EXHIBIT 10.1
CREDIT AGREEMENT
among
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, except as
expressly stated herein,
but solely as Owner Trustee
for the Aviation Sales Trust 1998-1,
as Borrower,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
as Lenders,
and
NATIONSBANK, NATIONAL ASSOCIATION
as Administrative Agent for the Lenders
Dated as of December 17, 1998
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS.........................................................1
1.1. Definitional Provisions...................................1
1.2. Defined Terms.............................................1
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.....................................2
2.1. Commitments...............................................2
2.2. Notes.....................................................2
2.3. Procedure for Borrowing; Amounts of Borrowings............2
2.4. Unused Fees...............................................4
2.5. Termination, Reduction or Extension of Commitments........4
2.6. Prepayments and Payments..................................4
2.7. Conversion and Continuation Options.......................5
2.8. Interest Rates and Payment Dates..........................6
2.9. Computation of Interest...................................7
2.10. Pro Rata Treatment and Payments...........................7
2.11. Change in Circumstances...................................8
2.12. Compensation.............................................11
2.13. Taxes....................................................11
SECTION 3. REPRESENTATIONS AND WARRANTIES.....................................13
3.1. Due Organization, etc....................................13
3.2. Authorization; No Conflict...............................14
3.3. Enforceability, etc......................................14
3.4. Litigation...............................................14
3.5. Lessor Liens.............................................14
3.6. Assignment...............................................15
3.7. Defaults.................................................15
3.8. Documentation............................................15
3.9. Use of Proceeds..........................................15
3.10. Securities Act...........................................15
3.11. Chief Place of Business..................................15
3.12. Federal Reserve Regulations..............................15
3.13. Investment Company Act...................................15
SECTION 4. CONDITIONS PRECEDENT...............................................16
4.1. Conditions to Effectiveness..............................16
4.2. Conditions to Each Loan..................................16
SECTION 5. COVENANTS..........................................................16
5.1. Other Activities.........................................16
5.2. Ownership of Properties; Indebtedness....................17
5.3. Disposition of Assets....................................17
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5.4. Compliance with Operative Agreements.....................17
5.5. Further Assurances.......................................17
5.6. Notices..................................................17
5.7. Discharge of Liens.......................................17
5.8. Trust Agreement..........................................18
SECTION 6. EVENTS OF DEFAULT..................................................18
SECTION 7. THE ADMINISTRATIVE AGENT...........................................21
7.1. Appointment; Powers, and Immunities......................21
7.2. Delegation of Duties.....................................21
7.3. [Reserved]...............................................21
7.4. Reliance by Administrative Agent.........................21
7.5. Notice of Default........................................22
7.6. Non-Reliance on Administrative Agent and Other Lenders...22
7.7. Indemnification..........................................22
7.8. Rights as Lender.........................................23
7.9. Resignation of Administrative Agent......................23
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL.........................24
8.1. Collection of Payments and Other Amounts.................24
8.2. Certain Remedial Matters.................................26
8.3. Release of Properties, etc...............................26
8.4. Excepted Payments........................................26
SECTION 9. MISCELLANEOUS......................................................26
9.1. Amendments and Waivers...................................26
9.2. Notices..................................................27
9.3. No Waiver; Cumulative Remedies...........................28
9.4. Survival of Representations and Warranties...............28
9.5. Payment of Expenses and Taxes............................29
9.6. Successors and Assigns; Participations and Assignments...29
9.7. Participations...........................................29
9.8. Assignments; Additional Commitment.......................29
9.9. The Register; Disclosure.................................32
9.10. Adjustments; Set-off.....................................32
9.11. Counterparts.............................................33
9.12. Severability.............................................33
9.13. Integration..............................................33
9.14. GOVERNING LAW............................................33
9.15. Submission To Jurisdiction; Waivers......................33
9.16. Acknowledgments..........................................34
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9.17. WAIVERS OF JURY TRIAL....................................34
9.18. Nonrecourse..............................................34
9.19. Usury Savings Clause.....................................35
Schedule 1.2
Exhibit A SERIES A NOTE
Exhibit B SERIES B NOTE
Exhibit C ASSIGNMENT AND ACCEPTANCE
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE RELATING TO THE CREDIT
AGREEMENT
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 17, 1998, is among FIRST
SECURITY BANK, NATIONAL ASSOCIATION, not individually, except as expressly
stated herein, but solely as Owner Trustee for the Aviation Sales Trust 1998-1
(the "Owner Trustee" or the "Borrower"), the several banks and other financial
institutions from time to time parties to this Agreement (the "Lenders"), and
NATIONSBANK, NATIONAL ASSOCIATION, a national banking association, as Lender and
as Administrative Agent.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1. DEFINITIONAL PROVISIONS.
(a) Unless otherwise defined therein, all terms defined in
this Agreement shall have such defined meanings when used in the other
Credit Documents or any certificate or other document made or delivered
pursuant hereto or thereto.
(b) The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) All accounting terms used herein shall have the
respective meanings given to them in accordance with GAAP, unless
otherwise provided herein. All computations and determinations for
purposes of determining compliance with the financial requirements of
this Agreement shall be made in accordance with GAAP, unless otherwise
provided herein.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms or such terms.
1.2. DEFINED TERMS. Each capitalized term used in this Agreement and
not otherwise defined herein shall have the meaning ascribed thereto in Appendix
A to the Participation Agreement (defined below).
(a) "AGREEMENT" shall mean this Credit Agreement, as
amended, supplemented, restated or otherwise modified from time to time
in accordance with the terms hereof.
(b) "PARTICIPATION AGREEMENT" means the Participation
Agreement dated as of the date hereof among Aviation Sales Company, as
Construction Agent and as Lessee, the Owner Trustee, the Holders party
thereto from time to time, the Lenders party thereto from time to time,
and NationsBank, National Association, as Administrative Agent, as such
agreement may be amended, modified, restated or supplemented from time
to time in accordance with the terms thereof.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1. COMMITMENTS.
(a) Subject to the terms and conditions hereof, each Lender
severally agrees to make Series A Loans and Series B Loans to the
Borrower from time to time during the Commitment Period for the purpose
of enabling the Borrower to purchase the Properties and to pay Property
Acquisition Costs, Property Costs and Transaction Expenses, in an
aggregate principal amount as to each Category of Loans at any one time
outstanding not to exceed such Lender's Commitment applicable to such
Category of Loans; PROVIDED that (i) after giving effect to any Loan,
the aggregate outstanding principal amount of all Loans of a specified
Category shall not exceed the Total Commitment for such Category, and
(ii) all borrowings under this SECTION 2.1(A), when aggregated with
corresponding Holder Fundings, shall be allocated as follows: Series A
Loans--88%; Series B Loans--9%; and Holder Fundings--3%.
(b) The Loans may be Base Rate Loans or Eurodollar Loans
having an Interest Period of one, two, three or six months, as
specified in the definition of "Interest Period," subject only to the
limitations specified in such definition and to the provisions of
SECTIONS 2.7, 2.9(C) AND 2.11. Any Loan other than a Eurodollar Loan
shall constitute a Base Rate Loan.
2.2. NOTES. The Loans made by each Lender shall be evidenced by (i) in
the case of Series A Loans, a promissory note of the Borrower, substantially in
the form of EXHIBIT A (the "Series A Note"), and (ii) in the case of Series B
Loans, a promissory note of the Borrower, substantially in the form of EXHIBIT B
(the "Series B Note" and together with the Series A Notes, the "Notes"), in each
case with appropriate insertions as to payee, date and principal amount, payable
to the order of such Lender and in a principal amount equal to the applicable
Commitment of such Lender. Each Lender is hereby authorized to record the date,
Type and amount of each Loan made by such Lender, each continuation thereof,
each conversion of all or a portion thereof to another Type, and the date and
amount of each payment or prepayment of principal thereof on the schedule
annexed to and constituting a part of any of its Notes, and any such recordation
shall constitute PRIMA FACIE evidence of the accuracy of the information so
recorded, PROVIDED that the failure to make any such recordation or any error in
such recordation shall not affect the Borrower's obligations hereunder or under
such Note. Each Note shall (i) be dated the Initial Closing Date (ii) be stated
to mature on the Maturity Date, and (iii) provide for the payment of interest in
accordance with SECTION 2.8.
2.3. PROCEDURE FOR BORROWING; AMOUNTS OF BORROWINGS.
(a) The Borrower may borrow under the Commitments during the
Commitment Period on any Business Day that a Funding may be requested
pursuant to the terms of SECTION 5.2 of the Participation Agreement,
PROVIDED that the Borrower shall give the Administrative Agent
irrevocable notice (which must be received by the Administrative Agent
(i) prior to 11:00 A.M., Charlotte, North Carolina time, three Business
Days prior to the requested Borrowing Date if all or any part of the
requested Loans are to be Eurodollar Loans, or (ii)
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prior to 11:00 A.M., Charlotte, North Carolina time one (1) Business
Day prior to the requested Borrowing Date with respect to any Loans
that are to be Base Rate Loans) specifying (A) the amount to be
borrowed (which on any date shall not be in excess of the then
Available Commitments), (B) the requested Borrowing Date, (C) whether
the borrowing is to be of Eurodollar Loans, Base Rate Loans or a
combination thereof, and (D) if the borrowing is to be a combination of
Eurodollar Loans and Base Rate Loans, the respective amounts of each
Type of Loan; PROVIDED, HOWEVER, that prior to the Completion Date for
any specified Property (1) there shall be only one Interest Period in
effect at any specified time, which Interest Period shall apply to all
amounts then outstanding hereunder with respect to such Property that
are bearing interest based on the Eurodollar Rate and which Interest
Period shall each be one month in length (subject to the adjustments
set forth in the definition of "Interest Period"), (2) the first
Interest Period shall commence on the date that the first Eurodollar
Loan hereunder is extended, (3) each succeeding Interest Period shall
begin on the last day of the preceding Interest Period, and (4) any
amounts borrowed or converted hereunder which are to bear interest
based on the Eurodollar Rate may only be borrowed or converted on the
first day of a permitted Interest Period. Pursuant to the terms of the
Participation Agreement, the Borrower shall be deemed to have delivered
such notice upon the delivery of a notice by the Construction Agent or
the Lessee containing such required information. Upon receipt of any
such notice from the Borrower, the Administrative Agent shall promptly
notify each Lender thereof. Subject to the terms and conditions hereof
(including specifically without limitation SECTION 4.2), each Lender
will make the amount of its pro rata share of each borrowing of each
Category available to the Administrative Agent for the account of the
Borrower at the office of the Administrative Agent specified in SECTION
9.2 prior to 2:00 P.M., Charlotte, North Carolina time, on the
Borrowing Date requested by the Borrower in funds immediately available
to the Administrative Agent. Such borrowing will then be made available
to the Borrower by the Administrative Agent crediting an account
designated, subject to SECTION 11.1 of the Participation Agreement, by
the Borrower on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the Lenders and
in like funds as received by the Administrative Agent. No amount of any
Loan which is repaid or prepaid may be reborrowed hereunder.
(b) The Borrower shall deliver an Allocation Notice to the
Administrative Agent at least five (5) Business Days before any
Scheduled Interest Payment Date. On each date which is three (3)
Business Days prior to any Scheduled Interest Payment Date that occurs
during the Commitment Period, the Borrower shall be deemed to have
requested a Eurodollar Loan pursuant to SECTION 2.3(A) in an amount
equal to the aggregate amount of Allocated Interest due and payable on
such date with respect to the Construction Period Properties. Upon
receipt of any Allocation Notice from the Borrower with respect to such
Allocated Interest, the Administrative Agent shall promptly notify each
Lender thereof. The Borrowing Date with respect to any such borrowing
shall be the relevant Scheduled Interest Payment Date (PROVIDED that
the making of the Loans pursuant to such borrowing shall be subject to
satisfaction of the applicable conditions precedent set forth in
SECTION 4.2) and the proceeds of such borrowing shall be applied to pay
such Allocated Interest. On each such Borrowing Date, the Loan Property
Cost and Construction Loan Property Cost shall be increased by an
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amount equal to the Allocated Interest paid on such date with respect
to such Property with the proceeds of such borrowing.
