for
---------------------------------------
dividends or other distributions in respect of capital
50
stock payable solely in shares of such capital stock and dividends or other
distributions payable by any Subsidiary to the Company or any of its other
Subsidiaries, declare, make or pay, or incur any liability to declare, make or
pay, and shall not permit any Subsidiary to declare, make or pay, or to incur
any liability to declare, make or pay, any Restricted Payment if a Default or
Event of Default (a) shall have occurred and be continuing or (b) would result
after giving effect thereto.
Section 8.27 Hedging Obligations. The Company will not, directly or
-------------------
indirectly, create, incur, assume or suffer to exist, or permit any Subsidiary
to create, incur, assume or suffer to exist, any Hedging Obligations other than
the following:
(a) Hedging Obligations under Interest Rate Agreements for notional amounts
not to exceed $300,000,000 in the aggregate at any one time.
(b) Hedging Obligations under foreign currency exchange agreements, forward
contracts and other foreign currency transactions that are intended to hedge
identifiable foreign currency exposures consistent with the practice of the
Company and its Subsidiaries as of the Closing Date; and
(c) Hedging Obligations under commodity swap or option arrangements or
other forward commodities contracts for notional amounts not to exceed
$50,000,000 in the aggregate at any one time.
Section 8.27 Facility Plan. The Company shall deliver the Facility
-------------
Plan to the Lessor and the Agent on or before the Completion Date. The Facility
Plan shall have been prepared in good faith on the basis of assumptions deemed
reasonable by the Company and accurately reflect in all respects all material
costs incurred and/or anticipated to be incurred in connection with achieving
Completion.
Section 8.27 Appraisal. The Company shall deliver the Approved
---------
Appraisal to the Lessor and the Agent on or before the Completion Date. The
Approved Appraisal shall indicate that the projected fair market value of the
Facility as of the expiration of (A) the Construction Period and (B) the Basic
Term (in each case after giving effect to the proposed improvements and
enhancements to be renovated or constructed on the Site in accordance with the
Facility Plan), is not less than the Facility Cost.
ARTICLE IX
Events of Default
51
Section 9.01 Events of Default. The occurrence and continuation of
-----------------
any one or more of the following events shall constitute an "Event of Default".
----------------
(a) The Company, as Acquisition/Construction Agent for the Lessor, (i)
shall default in the payment of any principal of any Loan or LI Funding when
due; or (ii) shall default in the payment of any interest on any Loan or LI
Yield and such failure shall continue for a period of five (5) Business Days
following notice from the Agent or the Lessor of nonpayment; or (iii) shall
default in the payment of any fees or other amounts payable by it hereunder or
under the Operative Documents, to the Agent and the Lenders when due, or shall
default in the payment of any other amounts payable hereunder or under any other
Operative Documents to agents, attorneys and consultants of the Agent or any
Lender when due, and the continuance of such nonpayment for thirty (30) days
following notice thereof from the Agent or the Lessor; or
(b) Any representation, warranty, certification or statement made by
the Company or the Lessor in Article VII of this Agreement or in any other
Operative Document or in any certificate, financial statement or other document
delivered pursuant to this Agreement or any other Operative Document shall prove
to have been incorrect or misleading in any material respect when made or
reaffirmed (or deemed made or reaffirmed); or
(c) The Company or the Lessor shall fail to observe or perform any
covenant or agreement contained in Section 8.01(c), in clause (ii) of Section
8.02, in Sections 8.03 through 8.07 inclusive, or in Sections 8.23 through 8.27
inclusive, of this Agreement; or
(d) The Company or the Lessor shall fail to observe or perform any
covenant or agreement contained or incorporated by reference in this Agreement
(other than those covered by paragraphs (a) and (c) above), and such failure
shall not have been cured within 30 days, after the earlier to occur of (i)
written notice thereof has been given to the Lessor and the Company by the Agent
at the request of the Required Lenders or (ii) an executive, senior financial or
accounting officer of the Company otherwise becomes aware of any such failure;
or
(e) An "Event of Default" under or as defined in (i) the Lease or (ii)
any other Operative Document or (iii) the Revolving Credit Agreement (excluding,
however, any such "Event of Default" arising from a material adverse change or a
change of control thereunder) shall occur; or
(f) The Company or any Material Subsidiary shall fail to make any
payment in respect of Debt outstanding in an aggregate principal amount equal to
or greater than $10,000,000 (excluding Debt incurred pursuant hereto) after the
expiry of any applicable grace period; or
52
(g) Any other event or condition shall occur which (i) results in the
acceleration of the maturity of Debt (other than Debt which would not constitute
a "liability" in accordance with GAAP) outstanding of the Company or any
Material Subsidiary in an aggregate principal amount equal to or greater than
$10,000,000 (including, without limitation, any required mandatory prepayment or
"put" of such Debt to the Company or any Material Subsidiary) or (ii) enables
(or, with the giving of notice or lapse of time or both, would enable) the
holders of such Debt or any Person acting on such holders' behalf to accelerate
the maturity thereof (including, without limitation, any required mandatory
prepayment or "put" of such Debt to the Company or any Material Subsidiary); or
(h) The Company or any Material Subsidiary shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing; or
(i) An involuntary case or other proceeding shall be commenced against
the Company or any Material Subsidiary seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Company or any Material Subsidiary under the
federal bankruptcy laws as now or hereafter in effect; or
(j) The Company or any member of the Controlled Group shall fail to
pay when due any material amount which it shall have become liable to pay to the
PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans shall be filed under Title IV of ERISA by the Company, any member
of the Controlled Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate or to cause a trustee to be appointed to administer any such Plan or
Plans or a proceeding shall be instituted by a fiduciary of any such Plan or
Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within 30 days thereafter; or a condition shall exist by
reason of which the PBGC would be
53
entitled to obtain a decree adjudicating that any such Plan or Plans must be
terminated; or
(k) One or more judgments or orders for the payment of money in an
aggregate amount in excess of $10,000,000 shall be rendered against the Company
or any Material Subsidiary and such judgment or order shall continue unsatisfied
and unstayed for a period of 60 days; or
(l) A federal tax lien shall be filed against the Company under
Section 6323 of the Code or a lien of the PBGC shall be filed against the
Company under Section 4068 of ERISA and if in either case the amount involved is
in an aggregate amount in excess of $10,000,000 and such lien shall remain
undischarged for a period of 25 days after the date of filing;
(m) Any of the Operative Documents shall cease, for any reason, to be
in full force and effect or the Company shall so assert;
(n) The Company shall abandon the Facility as contemplated by Section
17(a)(viii) of the Lease; or
(o) A Hostile Change of Control shall occur or any Non-Hostile
Successor shall no longer be an A-Rated Company;
unless in any event, the Company (or any Affiliate thereof) pays the Termination
------
Value or acquires the Facility by payment in full of the Purchase Price within
five (5) Business Days after the occurrence of such event or existence of such
condition.
