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CREDIT AGREEMENT
among
FMS TRUST 1997-1,
as Borrower
The Several Lenders
from Time to Time Parties Hereto,
BANKERS TRUST COMPANY,
as Administrative Agent
and
THE CHASE MANHATTAN BANK,
as Syndication Agent
Dated as of March 11, 1998
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS........................................ 1
1.1 Defined Terms.............................................................1
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.................... 1
2.1 Commitments............................................................. 1
2.2 Notes................................................................... 1
2.3 Procedure for Borrowing................................................. 2
2.4 Commitment Fees......................................................... 3
2.5 Prepayments............................................................. 3
2.6 Conversion and Continuation Options..................................... 4
2.7 Minimum Amounts of Tranches............................................. 4
2.8 Interest Rates and Payment Dates........................................ 5
2.9 Computation of Interest................................................. 5
2.10 Inability to Determine Interest Rate.................................... 5
2.11 Pro Rata Treatment and Payments......................................... 6
2.12 Illegality.............................................................. 7
2.13 Legal Requirements...................................................... 7
2.14 Indemnity............................................................... 8
2.15 Taxes................................................................... 9
2.16 Change of Lending Office................................................10
2.17 Mitigation Obligations; Replacement of Lenders..........................10
SECTION 3. REPRESENTATIONS AND WARRANTIES................... 11
SECTION 4. CONDITIONS PRECEDENT............................. 11
4.1 Conditions to Effectiveness............................................ 11
4.2 Conditions to Each Loan................................................ 12
SECTION 5. COVENANTS......................................... 12
5.1 Other Activities....................................................... 12
5.2 Ownership of Property, Indebtedness.................................... 12
5.3 Disposition of Assets.................................................. 12
5.4 Compliance with Operative Agreements................................... 12
5.5 Further Assurances..................................................... 12
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5.6 Notices................................................................ 13
5.7 Discharge of Liens..................................................... 13
SECTION 6. REMEDIAL PROVISIONS............................... 13
6.1 Events of Default...................................................... 13
6.2 Certain Defaults....................................................... 16
SECTION 7. THE ADMINISTRATIVE AGENT ........................ 16
7.1 Appointment............................................................ 16
7.2 Delegation of Duties................................................... 16
7.3 Exculpatory Provisions................................................. 16
7.4 Reliance by Administrative Agent....................................... 17
7.5 Notice of Default...................................................... 17
7.6 Non-Reliance on Administrative Agent and Other Lenders................. 17
7.7 Indemnification........................................................ 18
7.8 Administrative Agent in Its Individual Capacity........................ 18
7.9 Successor Administrative Agent......................................... 18
7.10 Syndication Agent...................................................... 19
SECTION 8. MATTERS RELATING TO PAYMENTS AND COLLATERAL...... 19
8.1 The Account............................................................ 19
8.2 Proceeds of Collateral; Proceeds Remaining in Account.................. 21
8.3 Certain Remedial Matters............................................... 22
8.4 Release of the Property, etc........................................... 22
SECTION 9. MISCELLANEOUS.................................... 23
9.1 Amendments and Waivers................................................. 23
9.2 Notices................................................................ 24
9.3 No Waiver; Cumulative Remedies......................................... 24
9.4 Survival of Representations and Warranties............................. 24
9.5 Successors and Assigns................................................. 24
9.6 The Register; Disclosure............................................... 26
9.7 Adjustments; Set-Off................................................... 26
9.8 Counterparts........................................................... 27
9.9 Severability........................................................... 27
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9.10 Integration............................................................ 27
9.11 Governing Law; Jurisdiction; Consent of Service of Process............. 28
9.12 Acknowledgements....................................................... 28
9.13 WAIVERS OF JURY TRIAL.................................................. 29
9.14 Nonrecourse............................................................ 29
9.15 OREGON LEGAL NOTICE.................................................... 30
9.16 WASHINGTON STATUTORY NOTICE............................................ 30
EXHIBITS
Exhibit A-1 Form of Tranche A Note
Exhibit A-2 Form of Tranche B Note
Exhibit B Form of Assignment and Acceptance
SCHEDULES
Schedule 2.1 Lenders and Commitments
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Schedule 1.1
Lenders and Commitments
Name and Address of Lender Amount of Commitment
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1
CREDIT AGREEMENT, dated as of March 11, 1998 among FMS TRUST 1997-1, a
Delaware business trust (the "Borrower"), the several banks and other financial
institutions from time to time parties to this Agreement (the "Lenders"),
BANKERS TRUST COMPANY, a New York banking corporation, as administrative agent
for the Lenders hereunder (in such capacity, the "Administrative Agent"); THE
CHASE MANHATTAN BANK, a New York banking corporation, as syndication agent (the
"Syndication Agent"); and NATIONSBANK OF TEXAS, N.A., a national banking
association, and SALOMON BROTHERS HOLDING CO INC. as co-documentation agents
(the "Co-Documentation Agents").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. Capitalized terms used herein but not otherwise
defined in this Agreement shall have the respective meanings set forth in Annex
A attached to the Participation Agreement dated as of the date hereof (the
"Participation Agreement"), among Lessee and Construction Agent, the Borrower,
the Owner Trustee, the Investors, the Administrative Agent, the Syndication
Agent and the Lenders. The rules of usage set forth in Annex A to the
Participation Agreement shall apply to this Credit Agreement. Unless otherwise
indicated, references in this Credit Agreement to articles, sections,
paragraphs, clauses, appendices, schedules and exhibits are to the same
contained in this Credit Agreement.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments. (a) Subject to the terms and conditions hereof, each
Lender severally agrees to make revolving credit loans (the "Loans") to the
Borrower from time to time during the Commitment Period for the purpose of
enabling the Borrower to acquire the Properties and to pay Project Costs, in an
aggregate principal amount at any one time outstanding not to exceed the amount
of such Lender's Commitment. During the Commitment Period the Borrower may use
the Commitments by borrowing, prepaying the Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
(b) The Loans may from time to time be (i) Eurodollar Loans, (ii) ABR
Loans, or (iii) a combination thereof, as determined by the Borrower and
notified to the Administrative Agent in accordance with Sections 2.3 and 2.6.