(c) The aggregate amount of any borrowing constituting a
Eurodollar Loan and any conversion thereof shall be in an amount of at
least $1,000,000.
2.4. UNUSED FEES. Promptly after receipt from the Lessee of payment of
any Unused Fees payable pursuant to the Participation Agreement, the
Administrative Agent shall distribute such payment to the Lenders pro rata
according to their respective Commitment Percentages.
2.5. TERMINATION OR REDUCTION OF COMMITMENTS.
(a) The Borrower shall have the right, upon not less than
five (5) Business Days' written notice to the Administrative Agent, to
terminate the Commitments or, from time to time (but not more than
twice), to permanently reduce the amount of the Commitments, such
reductions to be effected pro rata among Categories of Loans and in
conjunction with simultaneous pro rata reductions of the Holder
Commitments, PROVIDED, that (i) after giving effect to such reduction,
the aggregate outstanding principal amount of the Loans of any Category
shall not exceed the aggregate Commitments of such Category and the
aggregate outstanding amount of Holder Fundings shall not exceed the
aggregate Holder Commitments, (ii) such notice shall be accompanied by
a certificate of the Construction Agent stating that the amount equal
to 97% of aggregate Budgeted Total Loan Property Cost as of the date of
such reduction does not exceed the aggregate amount of Available
Commitments as of such date after giving effect to such reduction and
(iii) unless a Lease Default or Lease Event of Default has occurred and
is continuing, the Lessee or the Construction Agent shall have
consented to such reduction or termination. Any such reduction of
Commitments and Holder Commitments shall be in an aggregate amount
equal to the lesser of (A) $1,000,000 or any integral multiple thereof
or (B) the remaining Available Commitments of each Category and the
remaining Available Holder Commitments, and shall reduce permanently
the Commitments of each Category and the Holder Commitments then in
effect.
(b) On any date on which the Commitments of any Category
shall automatically be reduced to zero pursuant to SECTION 6, the
Borrower shall prepay all outstanding Loans, together with accrued
unpaid interest thereon and all other amounts owing hereunder or under
any other Credit Document.
2.6. PREPAYMENTS AND PAYMENTS.
(a) The Borrower may at any time and from time to time
prepay the Loans, in whole or in part, without premium or penalty, upon
at least two (2) Business Days' irrevocable notice to the
Administrative Agent, specifying the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans, Base Rate Loans or a
combination thereof, and, if a combination thereof, the amount
allocable to each; provided that all prepayments of Loans shall be
applied pro rata between Series A Loans (aggregated as a single amount)
and Series B Loans (aggregated as a single amount). Upon receipt of any
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such notice the Administrative Agent shall promptly notify each Lender
thereof. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein. Amounts
prepaid may not be reborrowed.
(b) If on any date the Administrative Agent or the Lessor
shall receive any payment in respect of (i) any Casualty or
Condemnation pursuant to SECTION 15.1(A) or 15.1(G) of the Lease
(excluding any payments in respect thereof which are payable to Lessee
in accordance with the Lease), or (ii) the Termination Value of any
Property in connection with the delivery of a Termination Notice
pursuant to ARTICLE XVI of the Lease, or (iii) the Termination Value of
any Property in connection with the exercise of the option to purchase
any Property under SECTION 17.11 of the Lease, or (iv) the Termination
Value of any Property in connection with the exercise of a Purchase
Option under SECTION 20.1 of the Lease or the exercise of the option of
the Lessee to transfer the Properties to a third party pursuant to
SECTION 20.1 of the Lease, or (v) any payment required to be made or
elected to be made by the Construction Agent to the Lessor pursuant to
the terms of the Agency Agreement, then in each case, the Borrower
shall be required to prepay the principal balance of the Loans on such
date (such prepayment to be applied pro rata as between Series A Loans
(aggregated as a single amount) and Series B Loans (aggregated as a
single amount)) in an amount equal to ninety-seven percent (97%) of
such payment and shall apply the remaining three percent (3%) of such
payment pro rata to the principal amount of outstanding Holder
Fundings.
(c) Each prepayment of the Loans pursuant to SECTION 2.6(B)
shall be allocated to reduce the Loan Property Cost of the affected
Property. Each prepayment of the Loans pursuant to SECTION 2.6(A) shall
be allocated to reduce the respective Loan Property Costs of all
Properties pro rata according to the Loan Property Costs of such
Properties immediately before giving effect to such prepayment. Any
amounts applied to reduce the Loan Property Cost of any Construction
Period Property pursuant to this paragraph (c) shall also be applied to
reduce the Construction Loan Property Cost of such Property until such
Construction Loan Property Cost has been reduced to zero. Each
prepayment of the Loans pursuant to SECTION 2.6(A) or 2.6(B) shall be
accompanied by a simultaneous prepayment of accrued interest on such
Loan and the simultaneous payment of any amounts payable under SECTION
2.12 hereof in connection with the prepayment of such Loan.
(d) The outstanding principal amount of the Loans shall be
due and payable in full to the Agent for the benefit of each Lender on
the Maturity Date, or earlier as specified herein or in any other
Operative Agreement.
2.7. CONVERSION AND CONTINUATION OPTIONS.
(a) Subject to the restrictions set forth in SECTIONS 2.3,
2.9(C) AND 2.11 the Borrower may:
(i) upon delivery of written notice to the Agent on
or before 11:00 A.M. one (1) Business Day prior to the date
of such conversion, convert all or a part of
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Eurodollar Rate Loans to Base Rate Loans on the last day of
the Interest Period for such Eurodollar Rate Loans; and
(ii) upon delivery of written notice to the Agent
on or before 11:00 A.M. three (3) Business Days' prior to
the date of such election or conversion:
(A) elect a subsequent Interest Period for
all or a portion of Eurodollar Rate Loans to begin
on the last day of the then current Interest Period
for such Eurodollar Rate Loans; and
(B) convert Base Rate Loans to Eurodollar
Rate Loans on any Business Day.
All or any part of outstanding Eurodollar Loans or Base Rate Loans may
be converted as provided herein, PROVIDED that (i) no Base Rate Loan
may be converted into a Eurodollar Loan when any Event of Default has
occurred and is continuing, (ii) no Base Rate Loan may be converted
into a Eurodollar Loan which matures after the Maturity Date, (iii)
during the Commitment Period such conversion may only occur on the
first day of an Interest Period permitted pursuant to the terms of
SECTION 2.3 hereof and (iv) such notice of conversion shall contain an
election by the Borrower of an Interest Period for such Eurodollar Loan
to be created by such conversion and such Interest Period shall be in
accordance with the terms of the definition of the term "Interest
Period" as set forth in Appendix A to the Participation Agreement and
PROVIDED, FURTHER, that with respect to each conversion or continuation
of any Eurodollar Rate Loan, if the Borrower shall fail to give any
required notice or if such continuation is not permitted pursuant to
the preceding provision, such Loan shall be automatically converted to
a Base Rate Loan on the last day of such then expiring Interest Period.
2.8. INTEREST RATES AND PAYMENT DATES.
(a) Each Eurodollar Loan shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum
equal to the Eurodollar Rate for such day for such Loan.
(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate.
(c) If all or a portion of (i) the principal amount of any
Loan, (ii) any interest payable on any Loan or (iii) any other amount
payable hereunder shall not be paid when due (subject to applicable
grace periods) (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum
which is the lesser of (x) the interest rate applicable to such Loan
(or in the case of clause (iii) above, the Base Rate) plus 2% and (y)
the highest interest rate permitted by applicable law, in each case
from the date of such non-payment until such amount is paid in full
(whether after or before judgment).
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(d) Interest shall be payable in arrears on each Scheduled
Interest Payment Date, PROVIDED that (i) interest accruing pursuant to
paragraph (c) of this SECTION 2.8 shall be payable from time to time on
demand and (ii) each prepayment of any Loan shall be accompanied by
accrued interest to the date of such prepayment on the amount prepaid.
2.9. COMPUTATION OF INTEREST.
(a) Interest shall be calculated on the basis established in
SECTION 14.16 of the Participation Agreement, with respect to length of
a "year" and number of days for which interest is accrued. The
Administrative Agent shall as soon as practicable notify the Borrower
and the Lenders of each determination of a Eurodollar Rate. Any change
in the interest rate on a Loan resulting from a change in the Base
Rate, or the Reserve Percentage, shall become effective as of the day
on which such change in the Base Rate or Reserve Percentage becomes
effective. The Administrative Agent shall as practicable notify the
Borrower and the Lenders of the effective date and the amount of each
such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall
be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error.
(c) If the Eurodollar Rate cannot be determined by the
Administrative Agent in the manner specified in the definition of the
term "Eurodollar Rate" referenced in Appendix A to the Participation
Agreement, the Administrative Agent shall give telefacsimile or
telephonic notice thereof to the Borrower and the Lenders as soon as
practicable thereafter. Until such time as the Eurodollar Rate can be
determined by the Administrative Agent in the manner specified in such
definition of such term, no further Eurodollar Loans shall be made or
continued as such at the end of the then current Interest Period and
all Loans shall continue as Base Rate Loans.
2.10. PRO RATA TREATMENT AND PAYMENTS.
(a) Each borrowing by the Borrower from the Lenders
hereunder and any reduction of the Commitments of any Category of the
Lenders shall be made pro rata according to the respective Commitment
Percentages of such Category of the Lenders. Each payment (including
each prepayment) by the Borrower on account of principal of and
interest on the Series A Loans or the Series B Loans, as the case may
be, shall be made pro rata according to the respective outstanding
principal amounts on the Loans of each such Category then held by each
Lender. All payments (including prepayments) to be made by the Borrower
hereunder and under the Notes, whether on account of principal,
interest or otherwise, shall be made without setoff, counterclaim or
other defense and shall be made prior to 12:00 Noon, Charlotte, North
Carolina time, on the due date thereof to the Administrative Agent, for
the account of the Lenders, at the Administrative Agent's office
specified in SECTION 9.2, in Dollars and in immediately available
funds. The Administrative Agent shall distribute such payments to the
Lenders promptly upon receipt in like funds as received. If any payment
hereunder becomes due and payable on a day other than a Business Day,
such
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payment shall be extended to the next succeeding Business Day;
PROVIDED, HOWEVER, if such payment includes an amount of interest
calculated with reference to the Eurodollar Rate and the result of such
extension would be to extend such payment into another calendar month,
then such payment shall be made on the immediately preceding Business
Day. In the case of any extension of any payment of principal pursuant
to the preceding two sentences, interest thereon shall be payable at
the then applicable rate during such extension.
(b) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not
make its share of such borrowing available to the Administrative Agent,
the Administrative Agent may assume that such Lender is making such
amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. If such amount is not made available
to the Administrative Agent by the required time on the Borrowing Date
therefor, such Lender shall pay to the Administrative Agent, on demand,
such amount with interest thereon at a rate equal to the daily average
Federal Funds Rate for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any
amounts owing under this SECTION 2.10(B) shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is
not made available to the Administrative Agent by such Lender within
three Business Days of such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at
the rate as set forth above on demand from the Borrower.