Section 9.02 Remedies. Upon the occurrence and continuation of any
--------
Event of Default:
(a) in the case of an Event of Default (other than one referred to in
Sections 9.01(h) or (i)), the Agent may and, upon request of the Required
Lenders, shall, by notice to the Lessor and the Company, cancel the Commitments
and/or declare the principal amount then outstanding of and the accrued interest
on the Loans and the principal amount and accrued LI Yield on the LI Fundings
and all other amounts payable by the Lessor or by the Company, as
Acquisition/Construction Agent for the Lessor, hereunder, under the Notes to be
forthwith due and payable, whereupon such amounts shall be immediately due and
payable without presentment, demand, protest, notice of intent to accelerate,
notice of acceleration or other formalities of any kind, all of which are hereby
expressly waived by the Company and the Lessor; and
(b) in the case of the occurrence of an Event of Default referred to
in Sections 9.01(h) or (i), the Commitments shall be automatically cancelled and
the principal amount then outstanding of and the accrued interest on the Loans
(including without limitation all Accrued Construction Period LI Yield) and
54
the principal amount and accrued LI Yield on the LI Fundings and all other
amounts payable by the Lessor or the Company as Acquisition/Construction Agent
for the Lessor hereunder, under the Notes, and under the other Operative
Documents shall become automatically immediately due and payable without
presentment, demand, protest, notice of intent to accelerate, notice of
acceleration or other formalities of any kind, all of which are hereby expressly
waived by the Company and the Lessor.
(c) Notwithstanding Sections 9.02(a) and (b), the Company may cure any
Default or Event of Default under Section 9.01 by paying the Termination Value
or purchasing the Facility as provided in Section 15(c) of the Lease for the
Purchase Price.
(d) If the Required Lenders shall have instructed the Agent to
foreclose on the Facility and other collateral in accordance with the Security
Instruments and the Lease, then the net cash sales or foreclosure proceeds to be
received must at least equal an amount equal to the Funded Amount, plus all
other amounts then owing to the Lenders hereunder and under the other Operative
Documents. In the event that all of the Lenders and the Lessor have been repaid
in full in accordance with this Agreement with respect to amounts owing to them
as Lenders and the Lessor, or if the Company or any of its Affiliates shall have
acquired all of the Notes and redeemed the Lessor Investment, the Agent shall
act or refrain from acting, and shall be fully protected in acting or refraining
from acting, in accordance with instructions signed solely by the Required
Lenders. Instructions of the Required Lenders and any action taken or failure
to act pursuant thereto, shall be binding on all of the Lenders.
(f) The Agent and the Lenders agree not to exercise their remedies
against the Facility under the Security Instruments unless an Event of Default
has occurred and is continuing hereunder and the Lease has terminated and the
Company (or any Affiliate thereof) shall not have purchased the Facility on or
before the Cancellation Date.
ARTICLE X
The Agent
Section 10.01 Appointment, Powers and Immunities. Each Lender hereby
----------------------------------
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement of this Agreement or collection of
the Notes), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the
55
Required Lenders, and such instructions shall be binding upon all Lenders and
all holders of Notes; provided, however, that the Agent shall not be required to
-------- -------
take any action which exposes the Agent to personal liability or which is
contrary to this Agreement or applicable law. The Agent agrees to give to each
Lender prompt notice of each notice given to it by the Lessor, the Company
pursuant to the terms of this Agreement or any of the Operative Documents.
Section 10.02 Reliance by Agent. None of the Agent or any of its
-----------------
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the Agent:
(a) may treat the payee of any Note as the holder thereof until the Agent
receives and accepts an Assignment and Acceptance entered into by the Lender
which is the payee of such Note as assignor, and an Eligible Assignee, as
assignee, as provided in Section 11.06; (b) may consult with legal counsel
(including counsel for the Company, independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (c) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement or any of the other Operative Documents; (d) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement or any of the other Operative
Documents on the part of the Company or to inspect the Facility or the property
(including the books and records) of the Company; (e) shall not be responsible
to any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, any other Operative
Documents or any other instrument or document furnished pursuant hereto; (f)
shall incur no liability under or in respect of this Agreement or the Operative
Documents by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telegram, telecopier, cable or telex) believed by it to
be genuine and signed or sent by the proper party or parties; and (g) shall act
or refrain from acting, and shall be fully protected in acting or refraining
from acting, in foreclosing on the Facility in accordance with the Security
Instruments, upon receiving instructions signed by the Required Lenders.
Section 10.03 Defaults. The Agent shall not be deemed to have
--------
knowledge of the occurrence of a Default (other than the non-payment of
principal of or interest on Loans or of fees or of LI Fundings or of LI Yield)
unless the Agent has received notice from a Lender, the Company or the Lessor
specifying such Default and stating that such notice is a "Notice of Default."
In the event that the Agent receives such a notice of the occurrence of
56
a Default, the Agent shall give prompt notice thereof to the Lenders (and shall
give each Lender prompt notice of each such non-payment). The Agent shall
(subject to Section 10.07) take such action with respect to such Default as
shall be directed by the Required Lenders as provided in Section 10.02, provided
that, unless and until the Agent shall have received such directions, the Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default as it shall deem advisable in the best
interest of the Lenders.
Section 10.04 Rights as a Lender. With respect to its Commitment,
------------------
the Loans made by it and the Notes issued to it, Wachovia shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Wachovia in its individual
capacity. Wachovia and its affiliates may accept deposits from, lend money to,
act as trustee under indentures of, and generally engage in any kind of business
with, the Company, any of its Subsidiaries and any Person who may do business
with or own securities of the Company or any of its Subsidiaries, all as if
Wachovia were not the Agent and without any duty to account therefor to the
other Lenders.
Section 10.05 Indemnification. The Lenders agree to indemnify the
---------------
Agent (to the extent not reimbursed by the Lessor or the Company), ratably
according to the respective principal amounts of the Notes then held by each of
them (or if no Notes are at the time outstanding or if any Notes are held by
Persons which are not Lenders, ratably according to the respective amounts of
the Aggregate Loan Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, orders, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Agent in any way relating to or
arising out of this Agreement or any of the Operative Documents or any action
taken or omitted by the Agent under this Agreement or any of the Operative
Documents, provided that no Lender shall be liable for any portion of such
--------
liabilities, obligations, losses, damages, penalties, actions, judgments,
orders, suits, costs, expenses or disbursements resulting from the Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its ratable share
of any out-of-pocket expenses (including reasonable counsel fees) incurred by
the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings, in bankruptcy or insolvency proceedings, or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement or the other Operative Documents, to the extent that the Agent is
not reimbursed for such expenses by the Company.
57
Section 10.06 Non-Reliance on Agent and other Lenders. Each Lender
---------------------------------------
acknowledges that it has, independently and without reliance upon the Agent or
any other Lender and based on the financial statements referred to in Section
7.01 and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement. Except for notices, reports
and other documents and information expressly required to be furnished to the
Lenders by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of the Company, the
Lessor or the affiliates of either of them, which may come into the possession
of the Agent or any of its affiliates.
Section 10.07 Failure to Act. The Agent shall in all cases be fully
--------------
justified in failing or refusing to act hereunder or under the Operative
Documents unless it shall be indemnified to its satisfaction by the Lenders
against any and all liability and expenses which may be incurred by it by reason
of taking or continuing to take any such action.