2.2 Notes. Any Lender may request that the Loans made by it be
evidenced by a promissory note of the Borrower, substantially in the form of
Exhibit A-1, in the case of Tranche A Loans (each, a "Tranche A Note"), or
Exhibit A-2, in the case of Tranche B Loans (each, a "Tranche B Note"). In such
event the Borrower shall prepare, execute and deliver to such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) a
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CREDIT AGREEMENT
Tranche A Note and a Tranche B Note. Thereafter, the Loans evidenced by such
Notes and interest thereon shall at all times (including after assignment
pursuant to Section 9.5) be represented by Notes payable to the order of the
payee named therein (or, if such Notes are registered Notes, to such payee and
its registered assigns). Each Note shall (i) be dated the Effective Date (as
defined in the Assignment and Acceptance), (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. (a) The Borrower may borrow under the
Commitments during the Commitment Period on any Business Day, provided that the
Borrower shall deliver to the Administrative Agent an irrevocable Requisition
(which Requisition must be received by the Administrative Agent prior to 12:00
p.m. (noon), New York City time, (a) three Business Days prior to the requested
Borrowing Date, if all or any part of the requested Loans are to be initially
Eurodollar Loans, or (b) on the requested Borrowing Date, otherwise),
specifying, among other things, (i) the amount to be borrowed, (ii) the
requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof and (iv) if the borrowing is to be
entirely or partly of Eurodollar Loans, the respective amounts of each such Type
of Loan and the respective lengths of the initial Interest Periods therefor.
Each Borrowing (other than Borrowings pursuant to Section 2.3(b)) shall be in an
amount equal to (x) in the case of ABR Loans, at least $1,000,000 or a whole
multiple of $500,000 in excess thereof (or, if the then Available Commitments
are less than $1,000,000, such lesser amount) and (y) in the case of Eurodollar
Loans, at least $1,000,000 or a whole multiple of $500,000 in excess thereof.
Upon receipt of any such Requisition from the Borrower, the Administrative Agent
shall promptly notify each Lender thereof. Each Lender will make the amount of
its pro rata share of each borrowing 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., New York City time, on the Funding 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 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.
(b) Notwithstanding anything in the foregoing paragraph 2.3(a) to the
contrary, on each date during the Commitment Period with respect to any
Construction Period Property which is one Business Day prior to any Scheduled
Interest Payment Date, unless otherwise requested by the Borrower at least three
Business Days prior to such Scheduled Interest Payment Date by written notice to
the Administrative Agent, the Borrower shall be deemed to have requested a
Borrowing pursuant to Section 2.3(a) of ABR Loans in an amount equal to the
aggregate amount of Allocated Interest on the Loans due and payable on such date
with respect to the Construction Period Properties; except that, to the extent
such amount of Allocated Interest would cause any Lender's aggregate Loans to
exceed such Lender's Commitment, such amount shall be immediately due and
payable as Supplemental Rent and shall not be included in Allocated Interest.
The Funding 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
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applied to pay such interest. On each such Borrowing Date, the Tranche A/B
Property Cost and the Tranche A/B Construction Property Cost of each
Construction Period Property shall be increased by an amount equal to the
Allocated Interest paid on such date with respect to such Property.
(c) A portion of the principal amount of each Loan made by each Lender
equal to the Aggregate Tranche A Percentage of the principal amount of such Loan
shall be deemed to be a "Tranche A Loan" for the purposes of the Operative
Agreements and the remaining portion of the principal amount of such Loan, if
any, shall be deemed to be a "Tranche B Loan" for the purposes of the Operative
Agreements, provided that payments in respect of the Loans shall be allocated to
reduce the aggregate outstanding principal amount of Tranche A Loans and Tranche
B Loans of each Lender in the manner specified in Section 2.11(a).
2.4 Commitment Fees. Promptly after receipt from the Lessee of payment
of any Commitment 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 Prepayments. (a) The Borrower may at any time and from time to
time prepay the Loans, in whole or in part, without premium or penalty (other
than breakage costs if due under Section 2.14), upon at least three Business
Days' irrevocable notice to the Administrative Agent, specifying the date and
amount of prepayment and whether the prepayment is of Eurodollar Loans, ABR
Loans or a combination thereof, and, if of a combination thereof, the amount
allocable to each. Upon receipt of any such notice the Administrative Agent
shall promptly notify each Lender thereof. If any notice of prepayment is given,
the amount specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to the payment date on the
amount prepaid and amounts, if any, required to be paid pursuant to Section
2.14. Partial prepayments pursuant to this Section 2.5(a) shall be in an
aggregate principal amount of $1,000,000 or a whole multiple of $1,000,000 in
excess thereof.
(b) If on any date the Administrative Agent or the Borrower shall
receive, with respect to any Property, any payment in respect of excess wear and
tear pursuant to Section 21.3 of the Lease (a "Wear and Tear Payment") or any
Net Sales Proceeds Shortfall pursuant to Section 21.3 of the Lease, such payment
shall be applied to prepay the Loans on such date in accordance with Section
8.1(b)(vi).
(c)(i) On any date on which the Lessee is obligated to pay the Lessor
an amount equal to (x) the Termination Value of any Property in connection with
the delivery of a Termination Notice or (y) the Termination Value of any
Property in connection with the exercise of a Purchase Option (including in
respect of a Casualty or Condemnation as set forth in Section 15.1(g) of the
Lease) or the Termination Value for all Properties in connection with the
exercise of the Maturity Date Purchase Option, such amount shall be applied to
prepay the Loans on such date in accordance with Section 8.1(b)(ii), and (ii) on
any date on which any Property shall have been sold pursuant to Section 21 of
the Lease, the Borrower shall prepay
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the Loans on such date in an amount equal to the proceeds of such sale (net of
costs and expenses described in Section 21.2(i) of the Lease) in accordance with
Section 8.1(b)(iii).