2.11. CHANGE IN CIRCUMSTANCES.
(a) INCREASED COST. If, after the date hereof, the adoption
of any applicable law, rule, or regulation, or any change in any
applicable law, rule, or regulation, 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, or compliance by any Lender (or its Applicable
Funding Office) with any request or directive (whether or not having
the force of law) of any such governmental authority, central bank, or
comparable agency:
(i) shall subject such Lender (or its Applicable
Funding Office) to any tax, duty or other charge with
respect to any Eurodollar Loans, its Notes, or its
obligation to make Eurodollar Loans, or change the basis of
taxation of any amounts payable to such Lender (or its
Applicable Funding Office) under this Agreement or its Notes
in respect of any Eurodollar Loans (other than taxes imposed
on the overall net income of such Lender by the jurisdiction
in which such Lender has its principal office or such
Applicable Funding Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement
(other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate) relating to any
extensions of credit or other assets of, or any deposits
with or other liabilities or commitments of, such
8
Lender (or its Applicable Funding Office), including the
Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its
Applicable Funding Office) or on the London interbank market
any other condition affecting this Agreement, its Notes, any
other Operative Agreement or any of such extensions of
credit or liabilities and commitments;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, converting into,
continuing, or maintaining any Eurodollar Loans or to reduce any sum
received or receivable by such Lender (or its Applicable Funding
Office) under this Agreement or its Notes with respect to any
Eurodollar Loans, then the Borrower shall pay to such Lender on demand
such amount or amounts as will compensate such Lender for such
increased cost or reduction. If any Lender requests compensation by the
Borrower under this SECTION 2.11(A), the Borrower may, by notice to
such Lender (with a copy to the Administrative Agent), suspend the
obligation of such Lender to make or continue loans of the Type with
respect to which such compensation is requested, or to convert Loans of
any other Type into Loans of such Type, until the event or condition
giving rise to such request ceases to be in effect (in which case the
provisions of SECTION 2.11(F) shall be applicable); provided that such
suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) REDUCED RETURN. If, after the date hereof, any Lender
shall have determined that the adoption of any applicable law, rule or
regulation regarding capital adequacy or any change therein or in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
governmental authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of
such Lender's obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption,
change, request, or directive (taking into consideration its policies
with respect to capital adequacy), then from time to time upon demand
by such Lender the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such reduction.
(c) NOTICE; DESIGNATION OF APPLICABLE FUNDING OFFICE. Each
Lender shall promptly notify the Borrower and the Administrative Agent
of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender to compensation pursuant to this
SECTION 2.11 and will designate a different Applicable Funding Office
if such designation will avoid the need for, or materially reduce the
amount of, such compensation and will not, in the judgment of such
Lender, be otherwise disadvantageous to it. Any Lender claiming
compensation under this SECTION 2.11 shall furnish to the Borrower and
the Administrative Agent a statement setting forth the additional
amount or amounts to be paid
9
to it hereunder which shall be conclusive in the absence of manifest
error. In determining such amount, such Lender may use any reasonable
averaging and attribution methods.
(d) LIMITATION ON TYPES OF LOANS. If on or prior to the
first day of any Interest Period for any Eurodollar Loan:
(i) the Administrative Agent determines (which
determination shall be conclusive) that by reason of
circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period; or
(ii) the Majority Lenders determine (which
determination shall be conclusive) and notify the
Administrative Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of
funding Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Borrower prompt notice
thereof specifying the relevant Type of Loans and the relevant amounts
or periods, and so long as such condition remains in effect, the
Lenders shall be under no obligation to make additional Loans of such
Type, continue Loans of such Type, or to convert Loans of any other
Type into Loans of such Type and the Borrower shall, on the last day(s)
of the then current Interest Period(s) for the outstanding Loans of the
affected Type, either prepay such Loans, or convert such Loans into
another Type of Loan in accordance with the terms of this Agreement.
(e) ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Funding Office to make, maintain, or fund Eurodollar Loans
hereunder, then such Lender shall promptly notify the Borrower thereof
and such Lender's obligation to make or continue Eurodollar Loans and
to convert other Types of Loans into Eurodollar Loans shall be
suspended until such time as such Lender may again make, maintain, and
fund Eurodollar Loans (in which case the provisions of SECTION 2.11(F)
shall be applicable).
(f) TREATMENT OF AFFECTED LOANS. If the obligation of any
Lender to make a Eurodollar Loan or to continue, or to convert Loans of
any other Type into, Loans of a particular Type shall be suspended
pursuant to SECTION 2.11(A), (B) or (E) (Loans of such Type being
herein called "Affected Loans" and such Type being herein called the
"Affected Type"), such Lender's Affected Loans shall be automatically
converted into Base Rate Loans on the last day(s) of the then current
Interest Period(s) for Affected Loans (or, in the case of a conversion
required by SECTION 2.11(E), on such earlier date as such Lender may
specify to the Borrower with a copy to the Administrative Agent) and,
unless and until such Lender gives notice as provided below that the
circumstances specified in SECTION 2.11(A), (B) or (E) that gave rise
to such conversion no longer exist:
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(i) to the extent that such Lender's Affected Loans
have been so converted, all payments and prepayments of
principal that would otherwise be applied to such Lender's
Affected Loans shall be applied instead to its Base Rate
Loans; and
(ii) all Loans that would otherwise be made or
continued by such Lender as Loans of the Affected Type shall
be made or continued instead as Base Rate Loans, and all
Loans of such Lender that would otherwise be converted into
Loans of the Affected Type shall be converted instead into
(or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the
Administrative Agent) that the circumstances specified in SECTION
2.11(A), (B) or (E) that gave rise to the conversion of such Lender's
Affected Loans pursuant to this SECTION 2.11(F) no longer exist (which
such Lender agrees to do promptly upon such circumstances ceasing to
exist) at a time when Loans of the Affected Type made by other Lenders
are outstanding, such Lender's Base Rate Loans shall be automatically
converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Loans of the Affected Type, to the
extent necessary so that, after giving effect thereto, all Loans held
by the Lenders holding Loans of the Affected Type and by such Lender
are held pro rata (as to principal amounts, Types, and Interest
Periods) in accordance with their respective Commitments.
2.12. COMPENSATION. Upon the request of any Lender, the Borrower shall
pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or conversion of a Eurodollar
Loan for any reason (including, without limitation, the acceleration of
the Loans pursuant to SECTION 6) on a date other than the last day of
the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any condition precedent specified in
SECTION 4 hereof or SECTION 5 of the Participation Agreement to be
satisfied) to borrow, convert, continue, or prepay a Eurodollar Loan on
the date for such borrowing, conversion, continuation, or prepayment
specified in the relevant notice of borrowing, prepayment,
continuation, or conversion under this Agreement.
2.13. TAXES.
(a) Any and all payments by the Borrower to or for the
account of any Lender or the Administrative Agent hereunder or under
any other Operative Agreement shall be made free and clear of and
without deduction for any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, EXCLUDING, in the case of each Lender
and the Administrative Agent, taxes imposed on its income, capital
gains, net worth, capital or equity and franchise taxes imposed on it,
by the
11
jurisdiction under the laws of which such Lender (or its Applicable
Funding Office or any other office) or the Administrative Agent (as the
case may be) is organized or any political subdivision thereof (all
such non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as
"Non-Excluded Taxes"). If the Borrower shall be required by law to
deduct any Non-Excluded Taxes from or in respect of any sum payable
under this Agreement or any other Operative Agreement to any Lender or
the Administrative Agent, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this SECTION
2.13) such Lender or the Administrative Agent receives an amount equal
to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions, (iii) the Borrower shall
pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law, and (iv) the
Borrower shall furnish to the Administrative Agent, at its address
referred to in SECTION 9.2, the original or a certified copy of a
receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay or cause to be
paid any and all present or future stamp or documentary taxes and any
other excise or property taxes or charges or similar levies which arise
from any payment made under this Agreement or any other Operative
Agreement or from the execution or delivery of, or otherwise with
respect to, this Agreement or any other Operative Agreement
(hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the
Administrative Agent for the full amount of Non-Excluded Taxes and
Other Taxes (including, without limitation, any Non-Excluded Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this SECTION 2.13) paid by such Lender or the Administrative
Agent (as the case may be) and any liability (including penalties,
interest, and expenses) arising therefrom or with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Lender listed on the
signature pages hereof and on or prior to the date on which it becomes
a Lender in the case of each other Lender, and from time to time
thereafter if requested in writing by the Borrower or the
Administrative Agent (but only so long as such Lender remains lawfully
able to do so), shall provide the Borrower and the Administrative Agent
with (i) Internal Revenue Service Form 1001 or 4224, as appropriate, or
any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an income tax
treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the
conduct of a trade or business in the United States, (ii) Internal
Revenue Service Form W-8 or W-9, as appropriate, or any successor form
prescribed by the Internal Revenue Service, and (iii) any other form or
certificate required by any taxing authority (including any certificate
required by Sections 871(h) and 881(c) of the Internal Revenue Code),
certifying that such Lender is entitled to
12
an exemption from or a reduced rate of tax on payments pursuant to this
Agreement or any of the other Operative Agreements.
(e) For any period with respect to which a Lender has failed
to provide the Borrower and the Administrative Agent with the
appropriate form pursuant to SECTION 2.13(D) (unless such failure is
due to a change in treaty, law, or regulation occurring subsequent to
the date on which a form originally was required to be provided), such
Lender shall not be entitled to indemnification under SECTION 2.13(A)
or (B) with respect to Non-Excluded Taxes to the extent that the
provision of such form would have prevented any such Non-Excluded
Taxes; PROVIDED, however, that should a Lender, which is otherwise
exempt from or subject to a reduced rate of withholding tax, become
subject to Non-Excluded Taxes because of its failure to deliver a form
required hereunder, the Borrower shall take such steps as such Lender
(at such Lender's expense) shall reasonably request to assist such
Lender to recover such Non-Excluded Taxes.
(f) If the Borrower is required to pay additional amounts to
or for the account of any Lender pursuant to this SECTION 2.13, then
such Lender will agree to use reasonable efforts to change the
jurisdiction of its Applicable Funding Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if such
change, in the judgment of such Lender, is not otherwise
disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of
Non-Excluded Taxes, the Borrower shall furnish to the Administrative
Agent the original or a certified copy of a receipt evidencing such
payment.
(h) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this SECTION 2.13 shall survive the termination
of the Commitments and the payment in full of the Notes.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, each of the Trust Company and the Owner Trustee
hereby represents and warrants to the Administrative Agent and each Lender as
follows (PROVIDED that the representations in SECTIONS 3.8, 3.9, 3.10, 3.12 and
3.13 are made solely by the Owner Trustee in its capacity as such):
3.1. DUE ORGANIZATION, ETC. It is a national banking association duly
organized, validly existing and in good standing under the laws of the United
States and has the power and authority to enter into and perform its obligations
under the Trust Agreement and (assuming due authorization, execution and
delivery of the Trust Agreement by the Holders) has the trust power and
authority to act as the Owner Trustee and to enter into and perform the
obligations under each of the other Operative Agreements to which the Trust
Company or the Owner Trustee, as the case may be, is or will be a party and each
other agreement, instrument and document to be executed and delivered by it on
or before the date this representation is made or deemed made in connection with
or as
13
contemplated by each such Operative Agreement to which the Trust Company or the
Owner Trustee, as the case may be, is or will be a party.
3.2. AUTHORIZATION; NO CONFLICT. The execution, delivery and
performance of each Operative Agreement to which it is or will be a party,
either in its individual capacity or (assuming due authorization, execution and
delivery of the Trust Agreement by the Holders) as the Owner Trustee, as the
case may be, has been duly authorized by all necessary action on its part and
neither the execution and delivery thereof, nor the consummation of the
transactions contemplated thereby, nor compliance by it with any of the terms
and provisions thereof (a) requires or will require any approval of its
stockholders or any approval or consent of any trustee or holders of any of its
indebtedness or obligations, (b) violates or will violate any current law,
governmental rule or regulation relating to its banking or trust powers, (c)
violates or will violate or result in any breach of or constitute any default
under, or result in the creation of any Lien upon any of its property under, (i)
its charter or by-laws, or (ii) any indenture, mortgage, chattel mortgage, deed
of trust, conditional sales contract, bank loan or credit agreement or other
agreement or instrument to which it is a party or by which it or its properties
may be bound or affected, which violation, breach, default or Lien under clause
(ii) would materially and adversely affect its ability, in its individual
capacity or as Owner Trustee, to perform its obligations under the Operative
Agreements to which it is a party or (d) requires or will require any
Governmental Action by any Governmental Authority regulating its banking or
trust powers.