Section 10.08 Resignation or Removal of Agent. The Agent may resign
-------------------------------
at any time by giving written notice thereof to the Lenders, the Lessor and the
Company and may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Agent with the Company's prior consent, which
consent shall in no event be unreasonably withheld, provided that such consent
-------------
by the Company shall not be required in the event that (i) a Default or Event of
Default is in existence, or (ii) such successor Agent is then a Lender or an
Affiliate of a Lender. If no successor Agent shall have been so appointed by
the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Agent, then such retiring Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall be a Lender and a
commercial bank organized, or authorized to conduct a banking business, under
the laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, each successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement and the
Operative Documents. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Article XI shall inure to its
58
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
ARTICLE XI
Miscellaneous
Section 11.01 Amendments, Etc. No amendment or waiver of any
----------------
provision of this Agreement or the Notes, and no consent to any departure by the
Company or the Lessor therefrom, shall be effective against the Company, the
Lessor, the Agent or the Lenders unless it shall be in writing and signed by the
Company, the Required Lenders and the Lessor, and no amendment or waiver of any
provision of any Operative Documents, and no consent to any departure by the
Company or the Lessor therefrom, shall be effective against the Company, the
Lessor, the Agent or the Lenders unless signed by the Persons executing such
Operative Document, the Company, the Agent with the consent of the Required
Lenders and the Lessor; and in any event, any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that (1) no such amendment, waiver or consent shall,
-------- -------
unless in writing and signed by the Company, all the Lenders and the Lessor, be
effective to: (a) waive any of the conditions specified in Article VI, (b) amend
this Section 11.01, (c) except as otherwise permitted in this Agreement or the
other Operative Documents, permit the creation of any Lien (other than Permitted
Liens) on the Collateral equal to or prior to the interests of the Lenders and
the Lessor, sell or otherwise dispose of any portion of the Collateral or
release any Lien created under the Operative Documents, (d) waive the terms of
any payment obligation, amend or modify the order of application of payments and
proceeds, or (e) change the requirements set forth in Schedule 1.02(a) necessary
----------------
to achieve Completion; (2) no such amendment, waiver or consent shall, unless in
writing and signed by the Company and all the Tranche A Lenders, be effective
to: (a) increase the Tranche A Aggregate Loan Commitments or subject the Lenders
to any additional obligations, (b) reduce the principal of, or interest on, the
Tranche A Notes, or any commitment fees hereunder, (c) postpone any date fixed
for any payment of principal of, or interest on, the Tranche A Notes, or any
commitment fees hereunder, (d) change the percentage of the Tranche A Aggregate
Loan Commitments or of the aggregate unpaid principal amount of the Tranche A
Notes, or the number of Lenders, which shall be required for the Lenders or any
of them to take any action under this Agreement; (3) no such amendment, waiver
or consent shall, unless in writing and signed by the Company and all the
Tranche B Lenders, be effective to: (a) increase the Tranche B Aggregate Loan
Commitments or subject the Lenders to any additional obligations, (b) reduce the
principal of, or interest on, the Tranche B Notes, or any commitment fees
hereunder, (c) postpone any date fixed for any payment of principal of, or
interest on, the Tranche B Notes, or any
59
commitment fees hereunder, (d) change the percentage of the Tranche B Aggregate
Loan Commitments or of the aggregate unpaid principal amount of the Tranche B
Notes, or the number of Lenders, which shall be required for the Lenders or any
of them to take any action under this Agreement and (4) no such amendment,
waiver or consent shall, unless in writing and signed by the Lessor and the
Company, be effective to: (a) increase the Lessor's Investment Commitment, or
subject the Lessor to any additional obligations, (b) reduce the principal
amount of or LI Yield on LI Fundings, or any Fees payable with respect thereto,
(c) postpone any date fixed for any payment of principal of LI Fundings, or LI
Yield, or any fees payable; provided, further, that no amendment, waiver or
-------- -------
consent shall, unless in writing and signed by the Agent in addition to the
Lenders, the Lessor and other Persons required hereinabove to take such action,
affect the rights or duties of the Agent under this Agreement, or any Note.
Section 11.02 Notices. Except as otherwise provided in Article II or
-------
Article V, all notices and other communications provided for hereunder shall be
in writing (including by telecopier and other readable communication) and mailed
by certified mail, return receipt requested, telecopied or otherwise transmitted
or delivered, if to the Company, at Xxx Xxxxxxxxxx Xxxxxxx, Xxxxx, Xxxxxxxx,
Xxxxxxx 00000-0000, Attention: Xxxxxx X. Xxxxxx, Telecopier: (000) 000-0000,
with a copy to Lessee at Lessee's address but to the Attention of Xxxxxxx Xxxxx,
Esq., Telecopier (000) 000-0000 and a copy to Xxxxxxx X. Xxxxxxxxx, Esq., Paul,
Hastings, Xxxxxxxx & Xxxxxx, Xxxxx 0000, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
00000, Telecopier (000)000-0000; if to any Lender, at its address set forth
under its name on its signature page hereto; if to the Agent, 000 Xxxxxxxxx
Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, Attention: Vice President, Southeast
Corporate Division, Telecopier: 000-000-0000; if to the Lessor at 000 Xxxxxxxxx
Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, Attention: TOOL Product Manager,
Telecopier: 000-000-0000; or, as to each party at such other address as shall be
designated by such party in a written notice to the other parties. All such
notices and communications shall, if so mailed, telecopied or otherwise
transmitted, be effective when received, if mailed, or when the appropriate
answer back or other evidence of receipt is given, if telecopied or otherwise
transmitted, respectively. A notice received by the Agent or a Lender by
telephone pursuant to Article II or Article V shall be effective if the Agent or
Lender believes in good faith that it was given by an authorized representative
of the Company and acts pursuant thereto, notwithstanding the absence of written
confirmation or any contradictory provision thereof.
Section 11.03 Payment of Expenses, Indemnities, etc.
-------------------------------------
(a) The Company as Acquisition/Construction Agent for the Lessor
agrees to pay on demand (i) all reasonable fees and out-of-pocket expenses of
counsel for the Agent in connection
60
with the preparation, execution and delivery of this Agreement, the Notes, the
other Operative Documents and the other documents to be delivered hereunder and
the fulfillment or attempted fulfillment of conditions precedent hereunder, (ii)
all reasonable costs and expenses incurred by the Agent and its Affiliates in
initially syndicating all or any portion of the Commitments hereunder,
including, without limitation, the related reasonable fees and out-of-pocket
expenses of counsel for the Agent or its Affiliates, travel expenses,
duplication and printing costs and courier and postage fees, and excluding any
syndication fees paid to other parties joining the syndicate and (iii) all out-
of-pocket costs and expenses, if any, incurred by the Agent and the Lenders in
connection with the enforcement (whether through negotiations, legal proceedings
in bankruptcy or insolvency proceedings, or otherwise) of this Agreement, the
Notes, the other Operative Documents and the other documents to be delivered
hereunder and thereunder, including the reasonable fees and out-of-pocket
expenses of counsel. In furtherance of and not in limitation of the foregoing,
the Company shall pay all fees, costs and expenses incurred in obtaining the
Facility Plan, the Approved Appraisal, the environmental report referred to in
Section 6.01(i), the title policy referred to in Section 6.01(m), the Surveys
and the Related Contracts. The Company shall indemnify the Lessor, the Agent
and each Lender against any transfer taxes, documentary taxes, assessments or
charges made by any Governmental Authority by reason of the execution and
delivery of any of the Operative Documents.