(d) Each prepayment of the Loans pursuant to Section 2.5(b) or 2.5(c)
shall be allocated to reduce the Tranche A/B Property Cost of the affected
Property. Each prepayment of the Loans pursuant to Section 2.5(a) shall be
allocated to reduce the respective Tranche A/B Property Costs of all Properties,
pro rata according to the Tranche A/B Property Costs of such Properties
immediately before giving effect to such prepayment. Any amounts applied to
reduce the Tranche A/B Property Cost of any Construction Period Property
pursuant to this paragraph (d) shall also be applied to reduce the Tranche A/B
Construction Property Cost of such Property until such Tranche A/B Construction
Property Cost has been reduced to zero.
(e) In connection with each prepayment of the Loans, the Borrower
shall pay amounts, if any, required to be paid pursuant to Section 2.14.
2.6 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least one Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans by giving
the Administrative Agent at least three Business Days' prior irrevocable notice
of such election. Any such notice of conversion to Eurodollar Loans shall
specify the length of the initial Interest Period or Interest Periods therefor.
Upon receipt of any such notice the Administrative Agent shall promptly notify
each Lender thereof. All or any part of outstanding Eurodollar Loans or ABR
Loans may be converted as provided herein, provided that no ABR Loan may be
converted into a Eurodollar Loan when any Default has occurred and is
continuing, or after the date that is one month prior to the Maturity Date.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
notice to the Administrative Agent, in accordance with the applicable provisions
of the term "Interest Period" set forth in Annex A, of the length of the next
Interest Period to be applicable to such Loans, provided that no Eurodollar Loan
may be continued as such when any Default has occurred and is continuing, or
after the date that is one month prior to the Maturity Date and provided,
further, that if the Borrower shall fail to give any required notice as
described above in this paragraph or if such continuation is not permitted
pursuant to the preceding proviso such Loans shall be automatically converted to
ABR Loans on the last day of such then expiring Interest Period.
2.7 Minimum Amounts of Tranches. Notwithstanding anything to the
contrary in this Agreement, all borrowings, conversions, continuations and
prepayments of Eurodollar Loans and all selections of Interest Periods shall be
in such amounts and be made pursuant to such elections so that, after giving
effect thereto, (a) the aggregate principal amount of the Eurodollar Loans
comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof and (b) no more than three Eurodollar
Tranches shall be outstanding at any one time.
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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 determined for such day plus the
Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the
ABR plus the Applicable Margin.
(c) If all or a portion of (i) the principal amount of any Loan, (ii)
any interest payable thereon or (iii) any other amount payable hereunder shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum which is
equal to the ABR plus 2%, from the date of such non-payment until such amount is
paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Scheduled Interest
Payment Date, provided that (i) interest accruing pursuant to paragraph (c) of
this Section 2.8 shall be payable from time to time on demand and (ii) each
prepayment of the Loans shall be accompanied by accrued interest to the date of
such prepayment on the amount prepaid and breakage costs, if any.
2.9 Computation of Interest. (a) Interest on the Loans shall be
calculated on the basis of a year of 360 days, except that interest computed by
reference to the ABR at times when the ABR is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of each determination of the
Eurodollar Base Rate in respect of any Eurodollar Tranche. Any change in the
interest rate on a Loan resulting from a change in the ABR shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error.
2.10 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the eurodollar market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Base Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Base Rate determined or to be
determined for such Interest Period will not adequately and fairly reflect
the cost to such Lenders (as conclusively
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certified by such Lenders) of making or maintaining their affected
Eurodollar Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as ABR Loans and (y) any Loans that, on the first
day of such Interest Period, were to be converted to or continued as Eurodollar
Loans shall be converted to or continued as ABR Loans. Until such notice has
been withdrawn by the Administrative Agent, no further Eurodollar Loans shall be
made or continued as such, nor shall the Borrower have the right to convert ABR
Loans to Eurodollar Loans.
2.11 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower from the Lenders hereunder and any reduction of the Commitments of the
Lenders shall be made pro rata according to the respective Commitment
Percentages of the Lenders. Except as otherwise provided in Section 2.5, Section
8 or Section 9.1(b), each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Loans shall be made pro rata
according to the respective outstanding principal amounts of the Loans then held
by the Lenders (it being understood that, except as otherwise provided in
Section 8, any payment so made in respect of principal of any Lender's Loans
shall be deemed to ratably reduce the outstanding amount of Tranche A Loans and
Tranche B Loans of such 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 or counterclaim and shall be
made prior to 12:00 Noon, New York City 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 (other
than payments on the Eurodollar Loans) becomes due and payable on a day other
than a Business Day, such payment shall be extended to the next succeeding
Business Day. If any payment on a Eurodollar Loan becomes due and payable on a
day other than a Business Day, the maturity thereof shall be extended to the
next succeeding Business Day unless the result of such extension would be to
extend such payment into another calendar month, in which event 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) The failure of any Lender (such Lender, a "Defaulting Lender") to
make any Loan to be made by it on the date specified therefor shall not relieve
any other Lender (each such other Lender, a "Non-Defaulting Lender") of its
obligation to make its Loans on such date, but neither any Non-Defaulting Lender
nor the Administrative Agent shall be responsible for the failure of any
Defaulting Lender to make a Loan to be made by such Defaulting Lender, and no
Defaulting Lender shall have any obligation to the Administrative Agent or any
Non-Defaulting Lender (without prejudicing the rights of the Borrower against
such Defaulting Lender). Notwithstanding anything set forth herein to the
contrary, so long as a Lender remains a Defaulting Lender, such Lender shall not
have any voting or consent rights
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under or with respect to this Agreement or constitute a "Lender" (or be included
in the calculation of "Required Lenders" hereunder) for any voting or consent
rights under or with respect to this Agreement.
(c) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed Funding Date that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
on such Funding Date in accordance with paragraph (a) of this Section and may,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender is a Defaulting Lender, then such Defaulting
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower
but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Defaulting Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Defaulting Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing and such Lender shall cease to be a
Defaulting Lender.