3.3. ENFORCEABILITY, ETC. The Trust Agreement and, assuming the Trust
Agreement is the legal, valid and binding obligation of the Holders, each other
Operative Agreement to which the Trust Company or the Owner Trustee, as the case
may be, is or will be a party have been, or will be, duly executed and delivered
by the Trust Company or the Owner Trustee, as the case may be, and the Trust
Agreement and each such other Operative Agreement to which the Trust Company or
the Owner Trustee, as the case may be, is a party constitutes, or upon execution
and delivery will constitute, a legal, valid and binding obligation enforceable
against the Trust Company or the Owner Trustee, as the case may be, in
accordance with the terms thereof.
3.4. LITIGATION. There is no action or proceeding pending or, to its
knowledge, threatened to which it is or will be a party, either in its
individual capacity or as the Owner Trustee, before any Governmental Authority
that concerns any Property being purchased or leased or Construction Funding
being funded on the date this representation is made or deemed made or that, if
adversely determined, would materially and adversely affect its ability, in its
individual capacity or as Owner Trustee, to perform its obligations under the
Operative Agreements to which it is a party or would question the validity or
enforceability of any of the Operative Agreements to which it is or will become
a party.
3.5. LESSOR LIENS. Each Property is free and clear of all Lessor Liens.
3.6. ASSIGNMENT. It has not assigned or transferred any of its right,
title or interest in or under the Lease, the Agency Agreement or its interest in
any Property, except in accordance with the Operative Agreements.
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3.7. DEFAULTS. No Default or Event of Default hereunder or under any
other Operative Agreement attributable to it has occurred and is continuing.
3.8. DOCUMENTATION. The Owner Trustee, in its trust capacity, is a
party to no documents, instruments or agreements other than the Operative
Agreements (and any other documents delivered in connection with the Operative
Agreements).
3.9. USE OF PROCEEDS. The Owner Trustee shall use the proceeds of the
Loans solely in accordance with the terms of the Operative Agreements.
3.10. SECURITIES ACT. Neither the Owner Trustee nor any Person
authorized by the Owner Trustee to act on its behalf has offered or sold any
interest in the Trust Estate or the Notes, or in any similar security relating
to a Property, or in any security the offering of which for the purposes of the
Securities Act of 1933, as amended, would be deemed to be part of the same
offering as the offering of the aforementioned securities to, or solicited any
offer to acquire any of the same from, any Person other than in the case of the
Notes, the Lenders, and neither the Owner Trustee nor any Person authorized by
the Owner Trustee to act on its behalf will take any action which would subject,
as a direct result of such action alone, the issuance or sale of any interest in
the Trust Estate or the Notes to the provisions of Section 5 of the Securities
Act of 1933, as amended, or require the qualification of any Operative Agreement
under the Trust Indenture Act of 1939, as amended.
3.11. CHIEF PLACE OF BUSINESS. The Owner Trustee's chief place of
business, chief executive office and office where the documents, accounts and
records relating to the transactions contemplated by this Agreement and each
other Operative Agreement are kept are each located at 00 Xxxxx Xxxx Xxxxxx,
Xxxx Xxxx Xxxx, Xxxx 00000.
3.12. FEDERAL RESERVE REGULATIONS. The Owner Trustee is not engaged
principally in, and does not have as one of its important activities, the
business of extending credit for the purpose of purchasing or carrying any
margin stock (within the meaning of Regulation U of the Board), and no part of
the proceeds of the Loans will be used by it to purchase or carry any margin
stock or to extend credit to others for the purpose of purchasing or carrying
any such margin stock or for any purpose that violates, or is inconsistent with,
the provisions of Regulations T, U or X of the Board.
3.13. INVESTMENT COMPANY ACT. The Owner Trustee is not an "investment
company" or a company controlled by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
SECTION 4. CONDITIONS PRECEDENT
4.1. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Agreement
is subject to the satisfaction of all conditions precedent set forth in SECTION
6 of the Participation Agreement required to be satisfied on or prior to the
Initial Closing Date and to the receipt by each Lender of its Notes, duly
executed by the Borrower.
15
4.2. CONDITIONS TO EACH LOAN. The agreement of each Lender to make any
Loan requested to be made by it on any date is subject to the satisfaction of
the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Borrower in or pursuant to
the Operative Agreements shall be true and correct in all material
respects on and as of such date as if made on and as of such date,
except to the extent that such representations and warranties expressly
relate to an earlier date.
(b) NO DEFAULT. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loans requested to be made on such date.
(c) PARTICIPATION AGREEMENT CONDITIONS. With respect to each
Acquisition Funding and each Construction Funding, the applicable
conditions precedent to the Funding associated therewith specified in
SECTION 5 of the Participation Agreement shall have been satisfied.
(d) HOLDER CONTRIBUTION. With respect to each Acquisition
Funding and each Construction Funding, the Administrative Agent shall
be satisfied that the Lessor shall receive from the Holders on the
relevant Borrowing Date an amount equal to the Holder Funding
associated with such Loan.
(e) ALLOCATION NOTICE. With respect to each Interest Payment
Loan, the Administrative Agent shall have received an Allocation Notice
no later than five (5) Business Days prior to the Borrowing Date in
respect thereof.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date of such Loan that the conditions
contained in this SECTION 4.2 have been satisfied.
SECTION 5. COVENANTS
So long as any Loan or Note remains outstanding and unpaid or any other
amount is owing to any Lender or the Administrative Agent hereunder or under any
other Credit Document and so long as the Commitments have not been terminated:
5.1. OTHER ACTIVITIES. The Borrower shall not conduct, transact or
otherwise engage in, or commit to transact, conduct or otherwise engage in, any
business or operations other than the entry into, and exercise of rights and
performance of obligations in respect of, the Operative Agreements and other
activities incidental or related to the foregoing.
5.2. OWNERSHIP OF PROPERTIES; INDEBTEDNESS. The Borrower shall not own,
lease, manage or otherwise operate any properties or assets other than in
connection with the activities described in SECTION 5.1, or incur, create,
assume or suffer to exist any Indebtedness or other consensual liabilities or
financial obligations other than as may be incurred, created or assumed or as
may exist
16
in connection with the activities described in SECTION 5.1 (including, without
limitation, the Loans and other obligations incurred by the Borrower hereunder).
5.3. DISPOSITION OF ASSETS. The Borrower shall not convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or
assets, whether now owned or hereafter acquired, except to the extent expressly
contemplated by the Operative Agreements.
5.4. COMPLIANCE WITH OPERATIVE AGREEMENTS. The Borrower shall at all
times (a) observe and perform all of the covenants, conditions and obligations
required to be performed by it (whether in its capacity as Lessor, Owner Trustee
or otherwise) under each Operative Agreement to which it is a party and (b)
observe and perform, or cause to be observed and performed, all of the
covenants, conditions and obligations of the Lessor under the Lease, even in the
event that the Lease is terminated at stated expiration following a Lease Event
of Default or otherwise.
5.5. FURTHER ASSURANCES. At any time and from time to time, upon the
written request of the Administrative Agent, and at the sole expense of the
Borrower, the Borrower will promptly and duly execute and deliver such further
instruments and documents and take such further action as the Administrative
Agent or the Majority Lenders may reasonably request for the purpose of
obtaining or preserving the full benefits of this Agreement and the other
Operative Agreements and of the rights and powers herein or therein granted.
5.6. NOTICES. If on any date, a Responsible Officer of the Borrower
shall obtain actual knowledge of the occurrence of a Default or Event of
Default, the Borrower will give written notice thereof to the Administrative
Agent within five (5) Business Days after such date.
5.7. DISCHARGE OF LIENS. Neither the Borrower nor the Trust Company
will create or permit to exist at any time (and each of the Borrower and the
Trust Company will, at its own expense, promptly take such action as may be
necessary duly to discharge, or cause to be discharged), any Lessor Liens
attributable to it on the Properties, PROVIDED that the Borrower and the Trust
Company shall not be required to discharge any Lessor Lien while the same is
being contested in good faith by appropriate proceedings diligently prosecuted
so long as (a) such proceedings shall not involve any material danger of
impairment of any of the Liens contemplated by the Security Documents or of the
sale, forfeiture or loss of any Property or title thereto or any interest
therein or the payment of Rent, (b) such proceedings shall not materially
interfere with the construction of Improvements on any Property, and (c) such
proceedings shall not materially interfere with the disposition of any Property
or title thereto or interest therein or the payment of Rent.
5.8. TRUST AGREEMENT. Without prejudice to any right of the Owner
Trustee under the Trust Agreement to resign, the Owner Trustee (a) agrees not to
terminate or revoke the trust created by the Trust Agreement except as permitted
by ARTICLE VIII of the Trust Agreement, (b) agrees not to amend, supplement,
terminate, revoke or otherwise modify any provision of the Trust Agreement in
any manner which could reasonably be expected to have an adverse effect on the
rights or interests of the Administrative Agent or the Lenders hereunder or
under the other Operative Agreements and (c) agrees to comply with all of the
terms of the Trust Agreement.
17
SECTION 6. EVENTS OF DEFAULT
Upon the occurrence of any of the following specified events (each an
"Event of Default"):
(a) The Borrower shall, except as provided in paragraph (c),
default, and such default shall continue for more than three (3)
Business Days, in the payment when due of any principal or interest on
any Loan; or
(b) Except as provided in paragraphs (a) and (c), the
Borrower shall fail to make the payment of any amount due and payable
owing under any of the Credit Documents within five (5) Business Days
after receipt of notice that such payment is due; or
(c) The Borrower shall default in the payment of any amount
due on the Maturity Date owing under any Credit Document; or
(d) The Borrower shall default in the due performance or
observance by it of any term, covenant or agreement contained in any
Credit Document to which it is a party (other than those referred to in
paragraphs (a), (b) and (c) above), provided that in the case of any
such default under SECTION 5.4, 5.5 or 5.8(C), such default shall
continue for a period of at least thirty (30) days after notice to the
Borrower and the Lessee by the Administrative Agent or the Majority
Lenders; or
(e) Any representation, warranty or statement made or deemed
made by the Borrower herein or in any other Credit Document, or by the
Borrower, or the Lessee or the Construction Agent in the Participation
Agreement, the Lease or the Agency Agreement or in any statement or
certificate delivered or required to be delivered pursuant hereto or
thereto, shall prove to be untrue in any material respect on the date
as of which made or deemed made; or
(f) There shall have occurred and be continuing:
(i) any Lease Event of Default or other "Event of
Default" (as defined in the Participation Agreement); or
(ii) a default by the Owner Trustee in the due
performance or observance by it of any term, covenant or
agreement contained in the Participation Agreement or in the
Trust Agreement to or for the benefit of the Administrative
Agent or a Lender, PROVIDED that in the case of this clause
(ii), such default shall continue unremedied for a period of
at least thirty (30) days after notice to the Owner Trustee
and the Lessee by the Administrative Agent or the Majority
Lenders; or
(iii) any Aviation Sales Credit Agreement Event of
Default; or
(g) The Borrower shall be unable to pay its debts generally
as they become due; file a petition to take advantage of any insolvency
statute; make an assignment for the benefit
18
of its creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole
or any substantial part of its property; file a petition or answer
seeking liquidation, reorganization or arrangement or similar relief
under the federal bankruptcy laws or any other applicable law or
statute; or
(h) Any court of competent jurisdiction shall enter an
order, judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or of the whole or any
substantial part of its properties and such order, judgment or decree
continues unstayed and in effect for a period of sixty (60) days, or
approve a petition filed against the Borrower seeking liquidation,
reorganization or arrangement or similar relief under the federal
bankruptcy laws or any other applicable law or statute of the United
States of America or any state, which petition is not dismissed within
sixty (60) days; or if, under the provisions of any other law for the
relief or aid of debtors, a court of competent jurisdiction shall
assume custody or control of the Borrower or of the whole or any
substantial part of its properties, which control is not relinquished
within sixty (60) days; or if there is commenced against the Borrower
any proceeding or petition seeking reorganization, arrangement or
similar relief under the federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state
which proceeding or petition remains undismissed for a period of sixty
(60) days; or if the Borrower takes any action to indicate its consent
to or approval of any such proceeding or petition; or
(h) Any Security Document shall cease to be in full force
and effect, or shall cease to give the Administrative Agent the Liens,
rights, powers and privileges purported to be created thereby
(including, without limitation, a first priority perfected security
interest in, and Lien on, all of the Properties), in favor of the
Administrative Agent on behalf of itself and the Lenders, superior to
and prior to the rights of all third Persons and subject to no other
Liens (except Permitted Liens); or
(i) The Lease, the Guaranty or any other Operative Agreement
shall cease to be enforceable against the Lessee, the Construction
Agent or any Guarantor; or
(j) One or more judgments or decrees shall be entered
against the Borrower involving a liability of $50,000 or more for any
one such judgment or decree, or $100,000 or more in the aggregate for
all such judgments and decrees, and any such judgments or decrees shall
not have been vacated, discharged or stayed or bonded pending appeal
within thirty (30) days from the entry thereof; or
(k) Any default by any party shall have occurred and be
continuing under any lease or sublease (other than the Lease or any
sublease by Lessee permitted under SECTION 25.2(B) of the Lease) of any
portion of any Property;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (g) above with respect to the Borrower, the Commitments shall
automatically and immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement, the Notes
and any other Credit Documents, shall immediately become due and payable,
19
and (B) if such event is any other Event of Default, either or both of the
following actions may be taken: (i) with the consent of the Majority Lenders,
the Administrative Agent may, or upon the request of the Majority Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Commitments
to be terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) with the consent of the Majority Lenders, the Administrative
Agent may, or upon the request of the Majority Lenders, the Administrative Agent
shall, by notice to the Borrower, declare the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement, the Notes
and any other Credit Documents, to be due and payable forthwith, whereupon the
same shall immediately become due and payable (any of the foregoing occurrences
or actions referred to in clause (A) or (B) above, being referred to as an
"Acceleration"). Except as expressly provided above in this SECTION 6,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
Upon the occurrence of any Event of Default and at any time thereafter
so long as any Event of Default shall be continuing, the Administrative Agent
may, and upon the written instructions of the Majority Lenders shall, exercise
any or all of the rights and powers and pursue any or all of the remedies
available to it hereunder and under the other Credit Documents and the Lease and
shall have any and all rights and remedies available under the Uniform
Commercial Code or any other provision of law (all such remedies being
cumulative and in addition to any other remedies that may be available).