(b) The Company agrees, in addition to any other indemnity obligations
set forth in any Operative Document, to indemnify and save harmless, the Lessor,
the Agent, each Lender and any of their successors and assigns, and their
respective officers, directors, incorporators, shareholders, employees, agents,
partners, attorneys, affiliates and servants (individually an "Indemnified
-----------
Party" and collectively the "Indemnified Parties") from and against all
----- -------------------
liabilities, Liens, Taxes, losses, obligations, claims, damages (including,
without limitation, penalties, fines, court costs and administrative service
fees), penalties, demands, causes of action, suits, proceedings (including any
investigations, litigation or inquiries), judgments, orders, sums paid in
settlement of claims, and costs and expenses of any kind or nature whatsoever,
including, without limitation, reasonable attorneys' fees and expenses and all
other expenses incurred in connection with investigating, defending or preparing
to defend any cause of action, suit or proceeding (including any investigations,
litigation or inquiries) or claim which may be incurred by or asserted against
or involve any of them (whether or not any of them is named as a party thereto)
as a result of, arising directly or indirectly out of or in any way related to
(i) any actual or proposed use by the Lessor or the Company of the proceeds of
any of the Loans or LI Fundings, (ii) any other aspect of this Agreement, the
Notes, and the other Operative Documents, (iii) the operations of the business
of the Company,
61
(iv) the failure of the Company to comply with any Governmental Requirement
(including, without limitation, design, construction, manufacture, engineering,
assembly, installation, use, operation or ownership of the Facility or any
portion thereof), (v) the breach of any representation or warranty set forth
herein regarding Environmental Requirements, (vi) the failure of the Company as
Acquisition/Construction Agent for the Lessor to pay any amount required to be
paid hereunder, including, without limitation, principal and interest on the
Notes or the Lessor Investment and LI Yield (whether or not the Lease has
terminated), (vii) the failure of the Company to perform any obligation herein
required to be performed pursuant to Environmental Requirements, or any act or
omission which occurred or will occur at any prior or subsequent time, or any
condition or state of facts in existence at any prior or subsequent time
relating in any way to the Facility which gives rise to any liability or
obligation under any Environmental Requirement or gives rise to any
Environmental Damages, (viii) the Lessor's ownership and leasing of the Facility
pursuant to the Lease, (ix) the sale of any portion of the Facility either to
the Company or any other Person pursuant to the provisions of the Lease, (x) all
acts or omissions of the Company, (xi) any Imposition, Lien, judgment, order,
tax, or other payment owing in respect of the Facility or which the Company is
obligated to discharge or pay to any Person, (xii) any action or omission of the
Company pursuant to, or breach of or failure to perform under, the Agency
Agreement, (xiii) any injury to, or death of, any Person, or damage to or loss
of Property to the extent not reimbursed by insurance prior to the Indemnified
Party having to make any payment in respect thereof, or any other thing
occurring on or resulting from activities on the Facility or any portion
thereof, (xiv) the renovation, construction, leasing, subleasing, operation,
occupancy, possession, use or non-use by the Company (whether in its individual
capacity or as Acquisition/Construction Agent for the Lessor) of the Facility or
any portion thereof, or the condition of the Facility or any portion thereof,
(xv) any Default or Event of Default under the Lease or this Agreement, (xvi)
any act or omission of the Company or its agents, contractors, licensees,
invitees, representatives or any other Person on or relating to, or in
connection with, the ownership, renovation, construction, leasing, subleasing,
operation, management, maintenance, occupancy, possession, use, non-use or
condition of the Facility or any portion thereof, (xvii) performance of any
labor or services or furnishing of any materials or other Property in respect of
the Facility or any portion thereof, (xviii) any permitted contest referred to
in Section 13 of the Lease, (xix) any claims for patent, trademark, trade name
or copyright infringement or (xx) any violation by the Company of any Operative
Document or any Related Contracts or any other contract or agreement to which
the Company is a party, or of any Insurance Requirement, in each case affecting
any Indemnified Party, the Facility or any portion thereof or the ownership,
operation, occupancy, possession, use, non-use or condition thereof, in each
case regardless of the acts or
62
omissions of any Indemnified Party, it being the intent of the Company, to the
fullest extent permitted by applicable law, to indemnify the Indemnified Parties
for their own negligent acts or omissions (other than gross negligence or wilful
misconduct) in connection with any of the foregoing (collectively, the
"Indemnified Risks"); provided, however, that no Indemnified Party shall be
------------------ -------- -------
entitled to indemnity (or any other payment or reimbursement) for any
Indemnified Risks to the extent such Indemnified Risks result from or arise out
of one or more of the following: (1) any representation or warranty by such
Indemnified Party in the Operative Documents being incorrect; (2) the willful
misconduct or gross negligence of, or the violation of any law, rule or
regulation binding upon such Indemnified Party; (3) the failure on the part of
the Lessor or the Agent to distribute in accordance with this Agreement any
amounts received and distributable by it hereunder; (4) a claim arising from the
offer, sale or delivery of a Note or an interest in a Note or this Agreement by
such Indemnified Party (other than the Lessor, subject nevertheless to clause
(2) above) for a violation of any Governmental Requirement unless such violation
was caused by some performance or nonperformance of the Company; (5) claims of
such Indemnified Party which is a Lender or the Agent arising because of a claim
against such Indemnified Party brought by another Lender or the Agent; (6) any
claim for economic losses based upon the rate of return of the Loans; and (7)
payment of the principal of the Tranche B Loans or the LI Fundings in the
circumstances described in Section 3.05(b), if the Company shall have paid the
Final Rent Payment or the Completion Costs Payment, as applicable, and complied
with its other obligations under the Operative Documents.