2.12 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Legal Requirement or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert ABR Loans to Eurodollar Loans shall forthwith be cancelled and (b) such
Lender's Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to ABR Loans on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law. If any such conversion of a Eurodollar Loan occurs on a day
which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to subsection 2.14.
2.13 Legal Requirements. (a) If the adoption of or any change in any
Legal Requirement or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note or any Eurodollar Loan made by it,
or change the basis of taxation of payments to such Lender in respect
thereof;
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate; or
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(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that any change in any Legal
Requirement regarding capital adequacy or in the interpretation or application
thereof or compliance by such Lender or any corporation controlling such Lender
with any request or directive regarding capital adequacy (whether or not having
the force of law) from any Governmental Authority, in each case made subsequent
to the date hereof, has the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of its obligations
hereunder to a level below that which such Lender or such corporation could have
achieved but for such change or compliance (taking into consideration such
Lender's or such corporation's policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then from time to time, the
Borrower shall promptly pay to such Lender such additional amount or amounts as
will compensate such Lender for such reduction.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this Section 2.13, it shall promptly notify the Borrower (with a
copy to the Administrative Agent) of the event by reason of which it has become
so entitled. A certificate setting forth the basis of the calculation and
amounts payable pursuant to this Section 2.13 submitted by such Lender to the
Borrower (with a copy to the Administrative Agent) shall be conclusive in the
absence of manifest error. The agreements in this Section 2.13 shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender
notifies the Borrower of the change in Legal Requirements giving rise to such
increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided further that, if the change in Legal
Requirements giving rise to such increased costs or reductions is retroactive,
then the 180-day period referred to above shall be extended to include the
period of retroactive effect thereof.
2.14 Indemnity. The Borrower shall indemnify each Lender against any
loss or expense which such Lender may sustain or incur as a consequence of (a)
any default by the Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
default by the Borrower in making any prepayment after the Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (c) the
making
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of a prepayment of Eurodollar Loans on a day which is not the last day of an
Interest Period with respect thereto. Such indemnification may include an amount
equal to the excess, if any, of (i) the amount of interest which would have
accrued on the amount so prepaid, or not so borrowed, converted or continued,
for the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of such Interest Period (or, in the case of
a failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Loans provided for herein (excluding, however, the Applicable
Margin included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading
banks in the interbank eurodollar market. A certificate of any Lender setting
forth any amount or amounts which such Lender is entitled to receive pursuant to
this Section and evidencing a loss suffered by such Lender of such amount or
amounts shall be delivered to the Borrower. The provisions of this Section 2.14
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
2.15 Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (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), the Administrative Agent or any
Lender, as the case may be, receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. The Borrower shall also indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount of
Excluded Taxes as the Administrative Agent or such Lender, as the case may be,
shall determine are payable in respect of amounts paid to or on behalf of the
Administrative Agent or such Lender, as the case may be, pursuant to this
Section 2.15. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or the Administrative Agent on its own
behalf or on behalf of a Lender or the Administrative Agent shall be conclusive
absent manifest error.
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CREDIT AGREEMENT
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Lender that is not incorporated under the United States of
America or a state thereof (each a "Foreign Lender") shall:
(i) on the date it becomes a Lender, deliver to the Administrative
Agent (A) two completed copies of United States Internal Revenue Service
Form 1001 or 4224, or successor applicable form, as the case may be, and
shall certify that it is entitled to receive payments under this Agreement
without deduction or withholding (or at a reduced rate of deduction or
withholding) of any United States Federal income taxes and (B) an Internal
Revenue Services Form W-8 or W-9, or successor applicable form, as the case
may be and shall certify that it is entitled to an exemption from United
States backup withholding tax;
(ii) deliver to the Administrative Agent two further copies of any
such form or certification on or before the date that any such
certification described above expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form
previously delivered to it; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the
Administrative Agent;
except that the forms and certificates described in clauses (ii) and (iii) above
shall not be required if any Change in Law has occurred prior to the date on
which any such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Administrative Agent.
2.16 Change of Lending Office. Each Lender agrees that if it makes any
demand for payment under Section 2.13 or 2.15(a), or if any adoption or change
of the type described in subsection 2.12 shall occur with respect to it, it will
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions and so long as such efforts would not be disadvantageous
to it, as determined in its sole discretion) to designate a different lending
office if the making of such a designation would reduce or obviate the need for
the Borrower to make payments under Section 2.13 or 2.15(a), or would eliminate
or reduce the effect of any adoption or change described in subsection 2.12.
2.17 Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.15, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.13, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations
10
CREDIT AGREEMENT
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.13 or 2.15, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If (i) any Lender requests compensation under Section 2.15, or
(ii) the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.13,
or (iii) any Lender defaults in its obligation to fund Loans hereunder, or (iv)
any Lender refuses to consent to certain proposed changes, waivers, discharges
or termination with respect to this Agreement which require the consent of all
Lenders and have been approved by the Required Lenders as (and to the extent)
provided in Section 9.1(b), then the Borrower may, at its sole expense and
effort, if no Default or Event of Default then exists (or, in the case of
preceding clause (iv), no Default or Event of Default will exist immediately
upon giving effect to such replacement), upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.5), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment) (such Assignee a "Replacement
Lender"); provided that (x) the Borrower shall have received the prior written
consent of the Administrative Agent, which consent shall not unreasonably be
withheld, (y) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the Replacement Lender (to the
extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts) and (z) in the case of any such
assignment resulting from a claim for compensation under Section 2.15 or
payments required to be made pursuant to Section 2.13, such assignment will
result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, the Borrower hereby represents and warrants to
the Administrative Agent and each Lender that the applicable representations and
warranties of the Lessor set forth in Section 7 of the Participation Agreement
are true and correct.
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
6.1 of the
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CREDIT AGREEMENT
Participation Agreement required by said Section to be satisfied on or prior to
the Initial Closing Date.