Upon the occurrence of any Event of Default and at any time thereafter
so long as any Event of Default shall be continuing, the Administrative Agent
may, and upon request of the Majority Lenders shall, proceed to protect and
enforce this Agreement, the Notes, the Lease, and the other Operative Agreements
by one or more suits or proceedings in equity, at law or in bankruptcy, whether
for the specific performance of any covenant or agreement contained therein or
in execution or aid of any power granted therein, or for foreclosure hereunder,
or for the appointment of a receiver for any Property, or for the recovery of
judgment for any indebtedness secured thereby, or for the enforcement of any
other remedy available under applicable laws.
The Borrower shall be liable for any and all accrued and unpaid amounts
due hereunder before, during or after the exercise of any of the foregoing
remedies, including without limitation all reasonable legal fees and other
reasonable costs and expenses incurred by the Administrative Agent or any Lender
by reason of the occurrence of any Event of Default or the exercise of remedies
with respect thereto.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1. APPOINTMENT; POWERS, AND IMMUNITIES. Each Lender hereby
irrevocably appoints and authorizes the Administrative Agent to act as its agent
under this Agreement and the other Operative Agreements with such powers and
discretion as are specifically delegated to the Administrative Agent by the
terms of this Agreement and the other Operative Agreements, together with such
other powers as are reasonably incidental thereto. The Administrative Agent
(which term
20
as used in this sentence and in SECTION 7.7 and the first sentence of SECTION
7.6 hereof shall include its Affiliates and its own and its Affiliates'
officers, directors, employees, and agents):
(a) shall not have any duties or responsibilities except
those expressly set forth in this Agreement and shall not be a trustee
or fiduciary for any Lender;
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made
in or in connection with any Operative Agreement or any certificate or
other document referred to or provided for in, or received by any of
them under, any Operative Agreement, or for the value, validity,
effectiveness, genuineness, enforceability, or sufficiency of any
Operative Agreement, or any other document referred to or provided for
therein or for any failure by any Person to perform any of its
obligations thereunder;
(c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Person or the satisfaction of any
condition or to inspect the property (including the books and records)
of any Person;
(d) shall not be required to initiate or conduct any
litigation or collection proceedings under any Operative Agreement; and
(e) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Operative Agreement,
except for its own gross negligence or willful misconduct.
7.2. DELEGATION OF DUTIES. The Administrative Agent may execute any of
its duties under this Agreement and the other Operative Agreements through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
7.3. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall
be entitled to rely upon any certification, notice, instrument, writing, or
other communication (including, without limitation, any thereof by telephone or
telefacsimile) believed by it to be genuine and correct and to have been signed,
sent or made by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel for any other Person),
independent accountants, and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the holder
thereof for all purposes hereof unless and until the Administrative Agent
receives and accepts an Assignment and Acceptance executed in accordance with
SECTION 9.8 hereof. As to any matters not expressly provided for by this
Agreement, the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Lenders, and such instructions shall be
binding on all of the Lenders; PROVIDED, HOWEVER, that the Administrative Agent
shall not be required to take any action that
21
exposes the Administrative Agent to personal liability or that is contrary to
any Operative Agreement or applicable law or unless it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking any such action.
7.4. NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received written notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Majority Lenders; PROVIDED that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interest of the Lenders.
7.5. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrower, the Lessee, the Guarantors and their Subsidiaries and decision to
enter into this Agreement and that it will, independently and without reliance
upon the Administrative Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own analysis and decisions in taking or not taking action under the Operative
Agreements. Except for notices, reports, and other documents and information
expressly required to be furnished to the Lenders by the Administrative Agent
hereunder, the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the affairs,
financial condition, or business of the Borrower, the Lessee or any Guarantor or
any of their Subsidiaries or Affiliates that may come into the possession of the
Administrative Agent or any of its Affiliates.
7.6. INDEMNIFICATION. The Lenders agree to indemnify the Administrative
Agent (to the extent not reimbursed by the Borrower or Lessee, but without
limiting the obligations of the Borrower or the Lessee to do so) ratably in
accordance with their respective Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees), or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the
Administrative Agent (including by any Lender) in any way relating to or arising
out of any Operative Agreement or the transactions contemplated thereby or any
action taken or omitted by the Administrative Agent under any Operative
Agreement; PROVIDED that no Lender shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of the
Person to be indemnified. Without limitation of the foregoing, each Lender
agrees to reimburse the Administrative Agent promptly upon demand for its
ratable share of any costs or expenses payable by the Borrower or Lessee, to the
extent that the Administrative Agent is not promptly reimbursed for such costs
and expenses by the Borrower or Lessee. The agreements contained in this SECTION
7.7 shall survive payment in full of the Loans and all other amounts payable
under this Agreement.
22
7.7. RIGHTS AS LENDER. With respect to its Commitment and the Loans
made by it, NationsBank (and any successor acting as Administrative Agent) in
its capacity as a Lender hereunder shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
acting as the Administrative Agent, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include the Administrative Agent in its
individual capacity. NationsBank (and any successor acting as Administrative
Agent) and its affiliates may (without having to account therefor to any Lender)
accept deposits from, lend money to, make investments in, provide services to,
and generally engage in any kind of lending, trust, or other business with any
of the Borrower, the Lessee, or any Guarantor or any of their Subsidiaries or
Affiliates as if it were not acting as Administrative Agent, and NationsBank
(and any successor acting as Administrative Agent) and its Affiliates may accept
fees and other consideration from any of the Borrower, the Lessee or any
Guarantor or any of their Subsidiaries or Affiliates for services in connection
with this Agreement or otherwise without having to account for the same to the
Lenders.
7.8. RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may
resign at any time by giving notice thereof to the Lenders and the Borrower. In
the event that the Administrative Agent shall neither be a Lender nor a Holder
under the Operative Agreements, the Lessee may require the Administrative Agent
to resign. Upon any such resignation, the Majority Lenders shall have the right
to appoint (with the consent of the Lessee so long as there shall not have
occurred and be continuing a Lease Default or Lease Event of Default, which
consent shall not be unreasonably withheld) a successor Administrative Agent. If
no successor Administrative Agent shall have been so appointed by the Majority
Lenders and shall have accepted such appointment within thirty (30) days after
the retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a commercial bank organized under the laws
of the United States of America having combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor, such successor shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges, and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this SECTION 7 shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL
8.1. COLLECTION OF PAYMENTS AND OTHER AMOUNTS.
(a) The Lessee has agreed pursuant to the terms of the
Participation Agreement to pay directly to the Administrative Agent any
and all Rent and any other amounts of any kind or type owing by the
Lessee to the Lessor or the Owner Trustee under the Lease or any other
Operative Agreement. The Administrative Agent shall, promptly after
receipt, apply in accordance with the terms of this SECTION 8 any such
amounts received from the Lessee and all other payments, receipts and
other consideration received by the Administrative Agent
23
pursuant to the Security Agreement or otherwise received by the
Administrative Agent or any of the Lenders in connection with the
Collateral, the Security Documents or any of the other Operative
Agreements.
(b) Payments and other amounts received by the
Administrative Agent from time to time in accordance with the terms of
subparagraph (a) shall be applied as follows:
(i) Any such payment identified as Basic Rent
shall be applied by the Administrative Agent FIRST, ratably to
the Lenders for application to the payment of interest on the
Loans which is due and payable on such date (other than,
except in the case of an Acceleration, Allocated Interest);
and SECOND, to the Borrower for application ratably to the
payment of accrued Holder Yield with respect to Holder
Property Cost (other than, except in the case of an
Acceleration, Allocated Return); and THIRD, if no Default or
Event of Default has occurred and is continuing, any excess
shall be paid to such Person or Persons as the Lessee may
designate; PROVIDED that if a Default or Event of Default is
in effect, such excess (if any) shall instead be held by the
Administrative Agent until the earlier of (I) the first date
thereafter on which no Default or Event of Default shall be
continuing (in which case such payments shall then be made to
such other Person or Persons designated by the Lessee) and
(II) the Maturity Date (or, if earlier, the date of any
Acceleration) in which case such amounts shall be applied in
the manner contemplated by SECTION 8.1(B)(IV).
(ii) Any such payment or amount described in
SECTION 2.6(B) shall be applied in accordance with the terms
of SECTION 2.6(B).
(iii) Any such payment identified as proceeds of the
sale of any Property, whether pursuant to ARTICLE XXII of the
Lease or pursuant to the exercise of remedies under the
Security Documents or otherwise, and any payment in respect of
excess wear and tear pursuant to SECTION 22.3 of the Lease,
shall be applied by the Administrative Agent FIRST, ratably to
the payment of the principal and interest of the Series B
Loans then outstanding, SECOND, to the Borrower for
application ratably to the payment of the outstanding
principal balance of all Holder Fundings plus all outstanding
Holder Yield with respect to such outstanding Holder Fundings,
THIRD, to the extent such payment exceeds the maximum amount
payable pursuant to the foregoing provisions of this paragraph
(iii), ratably to the payment of the principal and interest of
the Series A Loans plus any and all other amounts owing to the
Administrative Agent and the Lenders hereunder or under any of
the other Operative Agreements and FOURTH, to the extent
moneys remain after application pursuant to clauses FIRST
through THIRD above, to the Borrower for application to any
and all other amounts owing to the Holders or the Borrower
under the Operative Agreements and thereafter as the Borrower
and the Holders shall determine.