(c) If a claim is to be made by an Indemnified Party under this
Section, the Indemnified Party shall give written notice to the Company promptly
after the Indemnified Party receives actual notice of any cause of action, suit,
proceeding, claims or expense incurred or instituted for which the
indemnification is sought. If requested by the Company in writing, and so long
as no Default or Event of Default shall have occurred and be continuing, the
Company may, at its election, conduct the defense of any such cause of action,
suit, proceeding or claim to the extent such contest may be conducted in good
faith on legally supported grounds. If any lawsuit or enforcement action is
filed against any Indemnified Party entitled to the benefit of indemnity under
this Section, written notice thereof shall be given to the Company as soon as
practicable (and in any event within 15 days after the service of the citation
or summons). Notwithstanding the foregoing, the failure so to notify the
Company as provided in this Section will relieve the Company from liability
hereunder only if and to the extent that such failure results in the forfeiture
by the Company of substantive rights and defenses. After such notice, the
Company shall be entitled, if it so elects, to take control of the defense and
investigation of such lawsuit or action and to employ and engage counsel of its
own choice reasonably acceptable
63
to the Indemnified Party to handle and defend the same, at the Company's cost,
risk and expense; provided, however, that the Company and its counsel shall
-------- -------
proceed with diligence and in good faith with respect thereto. If (i) the
engagement of such counsel by the Company would present a conflict of interest
which would prevent such counsel from effectively defending such action on
behalf of the Indemnified Party, (ii) the defendants in, or targets of, any such
lawsuit or action include both the Indemnified Party and the Company, and the
Indemnified Party reasonably concludes that there may be legal defenses
available to it that are different from or in addition to those available to the
Company, (iii) the Company fails to assume the defense of the lawsuit or action
or to employ counsel reasonably satisfactory to such Indemnified Party, in
either case in a timely manner, or (iv) a Default or Event of Default shall
occur and be continuing, then such Indemnified Party may employ separate counsel
to represent or defend it in any such action or proceeding and the Company will
pay the reasonable fees and disbursements of such counsel; provided, however,
-------- -------
that each Indemnified Party shall endeavor, but shall not be obligated, in
connection with any matter covered by this Section which also involves other
indemnitees, to use reasonable efforts to avoid unnecessary duplication of
efforts by counsel for all indemnitees. The Indemnified Party shall cooperate
(with all claims and expenses associated therewith to be paid by the Company) in
all reasonable respects with the Company and such attorneys in the
investigation, trial and defense of such lawsuit or action and any appeal
arising therefrom and the Indemnified Party may participate in the
investigation, trial and defense of such lawsuit or action and any appeal
arising therefrom. If (i) the Company is required to indemnify an Indemnified
Party pursuant hereto and (ii) the Company has provided evidence reasonably
satisfactory to such Indemnified Party that the Company has the financial
wherewithal to reimburse such Indemnified Party for any amount paid by such
Indemnified Party with respect to such indemnified proceeding, then such
Indemnified Party shall not settle or compromise any such indemnified proceeding
without the prior written consent of the Company (which consent shall not be
unreasonable withheld or delayed) and shall only settle or compromise any such
indemnified proceeding on reasonable terms.
Any indemnity provided by the Company under any Operative Document,
notwithstanding any provision contained therein to the contrary, shall be
governed by the provisions of this Section 11.03.
(d) The obligations of the Company under this Section 11.03 shall
survive the expiration or any termination of this Agreement (whether by
operation of law or otherwise) and the payment of amounts owed by the Lessor and
the Company under this Agreement, the Notes and the other Operative Documents,
and shall also expressly survive any sale, transfer or conveyance of the
Facility made by the Lessor pursuant to the Lease.
64
(e) Upon demand for payment by any Indemnified Party of any
Indemnified Risks incurred by it for which indemnification is sought, the
Company shall pay when due and payable the full amount of such Indemnified Risks
to the appropriate party, unless and only so long as: (i) the Company shall have
assumed the defense of such action and is diligently prosecuting the same; (ii)
the Company is financially able to pay all its obligations outstanding and
asserted against the Company at that time, including the full amount of the
Indemnified Risks; and (iii) the Company has taken all action as may be
reasonably necessary to prevent (1) the collection of such Indemnified Risks
from the Indemnified Party; (2) the sale, forfeiture or loss of the Facility or
any portion thereof during such defense of such action; and (3) the imposition
of any civil or criminal liability for failure to pay such Indemnified Risks
when due and payable.
(f) The Company acknowledges and agrees that (i) its obligations under
this Section 11.03 are intended to include and extend to any and all
liabilities, Liens, Taxes, losses, obligations, claims, damages (including,
without limitation, penalties, fines, court costs and administrative service
fees), penalties, demands, causes of action, suits, proceedings (including any
investigations, litigation or inquiries), judgments, orders, sums paid in
settlement of claims, costs and expenses (including, without limitation,
response and remediation costs, stabilization costs, encapsulation costs, and
treatment, storage or disposal costs), imposed upon or incurred by or asserted
at any time against any Indemnified Party (whether or not indemnified against by
any other party) as a result of, arising directly or indirectly out of or in any
way related to (A) the treatment, storage, disposal, generation, use, transport,
movement, presence, release, threatened release, spill, installation, sale,
emission, injection, leaching, dumping, escaping or seeping of any Hazardous
Materials at or from the Facility or any part thereof; (B) the violation or
alleged violation of any Environmental Laws relating to or in connection with
the Facility or any part thereof or any acts or omissions thereon or relating
thereto; (C) all other federal, state and local laws designed to protect the
environment or persons or property therein, whether now existing or hereinafter
enacted, promulgated or issued by any governmental authority relating to or in
connection with the Facility or any part thereof or any acts or omissions
thereon or relating thereto; (D) the Company's failure to comply with its
obligations under Section 7 of the Lease; and (E) any abandonment of the
Facility by the Company; provided, however that no Indemnified Party shall be
-------- -------
entitled to indemnity or any other payment or reimbursement for any of the types
of claims enumerated in this Section 11.03(f) to the extent such claims result
from or arise out of the willful misconduct or gross negligence of such
Indemnified Party; and (ii) the indemnification provided for under this Section
11.03(f) shall be governed by the procedures set forth in Sections 11.03(c)-(e)
above.
65
(g) Without limiting the generality of the foregoing provisions of
this Section 11.03, the Company agrees to pay or reimburse, promptly upon
demand, and protect, indemnify and save harmless, the Lessor, as Lessor under
the Lease, following the occurrence of a Termination Event, from any action by
any owner of an interest in the Facility (other than a Co-Lessee) which causes
the Lessor, as Lessor under the Lease, any delay in exercising its remedies, or
results in the reduction of the Lessor's remedies, under the Lease. Upon demand
of the Lessor, as Lessor under the Lease, for indemnification pursuant to this
Section 11.03(g), the Company agrees that it will, within twenty (20) days of
such demand from the Lessor, (a) purchase the Notes from the Lenders for a
purchase price equal to the principal balance, accrued, unpaid interest, fees
and expenses, and all other amounts then owing by the Lessor to the Lenders as
advised to the Company in writing by the Agent, and (b) redeem the Lessor
Investment for a purchase price equal to the outstanding amount thereof, accrued
and unpaid LI Yield, fees and expenses, and all other amounts then owing by the
Lessor to the Lenders as advised to the Company and in writing to the Agent.
(h) In case any action shall be brought against any Indemnified Party
in respect of which indemnity may be sought against the Company, such
Indemnified Party shall promptly notify the Company in writing, but the failure
to give such prompt notice shall not relieve the Company from liability
hereunder.
Section 11.04 No Waiver; Remedies. No failure on the part of any
-------------------
Lender, the Agent or the Lessor to exercise, and no delay in exercising, any
right hereunder or under any Note, any Operative Document shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
or under any Note, or Operative Document preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
Section 11.05 Right of Set-Off. Upon the declaration of the Notes as
----------------
due and payable pursuant to the provisions of Section 9.02, each Lender is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender to or for the credit or the account of the Company
against any and all of the obligations of the Company now or hereafter existing
under this Agreement, the Notes of the Company held by such Lender, irrespective
of whether or not such Lender shall have made any demand under this Agreement,
such Notes and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Company after any such set-off and application made by
such Lender, provided that the failure to give such notice shall not affect the
--------
validity of such set-off and application. The rights of each Lender under this
Section 11.05 are in addition to
66
other rights and remedies (including, without limitation, other rights of set-
off) which such Lender may have.
Section 11.06 Assignments and Participations.