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 conditions precedent specified in Section 6 of the Participation Agreement.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower or the Lessee, as the case may be, 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 the Commitments remain in effect, any Note remains
outstanding and unpaid or any other amount is owing to any Lender or the
Administrative Agent hereunder:
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 Property, 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 in connection with the activities described in Section 5.1 (including
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
authorized 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 under each Operative Agreement to which it is a
party and (b) observe and perform, or cause to be observed and performed, (i)
all of the covenants, conditions and obligations of the Lessee under the Lease,
even in the event the Lease is terminated at its stated expiration, following a
Lease Event of Default or otherwise and (ii) all of the covenants, conditions
and obligations of the Construction Agent relating to the construction of the
Improvements under the Construction Agency Agreement.
5.5 Further Assurances. At any time and from time to time, upon the
written request of the Administrative Agent, the Borrower will, at its own sole
expense, promptly and duly execute and deliver such further instruments and
documents and take such further action as the Administrative Agent or the
Required Lenders may reasonably request for the purpose
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CREDIT AGREEMENT
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 the Borrower shall obtain actual knowledge
of the occurrence of a Default or Event of Default, the Borrower will give
prompt written notice thereof to the Administrative Agent.
5.7 Discharge of Liens. The Borrower will not create or permit to
exist at any time, and will, at its own expense, promptly take such action as
may be necessary duly to discharge, or cause to be discharged, all Lessor Liens
attributable to it, provided, that the Borrower 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 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, and shall not
materially interfere with the construction, use, operation or disposition of
(including, as a result of the exercise of the Purchase Option), the Properties
or title thereto or any interest therein or the payment of Rent.
SECTION 6. REMEDIAL PROVISIONS
6.1 Events of Default. Upon the occurrence of any of the following
specified events (each an "Event of Default"):
(a) The Borrower shall (i) default in the payment when due of any
principal of the Loans or (ii) default, and such default shall continue for
three or more Business Days, in the payment when due of any interest on the
Loans, any Commitment Fee or any other amounts owing hereunder or under any
other Credit Document to which it is a party; or
(b) The Borrower shall fail to observe or perform any covenant,
condition or agreement contained in any Credit Document to which it is a
party (other than the terms, covenants or agreements referred to in
paragraph (a) above) and such default shall have continued unremedied for a
period of thirty days after written notice thereof to the Borrower by the
Administrative Agent or the Required Lenders; or
(c) Any representation, warranty or statement made or deemed made by
the Borrower or any Loan Party in the Participation Agreement or in any
Credit Document, or in any statement or certificate delivered or required
to be delivered pursuant hereto or thereto, shall prove to be incorrect in
any material respect on the date as of which made or deemed made; or
(d)(i) Any Lease Event of Default or Construction Agency Agreement
Event of Default shall have occurred and be continuing or (ii) the Borrower
shall default in the due performance or observance by it of any term,
covenant or agreement contained in the Participation Agreement or the Owner
Trustee shall default in the due performance or observance by it of any
term, covenant or agreement contained in the Trust
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CREDIT AGREEMENT
Agreement, and in each case under this clause (ii), such default shall have
continued unremedied for a period of at least thirty (30) days after
written notice to the Borrower by the Administrative Agent or the Required
Lenders; or
(e) Any Guarantor or any Material Subsidiary of any Guarantor shall
(i) default in making any payment of (A) any principal of or interest on
any one or more items of Indebtedness in an aggregate principal amount of
$10,000,000 or more or (B) any one or more items of Suretyship Liability in
with an aggregate principal amount of $10,000,000 or more (but excluding
the Loans) beyond the period of grace, if any, provided therefor; or (ii)
default in the observance or performance of any other material agreement or
condition relating to any Indebtedness or any Suretyship Liability that
results in an amount of $10,000,000 or more in the aggregate becoming due
prior to its scheduled maturity or that enables or permits (with or without
the giving of notice, the lapse of time or both) the holder or holders of
any Debt of $10,000,000 or more in the aggregate or any trustee or agent on
its or their behalf to cause any such Debt to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity; or
(f)(i) Any Significant Entity or any Investor shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial
part of its assets, or any Significant Entity or Investor shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against any Significant Entity or Investor any case, proceeding
or other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced against any
Significant Entity or Investor any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in
the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days from
the entry thereof; or (iv) any Significant Entity or Investor shall take
any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) any Significant Entity or Investor shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) 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, in favor of the
Administrative Agent on behalf of the Lenders, superior to and prior to the
rights of all third Persons and subject to no other
14
CREDIT AGREEMENT
Liens (except in each case to the extent expressly permitted herein or in
the other Operative Agreements); or
(h) Any Guarantor 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 (including any term, covenant or agreement
incorporated by reference in any Credit Document), or any Guarantee or any
material provision thereof shall cease to be in full force and effect or
any Guarantor or any Person acting by or on behalf of any Guarantor shall
deny or disaffirm such Guarantor's obligations under the Guarantee to which
it is a party; or
(i) One or more judgments or judicial decrees shall be entered against
the Borrower involving a liability of $100,000 or more in the case of any
one such judgment or $250,000 or more in the aggregate for all such
judgments and decrees for the Borrower (to the extent not paid or fully
covered by insurance, provided by a carrier that has acknowledged coverage)
and any such judgments or decrees shall not have been vacated, discharged
or stayed or bonded pending appeal within 90 days from the entry thereof;
or
(j) One or more judgments or decrees shall be entered against any
Guarantor which is a Material Subsidiary involving in the aggregate at any
time an amount in excess of $10,000,000 (in either case not adequately
covered by insurance as to which a solvent and unaffiliated insurance
company has acknowledged coverage) and all such judgments or decrees shall
not have been vacated, discharged, stayed or bonded pending appeal within
30 days from the entry thereof; or
(k) There shall occur one or more ERISA Events which individually or
in the aggregate results in or could reasonably be expected to result in
liability of any of the Loan Parties or any of their respective ERISA
Affiliates in excess of $10,000,000 during the term of this Agreement; or
there shall exist an amount of Unfunded Liabilities of the Loan Parties,
individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans which have a negative amount
of Unfunded Liabilities of the Loan Parties), which exceeds $10,000,000.