(iv) Any such payment identified as a payment
pursuant to SECTION 22.1(B) of the Lease (or otherwise) of the
Maximum Residual Guarantee Amount (or any such lesser amount
as may be required by SECTION 22.1(B) of the Lease) in respect
of
24
the Properties shall be applied by the Administrative Agent
FIRST, ratably to the payment of the principal and interest
balance of the Series A Loans then outstanding, SECOND, to the
payment of any other amounts owing to the Administrative Agent
or the Lenders hereunder or under any of the other Operative
Agreement, and THIRD, to the extent moneys remain after
application pursuant to clauses FIRST and SECOND above, to the
Borrower for application to Holder Fundings and Holder Yield
and any other amounts owing to the Holders or the Borrower
under the Operative Agreements and thereafter as the Borrower
and the Holders shall determine.
(v) Any such payment identified as Supplemental
Rent shall be applied by the Administrative Agent to the
payment of any amounts then owing to the Administrative Agent,
the Lenders, the Holders and the other parties to the
Operative Agreements (or any of them) (other than any such
amounts payable pursuant to the preceding provisions of this
SECTION 8.1(B)) as shall be determined by the Administrative
Agent in its reasonable discretion.
(vi) The Administrative Agent in its reasonable
judgment shall identify the nature of each payment or amount
received by the Administrative Agent and apply each such
amount in the manner specified above.
(c) Upon the termination of the Commitments and the payment
in full of the Loans and all other amounts owing by the Borrower
hereunder or under any other Credit Document, any such moneys remaining
with the Administrative Agent shall be paid to the Borrower for
disbursement in accordance with the Operative Agreements and if not
provided for thereunder to such other Person or Persons as the Borrower
may designate. In the event of an Acceleration it is agreed that, prior
to the application of amounts received by the Administrative Agent in
the order described in SECTION 8.1(B) above, any such amounts shall
first be applied to the payment of (i) any and all sums advanced by the
Administrative Agent in order to preserve the Collateral or preserve
its security interest therein, (ii) the reasonable expenses of
retaking, holding, preparing for sale or lease, selling or otherwise
disposing or realizing on the Collateral, or of any exercise by the
Administrative Agent of its rights under the Security Documents,
together with reasonable attorneys' fees and court costs and (iii) any
other amounts owed to the Administrative Agent under or in connection
with the transactions contemplated by the Operative Agreements
(including without limitation any accrued and unpaid administration
fees).
8.2. CERTAIN REMEDIAL MATTERS. Notwithstanding any other provision of
this Agreement or any other Credit Document:
(a) the Borrower shall at all times retain all rights to
Excepted Payments payable to or for the account of the Owner Trustee or
any of the Holders and to demand, collect or commence an action at law
to obtain such payments and to enforce any judgment with respect
thereto (but not to terminate the Lease as a result thereof); and
25
(b) the Borrower shall at all times retain the right, but
not to the exclusion of the Administrative Agent, (A) to receive from
the Lessee all notices, certificates and other documents and all
information that the Lessee is permitted or required to give or furnish
to the Borrower or the Lessor pursuant to the Lease, the Participation
Agreement or any other Operative Agreement, (B) to retain all rights
with respect to insurance that ARTICLE XIV of the Lease specifically
confers upon the "Lessor", (C) to provide such insurance as the Lessee
shall have failed to maintain or as the Borrower may desire, and (D) to
enforce compliance by the Lessee with the provisions of ARTICLES VIII,
IX, X, XI, XIV AND XVII of the Lease.
8.3. RELEASE OF PROPERTIES, ETC. If the Lessee shall at any time
purchase any Property pursuant to the terms of the Lease, or the Construction
Agent shall purchase any Property pursuant to the Agency Agreement, or if any
Property shall be sold in accordance with ARTICLE XXII of the Lease, then, upon
satisfaction by the Borrower of its obligation to prepay the Loans and to pay
accrued interest on the Loans so prepaid pursuant to SECTION 2.6, the
Administrative Agent is hereby authorized to release such Property from the
Liens created by the Security Documents. In addition, upon the termination of
the Commitments and the payment in full of the Loans and all other amounts owing
by the Borrower, the Lessee and the Construction Agent hereunder or under any
other Operative Agreement the Administrative Agent is hereby authorized to
release all of the Properties from the Liens created by the Security Documents;
provided that such payment shall be sufficient to pay in full the Loans and all
other amounts owing by the Borrower, the Lessee or the Construction Agent
hereunder or under the other Operative Agreements. Upon request of the Borrower
or the Lessee following any such release, the Administrative Agent shall, at the
sole cost and expense of the Borrower or the Lessee, execute and deliver to the
Borrower or the Lessee such documents as the Borrower or the Lessee shall
reasonably request to evidence such release.
8.4. EXCEPTED PAYMENTS. Notwithstanding any other provision of this
Agreement or the Security Documents, any Excepted Payment received at any time
by the Administrative Agent shall be distributed promptly to the Person entitled
to receive such Excepted Payment.
SECTION 9. MISCELLANEOUS
9.1. AMENDMENTS AND WAIVERS. Neither this Agreement nor any other
Credit Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this SECTION 9.1. The
Majority Lenders may, or, with the written consent of the Majority Lenders, the
Administrative Agent may, from time to time, (a) enter into written agreements
with the Borrower, amending, modifying or supplementing the Credit Documents for
the purpose of adding any provisions to the Credit Documents or changing in any
manner the rights of the Administrative Agent, the Lenders or the Borrower
thereunder or (b) waive, on such terms and conditions as the Majority Lenders
may specify in such instrument, any of the requirements of the Credit Documents
or any Default or Event of Default and its consequences. In addition, the
Administrative Agent may from time to time consent in writing to amendments,
supplements, modifications or waivers with respect to any Operative Agreement
(other than the Credit Documents but including the Guaranty Agreement), subject
to receipt of the prior written consent of the Majority Lenders; PROVIDED,
HOWEVER, that so long as the Administrative Agent has no actual knowledge of the
existence of an Event of Default the Administrative Agent may grant waivers or
consents with
26
respect to the terms and requirements of the Participation Agreement without the
prior consent of the Lenders (as such authority of the Administrative Agent is
more specifically described in SECTION 7.1 hereof). Notwithstanding the
foregoing, no such amendment, supplement, modification or waiver shall (i)
reduce the amount or extend the scheduled date of maturity of any Note, or
reduce the stated rate of any interest payable hereunder (other than as a result
of waiving the applicability of any post default increase in interest rates) or
any Unused Fees payable under the Participation Agreement, or extend the
scheduled date of any payment of such interest or Unused Fees, or increase the
amount or extend the expiration date of any Lender's Commitment, or permit any
Loan by any Lender in excess of its Commitment, or elect to decline the funding
of any fees, taxes, expenses, disbursements, Transaction Expenses or
indemnifying payments (as described in SECTIONS 9.1(A), 9.1(B) or 13.5), in each
case without the consent of each Lender directly affected thereby, or (ii)
amend, modify or waive any provision of this SECTION 9.1 or reduce the
percentage specified in the definition of Majority Lenders, or consent to the
assignment or transfer by the Borrower of or release the Borrower from any of
its rights and obligations under the Credit Documents, or release a material
portion of the Collateral (except in accordance with SECTION 8.3), or release
the Lessee from its obligations under the Lease, or release any Guarantor from
its obligations under the Guaranty, or otherwise alter any payment obligations
of the Lessee to the Lessor or the Lessor to the Administrative Agent or the
Lenders under the Operative Agreements, in each case without the written consent
of all the Lenders, or (iii) amend, modify or waive any provision of SECTION 7
without the written consent of the then Administrative Agent. Any such waiver,
amendment, supplement or modification shall be binding upon the Borrower, the
Lessee, the Lenders and the Administrative Agent and all future holders of the
Notes. In the case of any waiver, the Borrower, the Lessee, the Lenders and the
Administrative Agent shall be restored to their former position and rights under
the Credit Documents, and any Default or Event of Default waived shall be deemed
to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
9.2. NOTICES. All notices, requests and demands to or upon the
respective parties hereto shall be in writing and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered,
or three Business Days after being deposited in the mail, postage prepaid, or,
in the case of telefacsimile notice, when received, addressed as follows in the
case of the Borrower and the Administrative Agent, and as set forth in SCHEDULE
1.2 in the case of the other parties hereto, or to such other address as may be
hereafter notified by any party hereto or any future holder of the Notes:
If to the Borrower:
First Security Bank, National Association
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxx X. Xxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
27
If to NationsBank, National Association, as a Lender, to it at the following
address:
(i) if by certified or registered mail:
NationsBank, National Association
X.X. Xxx 000000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx Xxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
(ii) if by hand-delivery, courier service
or telecopy:
NationsBank, National Association
Xxx Xxxxxxxxx Xxxxx
00xx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with all notices of requests for Loans, or conversion, continuation or
prepayment of any Loan, to be sent to:
NationsBank Agency Services
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to the Agent, to it at the respective following address:
(i) if by certified or registered mail:
NationsBank, National Association
X.X. Xxx 000000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx Xxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
28
(ii) if by hand-delivery, courier service or telecopy:
NationsBank, National Association
Xxx Xxxxxxxxx Xxxxx
00xx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
PROVIDED that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to SECTION 2.3, 2.5, 2.6 or 2.7 shall not be effective
until received.
9.3. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right remedy, power or privilege hereunder or under the other Credit Documents
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or future
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
9.4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder, in the other Credit Documents and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall, except as otherwise specifically limited therein, survive the
execution and delivery of this Agreement and the Notes and the making of the
Loans hereunder.
9.5. PAYMENT OF EXPENSES AND TAXES. The Borrower agrees to: (a) pay all
reasonable out-of-pocket costs and expenses of (i) the Administrative Agent,
whether or not the transactions herein contemplated are consummated, in
connection with the negotiation, preparation, execution and delivery of the
Operative Agreements and the documents and instruments referred to therein and
any amendment, waiver or consent relating thereto (including, without
limitation, the reasonable fees and disbursements of counsel for the Agent) and
(ii) the Administrative Agent and each of the Lenders in connection with the
enforcement of the Operative Agreements and the documents and instruments
referred to therein (including, without limitation, the reasonable fees and
disbursements of counsel for the Administrative Agent and for each of the
Lenders) and (b) pay and hold each of the Lenders harmless from and against any
and all present and future stamp and other similar taxes with respect to the
foregoing matters and save each of the Lenders harmless from and against any and
all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to such Lender) to pay such taxes.
9.6. SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS. This
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Lenders, the Administrative Agent, all future holders of the Notes and their
respective successors and assigns, except that the Borrower may
29
not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
9.7. PARTICIPATIONS. Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time sell to one or more
banks, financial institutions or other entities (each, a "Participant")
participating interests in any Loan owing to such Lender, the Notes held by such
Lender, any Commitment of such Lender or any other interest of such Lender
hereunder and under the other Operative Agreements; PROVIDED that any such sale
of a participating interest shall be in a principal amount of at least
$5,000,000. In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this Agreement shall
remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Note for
all purposes under this Agreement and the Notes, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement and
the Notes. In no event shall any Participant have any right to approve any
amendment or waiver of any provision of this Agreement or any other Operative
Agreement, or any consent to any departure by the Borrower or any other Person
therefrom, except to the extent that such amendment, waiver or consent would (a)
reduce the principal of, or interest on, any Loan or Note, or postpone the date
of the final maturity of any Loan or Note, or reduce the amount of any Unused
Fee, in each case to the extent subject to such participation or (b) release all
or substantially all of the Collateral.