------------------------------
(a) Neither the Lessor nor the Company may assign its rights or
obligations hereunder or under the Notes or any other Operative Document without
the prior consent of all of the Lenders and the Agent. Except during the
existence of an Event of Default, neither the Lessor nor the Agent may, without
the prior written consent of the Company, assign any interest under the (i)
Ground Lease, except in accordance with Section 9 thereof, or (ii) the Lease,
except in accordance with Sections 12 and 21 thereof.
(b) Each Lender may at any time assign to one or more banks or other
financial institutions all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Loan
Commitment, the Loans owing to it and the Note held by it) and the assignee
thereof shall assume all such rights and obligations pursuant to an Assignment
and Acceptance; provided, however, that (i) each such assignment shall be of a
-------- -------
constant, and not a varying, percentage of all rights and obligations under this
Agreement, (ii) no interest may be sold by a Lender pursuant to this Section
11.06(b) unless the assignee shall agree to assume ratably equivalent portions
of the assigning Lender's rights and obligations under this Agreement, (iii) the
amount of the Loan Commitment of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of the Assignment and Acceptance
with respect to such assignment) shall in no event be less than $5,000,000, or
integral multiples of $1,000,000 in excess thereof, in the case of assignments
of Loan Commitments (or, if less, the entire Commitment of the assigning
Lender), (iv) each such assignment shall be to an Eligible Assignee, (v) a
Lender may not have more than two (2) assignees that are not then Lenders at any
one time and (vi) the parties to each such assignment shall execute and deliver
to the Agent, for its acceptance and recording in the Register, an Assignment
and Acceptance, together with any Note subject to such assignment and a
processing and recordation fee of $2,500, and shall send to the Company an
executed counterpart of such Assignment and Acceptance. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (A) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (B) the assigning Lender thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and
67
obligations under this Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the Company
or the performance or observance by the Company of any of its obligations under
this Agreement or any other Operative Document; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 7.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of this Agreement are required to be performed by it as either a
Lender.
(d) The Agent shall maintain at its address referred to in Section
11.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders and
the Loan Commitment of, and principal amount of the Loans owing to, each Lender
from time to time (the "Register"). The entries in the Register shall be
--------
conclusive and binding for all purposes, absent manifest error, and the Company,
the Lessor, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Company or any
Lender at any reasonable time and from time to time upon reasonable prior
notice. Upon the acceptance of any Assignment and Acceptance for recordation in
the Register, Exhibit D hereto shall be deemed to be amended to reflect either
---------
the revised Loan Commitments of the Lenders parties to such
68
Assignment and Acceptance as well as administrative information with respect to
any new Lender as such information is recorded in the Register.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note subject to such assignment, the Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form of
Exhibit D hereto, (i) accept such Assignment and Acceptance, (ii) record the
---------
information contained therein in the Register and (iii) give prompt notice
thereof to the Lessor, the Company; within five (5) Business Days after its
receipt of such notice and its receipt of an executed counterpart of such
Assignment and Acceptance, the Lessor, at the expense of the Company, shall
execute and deliver to the Agent in exchange for the surrendered Note, or a new
Note, as appropriate, to the order of such Eligible Assignee in an amount equal
to the Loan Commitment assumed by it pursuant to such Assignment and Acceptance
and, if the assigning Lender has retained a Loan Commitment, a new Note, to the
order of the assigning Lender in an amount equal to the Loan Commitment retained
by it hereunder. Such new Note shall be in an aggregate principal amount equal
to the aggregate principal amount of such surrendered Note, shall be dated the
date of such Assignment and Acceptance and shall otherwise be in substantially
the form of Exhibit B or Exhibit C, as applicable.
--------- ---------
(f) Each Lender may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Loan
Commitment and the Loans owing to it and the Notes held by it); provided,
--------
however, that (i) such Lender's obligations under this Agreement (including,
-------
without limitation, its Loan Commitment to the Lessor hereunder) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Lender shall remain
the holder of any such Notes for all purposes of this Agreement, (iv) the
Company, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with its rights and obligations under
this Agreement and the other Operative Documents, (v) such Lender shall continue
to be able to agree to any modification or amendment of this Agreement or any
waiver hereunder without the consent, approval or vote of any such participant
or group of participants, other than modifications, amendments and waivers which
(A) postpone any date fixed for any payment of, or reduce any payment of,
principal of or interest on such Lender's Notes or (B) increase the amount of
such Lender's Loan Commitment in a manner which would have the effect of
increasing the amount of a participant's participation, or (C) reduce the
interest rate payable under this Agreement and such Lender's Note, or (D)
consent to the assignment or the transfer by the Company or the Lessor of any of
its rights and obligations under this Agreement and (vi) except as contemplated
69
by the immediately preceding clause (v), no participant shall be deemed to be or
to have any of the rights or obligations of a "Lender" hereunder.
(g) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 11.06, disclose
to the assignee or participant or proposed assignee or participant any
information relating to the Company furnished to such Lender by or on behalf of
the Company; provided that, prior to any such disclosure, the assignee or
--------
participant or proposed assignee or participant shall agree in writing for the
benefit of the Company to preserve the confidentiality of any confidential
information relating to the Company received by it from such Lender in a manner
consistent with Section 11.13.
(h) Anything in this Agreement to the contrary notwithstanding, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Loans owing to
it) and the Note issued to such Lender hereunder in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System (or any successor regulation) and the applicable operating
circular of such Federal Reserve Bank.
(i) Notwithstanding any other provision of this Agreement or any other
Operative Document, neither the Company nor any of its respective Affiliates may
acquire any of the Notes or the Lessor Investment unless the Company or such
Affiliate acquires all of the Notes and the entire Lessor Investment in a single
transaction and thereby becomes bound by the provisions hereof; and unless the
Company or such Affiliate shall have acquired all of the Notes and the entire
Lessor Investment, it shall not be entitled to exercise any rights or remedies
of a Lender under any of the Operative Documents.
(j) Notwithstanding any other provision of this Agreement to the
contrary, no assignee or participant shall be entitled to receive any greater
payment under Section 4.06 or 5.03 than the transferor Lender would have been
entitled to receive with respect to the rights transferred, unless such transfer
is made with the Company's prior written consent or by reason of the provisions
of Section 5.02 or 5.03 hereof requiring such Lender to designate a different
Applicable Funding Office under certain circumstances or at a time when the
circumstances giving rise to such a greater payment did not exist.
Section 11.07 Invalidity. In the event that any one or more of the
----------
provisions contained in the Notes, this Agreement or in any other Operative
Document shall, for any reason, be held invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
70
other provision of the Notes, this Agreement or any other Operative Document.
Section 11.08 Entire Agreement. THE NOTES, THIS AGREEMENT AND THE
----------------
OTHER OPERATIVE DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING AMONG
THE LENDERS, THE LESSOR, THE AGENT, THE COMPANY AND SUPERSEDE ALL OTHER
AGREEMENTS AND UNDERSTANDINGS AMONG SUCH PARTIES RELATING TO THE SUBJECT MATTER
HEREOF AND THEREOF. THIS WRITTEN AGREEMENT, THE NOTES, AND THE OTHER OPERATIVE
DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
Section 11.09 References. The words "herein," "hereof," "hereunder"
----------
and other words of similar import when used in this Agreement refer to this
Agreement as a whole, and not to any particular article, section or subsection.