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (f) (except as provided in Section 6.2 hereof), automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the Notes
shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken: (i) with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required 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
Required Lenders, the Administrative Agent may, or upon the request of the
Required 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 and the Notes to be due and payable
forthwith,
15
CREDIT AGREEMENT
whereupon the same shall immediately become due and payable (any of the
foregoing occurrences or actions referred to in clause (A) or (B) above, 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.
6.2 Certain Defaults. Notwithstanding anything to the contrary
contained in Section 6.1(f), no Event of Default shall occur under 6.1(f) with
respect to any Investor so long as (i) such Event of Default does not, in the
reasonable judgment of the Required Lenders, threaten to interrupt the Lenders'
timely receipt of all amounts due under this Agreement and each of the other
Operative Agreements whether pursuant to the Assignment of Lease or otherwise
and (ii) no other Event of Default has occurred and is continuing.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1 Appointment. Each Lender hereby irrevocably designates and
appoints Bankers Trust Company as the Administrative Agent of such Lender under
this Agreement, and each such Lender irrevocably authorizes Bankers Trust
Company as the Administrative Agent for such Lender, to take such action on its
behalf under the provisions of this Agree ment and to exercise such powers and
perform such duties as are expressly delegated to the Administrative Agent by
the terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities on the part of the
Administrative Agent shall be read into this Agreement or otherwise exist
against the Administrative Agent. The provisions of this Section 7 are solely
for the benefit of the Administrative Agent and the Lenders and the Borrower
shall have no rights as a third party beneficiary or otherwise under any of the
provisions hereof. In performing its functions and duties hereunder, the
Administrative Agent shall act solely as the agent of the Lenders and does not
assume nor shall be deemed to have assumed any obligation or relationship of
trust or agency with or for the Borrower or any of its successors and assigns.
7.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement by or 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 or any agents or attorneys-in-fact selected by it with reasonable
care.
7.3 Exculpatory Provisions. The Administrative Agent shall not be (i)
liable for any action lawfully taken or omitted to be taken by it or any Person
described in Section 7.2 under or in connection with this Agreement (except for
its or such Person's own gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower contained in this Agreement
or in any certificate, report, statement or other document referred to or
provided for in, or received under or in connection with, this Agreement or for
the value, validity,
16
CREDIT AGREEMENT
effectiveness, genuineness, enforceability or sufficiency of this Agreement, or
for any failure of the Borrower to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Borrower. This Section is intended solely to
govern the relationship between the Administrative Agent, on the one hand, and
the Lenders, on the other.
7.4 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in act ing, or in refraining from acting, under
this Agreement in accordance with a request of the Required Lenders, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.
7.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default unless the
Administrative Agent has received notice from a Lender or the Borrower referring
to this Agreement, describing such 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 promptly give notice thereof to the
Lenders. The Administrative Agent shall take such action with respect to such
Default as shall be directed by the Required Lenders.
7.6 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent, nor any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereafter taken, including, without limitation, any review
of the affairs of the Borrower, shall be deemed to constitute any representation
or warranty by the Administrative Agent. Each Lender represents and warrants to
the Administrative Agent that it has, independently and without reliance upon
the Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, opera tions, property, prospects, financial and
other conditions and creditworthiness of the Borrower and made its own decision
to make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in
17
CREDIT AGREEMENT
taking or not taking action under this Agreement, and to make such investigation
as it deems necessary to inform itself as to the business, operations, property,
prospects, financial and other condition and creditworthiness of the Borrower.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, property, prospects,
financial and other condition or creditworthiness of the Borrower which may come
into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
7.7 Indemnification. The Lenders agree to indemnify the Administrative
Agent and its officers, directors, employees, representatives and agents (to the
extent not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their Applicable Percentage, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disburse ments of any kind or
nature whatsoever (including, without limitation, the fees and disbursements of
counsel for the Administrative Agent or such Person in connection with any
investigative, administrative or judicial proceeding commenced or threatened,
whether or not the Administrative Agent or such Person shall be designated a
party thereto) that may at any time (including, without limitation, at any time
following the payment of the Obligations) be imposed on, incurred by or asserted
against the Administrative Agent or such Person as a result of, or arising out
of, or in any way related to or by reason of, any of the Transactions or the
execution, delivery or performance of this Agreement (but excluding any such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the gross negligence or
willful misconduct of the Administrative Agent or such Person as finally
determined by a court of competent jurisdic tion).
7.8 Administrative Agent in its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder. With respect
to Loans made or renewed by it, the Administrative Agent shall have the same
rights and powers under this Agreement as any Lender and may exercise the same
as though it were not the Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
7.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Borrower and the
Lenders. If the Administrative Agent shall resign as Administrative Agent under
this Agreement, then the Required Lenders during such 30-day period shall
appoint from among the Lenders a successor agent, whereupon such successor agent
shall succeed to the rights, powers and duties of the Administrative Agent and
the term "Administrative Agent" shall mean such successor agent, effective upon
its appointment, and the former Administrative Agent's rights, powers and duties
as Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this
18
CREDIT AGREEMENT
Agreement. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 7 and Section 9.3 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement.
7.10 Syndication Agent. Without limiting any provision contained in
this Section 7, the Syndication Agent shall not have, except as to and to the
limited extent expressly provided herein, any obligation, responsibility or duty
under this Agreement other than those applicable to all Lenders as such. Each
Lender acknowledges that it has not relied, and will not rely, on the
Syndication Agent in deciding to enter into this Agreement or in taking or not
taking action hereunder.
7.11 Co-Documentation Agents. Without limiting any provision contained
in this Section 7, the Co-Documentation Agents shall not have, except as to and
to the limited extent expressly provided herein, any obligation, responsibility
or duty under this Agreement other than those applicable to all Lenders as such.
Each Lender acknowledges that it has not relied, and will not rely, on the
Co-Documentation Agents in deciding to enter into this Agreement or in taking or
not taking action hereunder.