9.8. ASSIGNMENTS; ADDITIONAL COMMITMENT.
(a) Any Lender may, in accordance with applicable law, at
any time and from time to time assign to any Lender or any affiliate of
any Lender or, with the consent (subject to SECTION 11.1 of the
Participation Agreement) of the Borrower and the Administrative Agent
(which in each case shall not be unreasonably withheld, conditioned or
delayed), to an additional bank, financial institution or other entity
that (i) is either organized under the laws of the United States or any
state thereof or is a foreign bank that operates a branch office in the
United States and (ii) in either case, is not the Lessee or any
affiliate of the Lessee, (each such permitted assignee being referred
to as a "Purchasing Lender"), all or any part of its rights and
obligations under this Agreement and the other Operative Agreements
pursuant to an Assignment and Acceptance, substantially in the form of
EXHIBIT C, executed by such Purchasing Lender, such assigning Lender
(and, in the case of a Purchasing Lender that is not a Lender or an
affiliate thereof, subject to SECTION 11.1 of the Participation
Agreement, by the Borrower and the Administrative Agent) and delivered
to the Administrative Agent for its acceptance and recording in the
Register; PROVIDED that no such assignment to a Purchasing Lender
(other than any Lender or any affiliate thereof) of the Commitments
hereunder shall be in an aggregate principal amount less than
$5,000,000 (other than in the case of an assignment of all of a
Lender's interests under this Agreement and the Notes), and PROVIDED
FURTHER that the assigning Lender shall simultaneously assign to the
same Purchasing Lender the same percentage of the assigning Lender's
rights and obligations under each of the Operative Agreements (with
respect to each of the Series A Loans and the Series B Loans). Upon
such execution, delivery, acceptance and recording, from and after the
effective date determined pursuant to such Assignment and Acceptance,
(x) the Purchasing Lender
30
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein, and (y) the assigning
Lender thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all of the
remaining portion of an assigning Lender's rights and obligations under
this Agreement, such assigning Lender shall cease to be a party
hereto). Notwithstanding anything to the contrary in this Agreement,
the consent of the Borrower shall not be required, and, unless
requested by the relevant Purchasing Lender or assigning Lender, new
Notes shall not be required to be executed and delivered by the
Borrower, for any assignment which occurs at any time when any of the
events described in SECTION 6(G) shall have occurred and be continuing.
(b) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and a Purchasing Lender (and, in the
case of a Purchasing Lender that is not a Lender or an affiliate
thereof, by the Borrower and the Administrative Agent) together with
payment to the Administrative Agent of a registration and processing
fee of $3,500 (which shall not be payable by the Borrower, except in
connection with an assignment requested in accordance with SECTION
2.14(B)), the Administrative Agent shall (i) promptly accept such
Assignment and Acceptance and (ii) promptly after the effective date
determined pursuant thereto, record the information contained therein
in the Register and give notice of such acceptance and recordation to
the Lenders and the Borrower on or prior to such effective date, the
Borrower, at its own expense, shall execute and deliver to the
Administrative Agent new Notes (in exchange for the Notes of the
assigning Lender), each in an amount equal to the Commitment assumed or
Loans purchased by the relevant Purchasing Lender pursuant to such
Assignment and Acceptance, and, if the assigning Lender has retained a
Commitment or any Loan hereunder, new Notes to the order of the
assigning Lender, each in an amount equal to the Commitment or Loans
retained by it hereunder. Such new Notes shall be dated the Effective
Date and shall otherwise be in the form of the Notes replaced thereby.
(c) Each Purchasing Lender (other than any Lender organized
and existing under the laws of the U.S. or any state thereof, or any
political subdivision of the U.S. or of any such state), by executing
and delivering an Assignment and Acceptance,
(i) agrees to execute and deliver to the
Administrative Agent, as promptly as practicable, four
signed copies (two for the Administrative Agent and two for
delivery by the Administrative Agent to the Borrower) of IRS
Form 1001, Form 4224 or Form W-8 (or any successor form or
comparable form) claiming complete exemption from
withholding and deduction for or on account of U.S. Federal
taxes on or in respect of payments of principal and interest
under or in respect of this Agreement (it being understood
that if the applicable form is not so delivered, payments
under or in respect of this Agreement may be subject to
withholding and deduction);
(ii) represents and warrants to the Borrower and
the Administrative Agent that the form so delivered is true
and accurate and that, as of the effective
31
date of the applicable Assignment and Acceptance, each of
such Purchasing Lender's Lending Offices is entitled to
receive payments of principal and interest under or in
respect of this Agreement without withholding or deduction
for or on account of any taxes imposed by the U.S. Federal
government;
(iii) agrees to deliver annually hereafter to each
of the Borrower and the Administrative Agent not later than
December 31 of the year preceding the year to which it will
apply, two further properly completed signed copies of IRS
Form 1001, Form 4224 or Form W-8 (or any successor form or
comparable form), as appropriate, unless an event has
occurred which renders the relevant form inapplicable (it
being understood that if the applicable form is not so
delivered, payments under or in respect of this Agreement
may be subject to withholding and deduction);
(iv) agrees to promptly notify the Borrower and the
Administrative Agent in writing if it ceases to be entitled
to receive payments of principal and interest under or in
respect of this Agreement without withholding or deduction
for or on account of any taxes imposed by the U.S. or any
political subdivision in or of the U.S. (it being understood
that payments under or in respect of this Agreement may be
subject to withholding and deduction in such event);
(v) acknowledges that in the event it ceases to be
exempt from withholding or deduction of such taxes, the
Administrative Agent may withhold or deduct the applicable
amount from any payments to which such assignee Lender would
otherwise be entitled, without any liability to such
assignee Lender therefor; and
(vi) agrees to indemnify the Borrower and the
Administrative Agent from and against any and all
liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs or expenses that result
from such assignee Lender's breach of any such
representation, warranty or agreement.
(d) Any Lender party to this Agreement may, from time to
time and without the consent of the Borrower or any other Person,
pledge or assign for security purposes any portion of its Loans or any
other interests in this Agreement and the other Credit Documents to any
Federal Reserve Bank.
9.9. THE REGISTER; DISCLOSURE. The Administrative Agent shall maintain
at its address referred to in SECTION 9.2 a copy of each Assignment and
Acceptance delivered to it and a register (the "Register") for the recordation
of the names and addresses of the Lenders, the Commitments of the Lenders, and
the principal amount of the Loans by Series owing to each Lender from time to
time. The entries in the Register shall be conclusive, in the absence of clearly
demonstrable error, and the Borrower, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register as the owner of the
Loan recorded therein for all purposes of this Agreement. The
32
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable notice.
9.10. ADJUSTMENTS; SET-OFF.
(a) If any Lender (a "BENEFITTED LENDER") shall at any time
receive any payment of all or part of its Loans, or interest thereon,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the
nature referred to in SECTION 6(G), or otherwise), in a greater
proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans, or interest
thereon, such Benefitted Lender shall purchase for cash from the other
Lenders a participating interest in such portion of each such other
Lender's Loans, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary
to cause such Benefitted Lender to share the excess payment or benefits
of such collateral or proceeds ratably with each of the Lenders as to
each Category of Loans; PROVIDED, HOWEVER, that if all or any portion
of such excess payment or benefit is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but
without interest. The Borrower agrees that any Lender so purchasing a
participation from a Lender pursuant to this SECTION 9.10 may, to the
fullest extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as
fully as if such Person were the direct creditor of the Borrower in the
amount of such participation.
(b) In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such
rights, upon the occurrence of an Event of Default, each of the
Administrative Agent and each Lender is hereby authorized at any time
or from time to time, without presentment, demand, protest or other
notice of any kind to the Borrower or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other
Indebtedness at any time held or owing by the Administrative Agent or
such Lender (including, without limitation, by branches and agencies of
the Administrative Agent or such Lender wherever located) to or for the
credit or the account of the Borrower against and on account of the
obligations and liabilities of the Borrower to the Administrative Agent
or such Lender under this Agreement or under any of the other Operative
Agreements, including, without limitation, all interests in obligations
of the Borrower purchased by any such Lender pursuant to SECTION
9.10(A), and all other claims of any nature or description arising out
of or connected with this Agreement or any other Operative Agreement,
irrespective or whether or not the Administrative Agent or such Lender
shall have made any demand and although said obligations, liabilities
or claims, or any of them, shall be contingent or unmatured.
9.11. COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telefacsimile), and all of said counterparts taken together shall be deemed
to constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
33
9.12. SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.13. INTEGRATION. This Agreement and the other Operative Documents
represent the agreement of the Borrower, the Administrative Agent, and the
Lenders with respect to the subject mater hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Operative Documents.
9.14. GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF FLORIDA,
WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICT OF
LAWS.
(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH
OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND
FOR ANY COUNTERCLAIM THEREIN.
9.15. SUBMISSION TO JURISDICTION; WAIVERS. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action
or proceeding relating to this Agreement and the other Credit Documents
to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction
of the Courts of the State of Florida and the courts of the United
States of America, in each case sitting in Broward County, Florida, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same,
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail) postage
prepaid, to the Borrower at its address set forth in SECTION 9.2 or at
such other address of which the Administrative Agent shall have been
notified pursuant thereto;
34
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this SECTION 9.15 any special, exemplary, punitive or
consequential damages.
9.16. ACKNOWLEDGMENTS. Borrower hereby acknowledges that:
(a) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement or any of the other Credit Documents,
and the relationship between the Administrative Agent and the Lenders,
on one hand, and the Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(b) no joint venture is created hereby or by the other
Credit Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
9.17. NONRECOURSE. Anything to the contrary contained in this Agreement
or in any other Operative Agreement notwithstanding, neither the Borrower nor
any Holder nor any officer, director or shareholder thereof, nor any of the
Borrower's successors or assigns (all such Persons being hereinafter referred to
collectively as the "Exculpated Persons"), shall be liable in its individual
capacity in any respect for any liability or obligation hereunder or under any
other Operative Agreement including the payment of the principal of, or interest
on, the Notes, or for monetary damages for the breach of performance of any of
the covenants contained in this Agreement, the Notes or any of the other
Operative Agreements. The Administrative Agent and the Lenders agree that, in
the event any of them pursues any remedies available to them under this
Agreement, the Notes or any other Operative Agreement, neither the
Administrative Agent nor the Lenders shall have any recourse against the
Borrower, in its individual capacity, nor any other Exculpated Person, for any
deficiency, loss or claim for monetary damages or otherwise resulting therefrom
and recourse shall be had solely and exclusively against the Trust Estate and
the Lessee; but nothing contained herein shall be taken to prevent recourse
against or the enforcement of remedies against the Trust Estate in respect of
any and all liabilities, obligations and undertakings contained in this
Agreement, the Notes or any other Operative Agreement. Notwithstanding the
provisions of this Section, nothing in this Agreement, the Participation
Agreement, the Notes, the Security Agreement, the Mortgage Instruments or any
other Operative Agreement shall: (a) constitute a waiver, release or discharge
of any indebtedness or obligation evidenced by the Notes or arising under this
Agreement, the Security Agreement, the Mortgage Instruments or the Participation
Agreement or secured by the Security Agreement, the Mortgage Instruments or any
other Operative Agreement, but the same shall continue until paid or discharged;
(b) relieve the Lessor or any Exculpated Person from liability and
responsibility for (but only to the extent of the damages arising by reason of):
(i) active waste knowingly committed by the Lessor or any Exculpated Person with
respect to the Properties or (ii) any fraud, gross negligence, willful
misconduct or willful breach on the part of the Lessor or any such
35
Exculpated Person; (c) relieve the Lessor or any Exculpated Person from
liability and responsibility for (but only to the extent of the moneys
misappropriated, misapplied or not turned over) (i) misappropriation or
misapplication by the Lessor (i.e., application in a manner contrary to any
Operative Agreement) of any insurance proceeds or condemnation award paid or
delivered to the Lessor by any Person other than the Agent, (ii) any deposits or
any escrows or amounts owed by the Lessee under the Agency Agreement held by the
Lessor or (iii) any rents or other income received by the Lessor from the Lessee
that are not turned over to the Agent; or (d) affect or in any way limit the
Agent's rights and remedies under any Operative Agreement with respect to the
Rents and its rights and powers thereunder or to obtain a judgment against the
Lessor's interest in the Properties.