Any reference herein to an Article or Section shall be deemed to refer to the
applicable Article or Section of this Agreement unless otherwise stated herein.
Any reference herein to an exhibit or schedule shall be deemed to refer to the
applicable exhibit or schedule attached hereto unless otherwise stated herein.
Section 11.10 Successors; Survivals. This Agreement shall be binding
---------------------
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. The obligations of the Lessor and the Company
under Section 4.06, Article V, and Section 11.03 shall survive the repayment of
the Loans, the LI Fundings and the termination of the Commitments.
Section 11.11 Captions. Captions and section headings appearing
--------
herein are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Agreement.
Section 11.12 Counterparts. This Agreement may be executed in any
------------
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart. Delivery to the Agent of a counterpart executed
by a Lender shall constitute delivery of such counterpart to all of the Lenders.
This Agreement may be delivered by facsimile transmission of the relevant
signature pages hereof.
Section 11.13 Confidentiality. Each Lender, the Agent and the Lessor
---------------
(each, a "Party") agrees to exercise commercially reasonable efforts to keep any
-----
information delivered or made available by the Company to it which is clearly
indicated or stated to be confidential information (or when the circumstances
under which such information is delivered or when the content thereof would
cause a reasonable person to believe that such information is confidential),
confidential from anyone other than Persons employed or retained by such Party
who are or are expected to become engaged in evaluating, approving, structuring
71
or administering the Loans, the LI Fundings, or the Operative Documents (such
Persons to likewise be under similar obligations of confidentiality with respect
to such information); provided, however, that nothing herein shall prevent any
-------- -------
Party from disclosing such information (a) to any other Party, (b) upon the
order of any court or administrative agency, (c) upon the request or demand of
any regulatory agency or authority having jurisdiction over such Party, (d)
which has been publicly disclosed, (e) to the extent reasonably required in
connection with any litigation to which any Party or its respective affiliates
may be a party, (f) to the extent reasonably required in connection with the
exercise of any remedy hereunder, (g) to such Party's legal counsel and
independent auditors, and (h) to any actual or proposed Lender, Eligible
Assignee or other transferee of all or part of its rights hereunder which has
agreed in writing to be bound by the provisions of this Section 11.13; provided
--------
that should disclosure of any such confidential information be required by
virtue of clause (b), (c) or (e) of the immediately preceding sentence, any
relevant Party shall promptly notify the Company of same so as to allow the
Company to seek a protective order or to take any other appropriate action;
provided, further, that no Party shall be required to delay compliance with any
-------- ------- ----
directive to disclose beyond the last date such delay is legally permissible any
such information so as to allow the Company to effect any such action.
Section 11.14 GOVERNING LAW; SUBMISSION TO JURISDICTION.
-----------------------------------------
(a) This Agreement, the Notes and the other Operative Documents
(including, but not limited to, the validity and enforceability hereof and
thereof) shall be governed by, and construed in accordance with, the laws of the
State of Georgia, other than the conflict of laws rules thereof.
(b) The Company hereby irrevocably submits to the jurisdiction of any
Georgia or Federal court sitting in Atlanta, Georgia and any appellate court
from any thereof in any action or proceeding by the Agent or any Lender in
respect of, but only in respect of, any claims or causes of action arising out
of or relating to this Agreement, the Notes, or the other Operative Documents
(such claims and causes of action, collectively, being "Permitted Claims"), and
----------------
the Company hereby irrevocably agrees that all Permitted Claims may be heard and
determined in such Georgia State court or in such Federal court. The Company
hereby irrevocably waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any aforementioned court in respect of Permitted Claims. Service of process
may be made by delivering a copy of such process to the Company by courier and
by certified mail (return receipt requested), fees and postage prepaid at the
Company's address specified pursuant to Section 11.02. The Company agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
72
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
Section 11.15 Interest; LI Yield. It is the intention of the parties
------------------
hereto that each Lender and the Lessor shall conform strictly to usury laws
applicable to it. Accordingly, if the transactions contemplated hereby would be
usurious as to any Lender or the Lessor under laws applicable to it (including
the laws of the United States of America and the State of Georgia or any other
jurisdiction whose laws may be mandatorily applicable to such Lender or the
Lessor notwithstanding the other provisions of this Agreement), then, in that
event, notwithstanding anything to the contrary in the Notes, this Agreement or
in any other Operative Document or any other agreement entered into in
connection with or as security for the Notes or the Lessor Investment, it is
agreed as follows: (i) the aggregate of all consideration (whether interest on
the Loans or LI Yield) which constitutes interest under law applicable to any
Lender or the Lessor that is contracted for, taken, reserved, charged or
received by such Lender or the Lessor under the Notes, the Lessor Investment,
this Agreement or under any of the other aforesaid Operative Documents or other
agreements or otherwise in connection with the Notes or the Lessor Investment
shall under no circumstances exceed the maximum amount allowed by such
applicable law, and any excess shall be cancelled automatically and if
theretofore paid shall be credited by such Lender or the Lessor on the principal
or face amount of the Notes or the unrecovered Lessor Investment (or, to the
extent that the principal or face amount of the Notes or the unrecovered Lessor
Investment shall have been or would thereby be paid in full, refunded by such
holder thereof); and (ii) in the event that the maturity of the Notes is
accelerated or the Lessor Investment called by reason of an election of the
holder thereof resulting from any Event of Default under this Agreement or
otherwise, or in the event of any required or permitted prepayment, then such
consideration that constitutes interest under law applicable to any holder
thereof may never include more than the maximum amount allowed by such
applicable law, and excess interest, if any, provided for in this Agreement or
otherwise shall be cancelled automatically by such holder thereof as of the date
of such acceleration or prepayment and, if theretofore paid, shall be credited
by such Lender on the principal or face amount of the Notes, or the unrecovered
Lessor Investment, as the case may be (or, to the extent that the principal or
face amount of the Notes or the unrecovered Lessor Investment shall have been or
would thereby be paid in full, refunded by the holder thereof). All sums paid
or agreed to be paid to any Lender or the Lessor for the use, forbearance or
detention of sums due hereunder shall, to the extent permitted by law applicable
to such Lender or the Lessor, be amortized, prorated, allocated and spread in
equal parts throughout the full term of the Loans evidenced by the Notes or
Lessor Investment until payment in full so that the rate or amount of interest
on account of any Loans or LI Yield hereunder does not exceed the maximum amount
allowed by such
73
applicable law. If at any time and from time to time (i) the amount of interest
or yield payable to any Lender or LI Yield payable to the Lessor on any date
shall be computed at the Highest Lawful Rate applicable to such Lender or Lessor
pursuant to this Section 11.15 and (ii) in respect of any subsequent interest or
yield computation period the amount of interest or yield otherwise payable to
such Lender or LI Yield payable to the Lessor would be less than the amount of
interest or yield payable to such Lender or Lessor computed at the Highest
Lawful Rate applicable to such Lender or Lessor, then the amount of interest or
yield payable to such Lender or Lessor in respect of such subsequent interest or
yield computation period shall continue to be computed at the Highest Lawful
Rate applicable to such Lender or Lessor until the total amount of interest or
yield payable to such Lender or Lessor shall equal the total amount of interest
or yield which would have been payable to such Lender or Lessor if the total
amount of interest or yield had been computed without giving effect to this
Section.