SECTION 8. MATTERS RELATING TO PAYMENTS AND COLLATERAL
8.1 The Account. (a) The Administrative Agent shall establish an
account (the "Account") into which the Administrative Agent shall deposit all
payments, receipts and other consideration of any kind whatsoever (other than
upon any sale or disposition of the Collateral following an Event of Default)
paid under the Lease and received by the Administrative Agent pursuant to the
Assignment of Lease.
(b) Except as otherwise provided in Section 8.2, payments deposited
from time to time in the Account shall be paid out as follows:
(i) Any such payment identified by the Lessee as Basic Rent shall
be paid out of the Account by the Administrative Agent on the relevant
Specified Interest Payment Date, and shall be applied, first, ratably to
the payment of interest then due and payable on the Loans until such
amounts are paid in full, second, to the payment to the Borrower of an
amount equal to the Investor Yield then due and payable under the Operative
Agreements until such amount is paid in full, and, third, the remainder of
such amount shall be paid out of the Account by the Administrative Agent to
such Person or Persons as the Borrower may designate.
(ii) Any payment identified by the Lessee as a payment in respect
of the Termination Value of any Property pursuant to Section 15 or Section
20 of the Lease shall be paid out of the Account by the Administrative
Agent promptly after receipt, and shall be applied, first, ratably to the
payment of the principal of Tranche B Loans then outstanding in an amount
not to exceed the product of (x) the Tranche A/B Property Cost in respect
of such Property and (y) the Tranche B Percentage in respect
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CREDIT AGREEMENT
of such Property and all interest due and payable on such amount, second,
to the payment to the Borrower of an amount not to exceed the outstanding
Investor Property Cost in respect of such Property and the Investor Yield
due and payable on such amount, third, ratably to the payment of the
principal of Tranche A Loans then outstanding in an amount not to exceed
the product of (x) the Tranche A/B Property Cost in respect of such
Property and (y) the Tranche A Percentage in respect of such Property and
all interest due and payable on such amount, and fourth, the remainder of
such amount shall be paid out of the Account by the Administrative Agent to
the Lessee. Notwithstanding the foregoing, the Investors shall not be
entitled to any payment described in this clause (ii) prior to the
Construction Period Termination Date unless the event causing such
prepayment results in the payment of all amounts due hereunder and under
the other Operative Agreements.
(iii) Any payment identified by the Lessee as proceeds of the
sale of any Property pursuant to Section 21 of the Lease (but in any event
excluding costs and expenses described in Section 21.2(i) of the Lease)
("Net Sale Proceeds") shall be paid out of the Account by the
Administrative Agent promptly after receipt, and shall be applied, first,
ratably to the payment of the principal of Tranche B Loans then outstanding
in an amount not to exceed the product of (x) the Tranche A/B Property Cost
in respect of such Property and (y) the Tranche B Percentage in respect of
such Property and all interest then due and payable on such amount, second,
to the payment to the Borrower of an amount not to exceed the outstanding
Investor Property Cost in respect of such Property and the Investor Yield
then due and payable on such amount, third, ratably to the payment of the
principal of Tranche A Loans then outstanding in an amount not to exceed
the product of (x) the Tranche A/B Property Cost in respect of such
Property and (y) the Tranche A Percentage in respect of such Property and
all interest due and payable on such amount, and fourth, the remainder of
such amount shall be paid out of the Account by the Administrative Agent to
the Lessee.
(iv) Any payment identified by the Lessee as the Maximum Residual
Guarantee Amount in respect of any Property shall be paid out of the
Account by the Administrative Agent promptly after receipt and shall be
applied ratably to the payment of the principal of Tranche A Loans then
outstanding in respect of such Property.
(v) Any payment identified by the Lessee as a Wear and Tear
Payment or any Net Sale Proceeds Shortfall pursuant to Section 21.3 of the
Lease shall be paid out of the Account by the Administrative Agent promptly
after receipt, and shall be applied, first, ratably to the payment of the
principal of Tranche B Loans then outstanding in an amount equal to the
product of the Tranche B Percentage with respect to such Property and the
Tranche A/B Property Cost with respect to such Property (in each case
determined as of the date of sale of such Property pursuant to Section 22
of the Lease immediately prior to giving effect thereto) and all interest
due and payable on such amount, and second, the remainder of such amount
shall be paid out of the Account by the Administrative Agent to the
Borrower.
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CREDIT AGREEMENT
(vi) Any payment identified by the Lessee as Supplemental Rent
(other than any Maximum Residual Guarantee Amount or Excepted Payment)
shall be paid out of the Account by the Administrative Agent promptly after
receipt, and shall be applied to the payment of any amounts then owing to
the Administrative Agent, the Lenders, the Investors 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 designated by the Lessee (or, in the absence of such designation,
ratably according to the respective amounts so owing of which the
Administrative Agent has received written notice).
In the event that the Lessee shall fail to identify the nature of any payment
deposited by them in the Account, or the Administrative Agent in its reasonable
judgment shall determine that the identification made by the Lessee is incorrect
or inappropriate, the nature of such payment shall instead be identified by the
Administrative Agent in its reasonable judgment and applied in the manner
specified above; provided, that in the event that the Administrative Agent
identifies such payment as an Excepted Payment, such payment shall be paid out
of the Account by the Administrative Agent to such Person or Persons entitled to
receive such Excepted Payments.
(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 moneys remaining in the Account shall be paid to the
Borrower or such other Person or Persons as the Borrower may designate.
8.2 Proceeds of Collateral; Proceeds Remaining in Account. (a) All
moneys collected by the Administrative Agent upon any sale or other disposition
of the Collateral pursuant to any Security Document, together with all other
moneys received by the Administrative Agent thereunder and (b) all moneys
contained in the Account on the date of an Acceleration or on the Maturity Date,
or deposited in the Account thereafter, shall be applied as follows:
First, to the payment of (x) any and all sums advanced by the
Administrative Agent in order to preserve the Collateral or preserve its
security interest therein and (y) the 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;
Second, to the payment of the amounts then due and unpaid for
principal of the Tranche B Loans, according to the amounts due and payable
on the Tranche B Loans in respect of principal;
Third, to the payment of the amounts then due and unpaid for principal
of the Tranche A Loans according to the amounts due and payable on the
Tranche A Loans in respect of principal;
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CREDIT AGREEMENT
Fourth, to the payment of the amounts then due and unpaid for interest
accrued on the Tranche B Loans and the Tranche A Loans, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Tranche B Loans and the Tranche A Loans in respect of
principal;
Fifth, to the payment of all amounts then due and payable on account
of the Investor Yield;
Sixth, to the payment of an amount equal to the aggregate outstanding
Investor Contributions; and
Seventh, to the extent moneys remain after application pursuant to
clauses First through Sixth above, to the Lessee or to whomever may be
lawfully entitled to receive such surplus.