9.18. USURY SAVINGS CLAUSE. Notwithstanding any other provision herein,
the aggregate interest rate charged under any of the Notes, including all
charges or fees in connection therewith deemed in the nature of interest under
applicable law shall not exceed the Highest Lawful Rate (as such term is defined
below). If the rate of interest (determined without regard to the preceding
sentence) under this Agreement or any other Operative Agreement at any time
exceeds the Highest Lawful Rate (as defined below), the outstanding amount of
the Loans made hereunder shall bear interest at the Highest Lawful Rate until
the total amount of interest due hereunder equals the amount of interest which
would have been due hereunder if the stated rates of interest set forth in this
Agreement and the other Operative Agreements had at all times been in effect. In
addition, if when the Loans made hereunder are repaid in full the total interest
due hereunder and under the other Operative Agreements (taking into account the
increase provided for above) is less than the total amount of interest which
would have been due hereunder and thereunder if the stated rates of interest set
forth in this Agreement and in such Operative Agreements had at all times been
in effect, then to the extent permitted by law, the Borrower shall pay to the
Agent an amount equal to the difference between the amount of interest paid and
the amount of interest which would have been paid if the Highest Lawful Rate had
at all times been in effect. Notwithstanding the foregoing, it is the intention
of the Lenders and the Borrower to conform strictly to any applicable usury
laws. Accordingly, if any Lender contracts for, charges, or receives any
consideration which constitutes interest in excess of the Highest Lawful Rate,
then any such excess shall be cancelled automatically and, if previously paid,
shall at such Lender's option be applied to the outstanding amount of the Loans
made hereunder or be refunded to the Borrower. As used in this paragraph, the
term "Highest Lawful Rate" means the maximum lawful interest rate, if any, that
at any time or from time to time may be contracted for, charged, or received
under the laws applicable to such Lender which are presently in effect or, to
the extent allowed by law, under such applicable laws which may hereafter be in
effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.
[Remainder of page intentionally left blank.]
36
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWER:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT INDIVIDUALLY EXCEPT AS
EXPRESSLY STATED HEREIN, BUT SOLELY AS OWNER
TRUSTEE FOR THE AVIATION SALES TRUST 1998-1
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
SIGNATURE PAGE 1 OF 2
LENDERS:
NATIONSBANK, NATIONAL ASSOCIATION,
as Administrative Agent, and as a Lender
By:_____________________________________
Name: __________________________________
Title: _________________________________
SIGNATURE PAGE 2 OF 2
SCHEDULE 1.2
SERIES A SERIES B
NAME OF LENDER COMMITMENT COMMITMENT
-------------- ---------- ----------
NationsBank, National
Association $31,252,056 $ 3,196,233
EXHIBIT A
SERIES A NOTE
$__________________ ____________________
December ___, 1998
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as Owner Trustee for the
Aviation Sales Trust 1998-1 (the "BORROWER"), hereby unconditionally promises to
pay to the order of NATIONSBANK, NATIONAL ASSOCIATION (the "LENDER") at the
office of NationsBank, National Association, as Administrative Agent, located at
Xxxxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 in lawful money
of the United States of America and in immediately available funds, on the
Maturity Date, the principal amount of
(__________________________________________DOLLARS ($_____________), or, if
less, (b) the aggregate unpaid principal amount of all Series A Loans made by
the Lender to the Borrower pursuant to SECTION 2.1 of the Credit Agreement (as
defined below). The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time outstanding
at the rates and on the dates specified in SECTION 2.8 of such Credit Agreement.
The Borrower further agrees to pay all other amounts owing to the Lender
pursuant to the Credit Agreement or any other Credit Document (as defined in the
Credit Agreement).
The holder of this Series A Note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof the date, Type and amount
of each Series A Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof and each conversion of all or a portion thereof to another Type. Each
such endorsement shall constitute PRIMA FACIE evidence of the accuracy of the
information endorsed. The failure to make any such endorsement or any error in
such endorsement shall not affect the obligations of the Borrower in respect of
such Loan.
This Series A Note (a) is one of the Series A Notes referred to in the
Credit Agreement dated as of December 17, 1998 (as amended, supplemented,
restated or otherwise modified from time to time, the "CREDIT AGREEMENT"), among
the Borrower, the Lender, the other banks and financial institutions from time
to time parties thereto, and NationsBank, National Association, as
Administrative Agent, (b) is subject to the provisions of the Credit Agreement
(including, without limitation, SECTION 9.18 thereof) and (c) is subject to
optional and mandatory prepayment in whole or in part as provided in the Credit
Agreement. Capitalized terms not otherwise defined herein shall have the
respective meanings assigned in the Credit Agreement. Reference is hereby made
to the Credit Documents for a description of the properties and assets in which
a security interest has been granted, the nature and extent of the security and
the guarantees, the terms and conditions upon which the security interests and
each guarantee were granted and the rights of the holder of this Series A Note
in respect thereof.
Upon the occurrence of any Event of Default, all amounts then remaining
unpaid on this Series A Note shall become, or may be declared to be, immediately
due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF FLORIDA WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but solely as Owner
Trustee for the Aviation Sales Trust 1998-1
By:_______________________________________________
Name:_____________________________________________
Title:____________________________________________
EXHIBIT B
SERIES B NOTE
$_______________ ____________________
December ___, 1998
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as Owner Trustee for the
Aviation Sales Trust 1998-1 (the "BORROWER"), hereby unconditionally promises to
pay to the order of NATIONSBANK, NATIONAL ASSOCIATION (the "LENDER") at the
office of NationsBank, National Association, as Administrative Agent, located at
Xxxxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, in lawful
money of the United States of America and in immediately available funds, on the
Maturity Date, the principal amount of (a) _________________________________
DOLLARS ($____________), or, if less, (b) the aggregate unpaid principal amount
of all Series B Loans made by the Lender to the Borrower pursuant to SECTION 2.1
of the Credit Agreement (as defined below). The Borrower further agrees to pay
interest in like money at such office on the unpaid principal amount hereof from
time to time outstanding at the rates and on the dates specified in SECTION 2.8
of such Credit Agreement. The Borrower further agrees to pay all other amounts
owing to the Lender pursuant to the Credit Agreement or any other Credit
Document (as defined in the Credit Agreement).
The holder of this Series B Note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof the date, Type and amount
of each Series B Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof and each conversion of all or a portion thereof to another Type. Each
such endorsement shall constitute PRIMA FACIE evidence of the accuracy of the
information endorsed. The failure to make any such endorsement or any error in
such endorsement shall not affect the obligations of the Borrower in respect of
such Loan.
This Series B Note (a) is one of the Series B Notes referred to in the
Credit Agreement dated as of December 17, 1998 (as amended, supplemented,
restated or otherwise modified from time to time, the "CREDIT AGREEMENT"), among
the Borrower, the Lender, the other banks and financial institutions from time
to time parties thereto, and NationsBank, National Association, as
Administrative Agent, (b) is subject to the provisions of the Credit Agreement
(including, without limitation, SECTION 9.18 thereof) and (c) is subject to
optional and mandatory prepayment in whole or in part as provided in the Credit
Agreement. Capitalized terms not otherwise defined herein shall have the
respective meanings assigned in the Credit Agreement. Reference is hereby made
to the Credit Documents for a description of the properties and assets in which
a security interest has been granted, the nature and extent of the security and
the guarantees, the terms and conditions upon which the security interests and
each guarantee were granted and the rights of the holder of this Series B Note
in respect thereof.
Upon the occurrence of any Event of Default, all amounts then remaining
unpaid on this Series B Note shall become, or may be declared to be, immediately
due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF FLORIDA WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but solely as Owner
Trustee for the Aviation Sales Trust 1998-1
By:_______________________________________________
Name:_____________________________________________
Title:____________________________________________
EXHIBIT C
ASSIGNMENT AND ACCEPTANCE
Reference is made to (a) the Credit Agreement, dated as of December 17,
1998 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), restated among First Security Bank, National Association,
not in its individual capacity, but solely as Owner Trustee (the "OWNER TRUSTEE"
or the "BORROWER"), the Lenders named therein, and NationsBank, National
Association, as Administrative Agent [(b) the Amended and Restated Trust
Agreement dated as of December 17, 1998 (as amended, supplemented, restated or
otherwise modified from time to time, the "Trust Agreement"), among the Holders
party thereto and the Owner Trustee]. Unless otherwise defined herein, terms
defined in the Credit Agreement [(or if not defined therein, then the Trust
Agreement)] and used herein shall have the meanings given to them in the Credit
Agreement [(or the Trust Agreement, as the case may be)].
__________________ (the "ASSIGNOR") and __________________ (the
"ASSIGNEE") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), an interest (the "ASSIGNED INTEREST") in and
to (A) the Assignor's rights and obligations under the Credit Agreement with
respect to the credit facilities contained in the Credit Agreement as are set
forth on Schedule 1 hereto (collectively, the "ASSIGNED FACILITY"), in the
respective principal amount for the Assigned Facility as set forth on Schedule
1; [(B) the Assignor's rights and obligations as a Holder under the Trust
Agreement, in the respective Holder Advance and Holder Commitment Amounts set
forth on Schedule 1].
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement, [the Trust Agreement,] any
other Operative Agreement, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, [the Trust
Agreement,] any other Operative Agreement, or any other instrument or document
furnished pursuant thereto, other than that it has not created any adverse claim
upon the interest being assigned by it hereunder and that such interest is free
and clear of any such adverse claim; (b) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or any other obligor or the performance or observance by the Borrower
or any other obligor of any of their respective obligations under the Credit
Agreement, [the Trust Agreement], any other Operative Agreement, or any other
instrument or document furnished pursuant hereto or thereto; (c) attaches the
Series A Note and the Series B Note held by it evidencing the Assigned Facility,
[and the Certificate held by it,] and requests that the Administrative Agent
exchange each such Note [and such Certificate] for a new Note of like Series
payable to the Assignee, [and a new Certificate in the name of Assignee] and (if
the Assignor has retained any interest in the Assigned Facility [and interest as
a Holder]) a new Note of such Series payable to the Assignor in the
respective amounts which reflect the assignment being made hereby (and after
giving effect to any other assignments which have become effective on the
Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received copies of the Operative Agreements and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor, the Administrative Agent
or any other Lender [or Holder] and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Agreement, [the Trust
Agreement,] other Operative Agreements, or any other instrument or document
furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent as defined in each of the Operative Agreements) to take
such action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement, the other Operative Agreements, or any other
instrument or document furnished pursuant hereto or thereto as are delegated to
the Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Participation Agreement, [and] the Credit Agreement [and the Trust
Agreement] and will perform in accordance with their terms all the obligations
which by the terms of the Participation Agreement, [and] the Credit Agreement
[and the Trust Agreement] are required to be performed by it as a Lender [or a
Holder] including, if it is organized under the laws of a jurisdiction outside
the U.S., its obligations pursuant to SECTION 2.13(B) of the Participation
Agreement, SECTION 9.8 of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be
__________, 19__ (the "EFFECTIVE DATE"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent for
acceptance and recording by it in the manner provided pursuant to SECTION 9.9 of
the Credit Agreement effective as of the Effective Date.
5. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees, [Holder
Fundings, Holder Yield] and other amounts) to the Assignee whether such amounts
have accrued prior to the Effective Date or accrue subsequent to the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party
to the Credit Agreement, [and the Trust Agreement] and to the extent provided in
this Assignment and Acceptance, have the rights and obligations of a Lender [or
a Holder] thereunder and under the other Operative Agreements and shall be bound
by the provisions thereof and (b) the Assignor shall, to the extent provided in
this Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement, [Trust Agreement] and the other
Operative Agreements.
7. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
ASSIGNOR:
[NAME OF ASSIGNOR]
By:_______________________________________
Name:_____________________________________
Title:____________________________________
ASSIGNEE:
[NAME OF ASSIGNEE]
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Consent to:
AVIATION SALES COMPANY
By:_____________________________
Name:____________________________
Title:___________________________
NATIONSBANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:_____________________________
Name:____________________________
Title:___________________________