To the extent that Article 5069-1.04 of the Texas Revised Civil Statutes is
relevant to any Lender or Lessor for the purpose of determining the Highest
Lawful Rate, each such Lender or Lessor hereby elects to determine the
applicable rate ceiling under such Article by the indicated (weekly) rate
ceiling from time to time in effect.
Section 11.16 Characterization.
----------------
(a) In order to protect the rights and remedies of the Lessor, the
Agent and the Lenders for the purposes of Federal, state and local income and ad
valorem taxes and Title 11 of the United States Code (or any other applicable
Federal, state or local insolvency, reorganization, moratorium, fraudulent
conveyance or similar law now or hereafter in effect), the parties hereto intend
that (i) the Lease be treated as the repayment and security provisions of a loan
by the Lessor to the Company in the amount of the Facility Cost, (ii) all
payments of Basic Rent, Interim Special Rent, Supplemental Rent, the Final Rent
Payment or the Completion Costs Payment, as applicable, the Termination Value
and the Purchase Price be treated as payments of principal, interest and other
amounts owing with respect to such loan and (iii) the Company be treated as
entitled to all benefits of ownership of the Facility or any part thereof. In
addition, the parties acknowledge that after payment in full of the Notes, the
interest and yield accrued thereon and any other obligations of the Company
under the Operative Documents, any remaining proceeds of the Facility shall be
distributed to the Company.
(b) The Company agrees that neither it nor any of its Affiliates
(whether or not consolidated or combined returns are filed for any such
Affiliate and the Company for federal, state or local income tax purposes) will
at any time take any action, directly or indirectly, or file any return or other
document
74
inconsistent with the intended income tax treatment set forth in the preceding
sentence, and the Company agrees that the Company and any such Affiliates will
file such returns, maintain such records, take such action and execute such
documents (as reasonably requested by the Lessor, the Agent or the Lenders from
time to time) as may be appropriate to facilitate the realization of such
intended income tax treatment. Each of the Lessor, the Agent and the Lenders
agrees that neither it nor any affiliate (whether or not consolidated or
combined returns are filed for such affiliate and the Lessor, the Agent or any
Lender, as the case may be, for federal, state or local income tax purposes)
will at any time take any action, directly or indirectly, or file any return or
other document claiming, or asserting that it is entitled to, the income tax
benefits, deductions and/or credits which, pursuant to the intended income tax
treatment set forth herein, would otherwise be claimed or claimable by the
Company, and that it and any such affiliates will file such returns, maintain
such records, take such actions, and execute such documents (as reasonably
requested by the Company from time to time) as may be appropriate to facilitate
the realization of, and as shall be consistent with, such intended income tax
treatment, and if any such filing, maintenance, action or execution requested by
the Company would result in any additional income tax liability payable by it or
any affiliate, or could reasonably be expected to result in liability payable by
it or any affiliate, unrelated to the intended income tax treatment set forth
herein, then the Company will provide an indemnity against such unrelated income
tax liability satisfactory to the Lessor, the Agent or any Lender, as the case
may be, in its sole opinion.
(c) The Company acknowledges that neither any Lender, the Agent, the
Lessor or any Affiliate of any thereof is making any representation, nor is it
required to make any disclosure, now or in the future, with respect to the
parties' tax or accounting treatment of the Facility or the financing thereof,
nor is any Lender, the Agent, the Lessor or any Affiliate or any thereof
responsible, nor will it be responsible in the future, for tax and accounting
advice with respect to the Facility or the financing thereof, and the Company
has had or will have the benefit of the advice of its own independent tax and
accounting advisors with respect to such matters.
Section 11.17 Compliance. Neither the Lessor, the Agent nor any
----------
Lender has any responsibility for compliance by the Facility or the Company with
any Governmental Requirement or other matters. The Company expressly assumes
such responsibilities and shall indemnify and hold harmless the Lessor, the
Agent and the Lenders with respect thereto in the manner provided in the Lease.
Section 11.18 Facility. Upon payment by the Company of the Purchase
--------
Price in connection with its purchase of all of the Facility in accordance with
the Lease or the Agency Agreement, or the repayment in full of all amounts then
due and
75
owing by the Company under the Operative Documents, and promptly upon the
request of the Company, the Lessor will convey the Facility to the Company or
its designee free and clear of any Lien or other adverse interest of any kind
created by the Lessor or any Person claiming by, through or under the Lessor,
including, without limitation, the Agent and the Lenders (except as consented to
by the Company).
Section 11.19 The Lessor. Except for liability for its own
----------
representations and warranties in Section 7.02 hereof, and for its own gross
negligence and willful misconduct and as otherwise expressly provided in any of
the Operative Documents, the Company, the Agent and the Lenders hereby agree
that nothing contained herein or in the other Operative Documents shall be
construed to create any liability of the Lessor, individually, to perform any
obligation of the Lessor contained herein or in the other Operative Documents.
The Company, the Agent and the Lenders hereby expressly waive all liability on
the part of the Lessor except as provided in the preceding sentence and agree
that the Lessor shall under no circumstances be personally liable for the
payment of the Notes, or any other obligations of the Lessor or be liable for
the breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the Lessor under this Agreement or the other Operative
Documents except as provided above. The Lessor agrees that all payments to be
made to the Agent or the Lessor under any of the Operative Documents which
originate from the Company shall be made directly by the Company to the Agent
and all fundings to be made to the Lessor hereunder shall be made directly to
the Company.
Section 11.20 Lenders. No recourse under any obligation, covenant or
-------
agreement of any Lender contained in this Agreement, any Operative Document or
any agreement or document executed in connection herewith or therewith or the
transactions contemplated hereby or thereby shall be had against any
shareholder, employee, officer, director, affiliate or incorporator of the
Lenders. The obligations, covenants and agreements of the Lenders under any of
the foregoing agreements and documents are solely the corporate obligations of
the Lenders, and the other parties hereto agree to look solely to the Lenders
for payment of all obligations, including, without limitation, any fees or other
amounts due hereunder or thereunder, and claims arising out of or relating to
any of the foregoing agreements and documents. The provisions of this Section
shall survive the termination of this Agreement.
76
The parties hereto have caused this Agreement to be duly executed as of the
day and year first above written.
The Company: SCIENTIFIC-ATLANTA, INC.
By: /s/ X. X. XXXXXX
----------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President-Finance,
Chief Financial Officer & Treasurer
Principal Place of Business:
One Technology Parkway, South,
------------------------------
Norcross, Georgia 30092-2967
------------------------------
Chief Executive Offices:
One Technology Parkway, South,
------------------------------
Norcross, Georgia 30092-2967
------------------------------
77
Lessor: WACHOVIA CAPITAL MARKETS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
Applicable Funding Office for Lessor
Investments:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Agent: WACHOVIA BANK, N.A., as Agent
By: /s/ Xxxxx X. XxXxxxx
----------------------------------------------------
78
EXHIBITS AND SCHEDULES
TO THIS AGREEMENT ARE NOT
FILED WITH THIS EXHIBIT 10(s),
BUT ARE AVAILABLE UPON REQUEST.