8.3 Certain Remedial Matters. (a) Notwithstanding any other provision
of this Agreement or any other Credit Document:
(i) the Borrower shall at all times to the exclusion of the
Administrative Agent retain (A) all rights to Excepted Payments and to
demand, collect or commence an action at law to obtain such payments and to
enforce any judgment with respect thereto and (B) all of its rights under
the Participation Agreement; and
(ii) 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 inspect the Properties and otherwise exercise
rights of the "Lessor" under Section 10.2 of the Lease, (C) to retain all
rights with respect to insurance that Section 14 of the Lease specifically
confers upon the "Lessor", (D) to provide such insurance as the Lessee
shall have failed to maintain or as the Borrower may desire, (E) to enforce
compliance by the Lessee with the provisions of Sections 8, 9, 10, 11, 14
and 21 of the Lease, and (F) subject to the other applicable provisions of
this Agreement, including, without limitation, Section 8.3(c) hereof, to
perform for the Lessee under Section 17 of the Lease.
8.4 Release of the Property, etc. (a) If the Lessee shall at any time
purchase any Property pursuant to Section 15.1 of the Lease or exercise its
Purchase Option with respect to the Properties under Section 20 of the Lease, or
if the Properties shall be sold in accordance with Section 21 of the Lease,
then, upon satisfaction by the Borrower of its obligation to prepay the Loans
pursuant to Section 2.5(c) and to pay accrued interest on the Loans so prepaid
pursuant to Section 2.8, the Administrative Agent shall release the relevant
Properties 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 or the Guarantors hereunder or under any
other Operative Agreement, the Administrative Agent shall release all of the
Properties from the Liens created by the
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CREDIT AGREEMENT
Security Documents. Upon request of the Borrower following any such release, the
Administrative Agent shall, at the sole cost and expense of the Borrower,
execute and deliver to the Borrower or the Lessee such documents as the Borrower
shall reasonably request to evidence such release.
(b) Notwithstanding anything to the contrary herein, upon the
termination of the Commitments and the payment in full of (i) the Loans and all
other amounts owing by the Borrower or any Guarantor hereunder or under any
other Operative Agreement and (ii) all amounts owing by the Lessee to the Lessor
or to any other Person under the Operative Agreements, all remaining moneys in
the Account shall be paid out to the Lessee.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. (a) Except as provided in the
Intercreditor Agreement, no Operative Agreement nor any terms hereof or thereof
may be changed, waived, discharged or terminated, nor any Collateral released,
unless such change, waiver, discharge, termination or release is in writing
signed by the Required Lenders, provided that no such change, waiver, discharge,
termination or release shall, without the consent of each Lender (other than a
Defaulting Lender), (i) extend the final scheduled maturity of any Loan beyond
the Maturity Date, or reduce the rate or extend the time of payment of interest
or fees hereunder, or reduce the principal amount thereof (except to the extent
repaid in cash), (ii) amend, modify or waive any provision of this Section 9.1,
(iii) reduce the percentage specified in the definition of Required Lenders,
(iv) consent to the assignment or transfer by the Borrower of any of its rights
and obligations under this Agreement, (v) release any Guarantor from its
obligations under any Guarantee to which it is a party or amend any Guarantee to
materially reduce any Guarantor's obligations thereunder or (vi) release all or
a substantial portion of the Collateral; provided further that no such change,
waiver, discharge, termination or release shall (x) increase the Commitment of
any Lender without the consent of such Lender (it being understood that waivers
or modifications of conditions precedent, covenants, Defaults or Events of
Default or of a mandatory reduction in the aggregate Commitments shall not
constitute an increase of the Commitment of any Lender, and that an increase in
the available portion of any Commitment of any Lender shall not constitute an
increase of the Commitment of such Lender) or (y) without the consent of the
Administrative Agent, amend, modify or waive any provision of Section 7 or any
other provision as the same relates to the Administrative Agent. No failure or
delay by the Administrative Agent or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any
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CREDIT AGREEMENT
Default or Event of Default, regardless of whether the Administrative Agent or
any Lender may have had notice or knowledge of such Default or Event of Default
at the time.
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement contemplated by clauses
(i) through (iv), inclusive, of the first proviso of Section 9.1(a), the consent
of the Required Lenders is obtained but the consent of one or more of such other
Lenders whose consent is required is not obtained, then the Borrower shall have
the right, so long as all non-consenting Lenders whose individual consent is
required are treated as described in either clauses (A) or (B) below, to either
(A) replace each such non-consenting Lender or Lenders with one or more
Replacement Lenders pursuant to Section 2.17(b) so long as at the time of such
replacement, each such Replacement Lender consents to the proposed change,
waiver, discharge or termination or (B) terminate such non-consenting Lender's
Commitment and/or repay the outstanding Loans of such Lender, provided that,
unless the Commitment that is terminated and Loans repaid pursuant to preceding
clause (B) are immediately replaced in full at such time through the addition of
new Lenders or the increase of the Commitments and/or outstanding Loans of
existing Lenders (who in each case must specifically consent thereto), then in
the case of any action pursuant to preceding clause (B) the Required Lenders
(determined after giving effect to the proposed action) shall specifically
consent thereto, provided further, that in any event the Borrower shall not have
the right to replace a Lender, terminate its Commitment or repay its Loans
solely as a result of the exercise of such Lender's rights (and the withholding
of any required consent by such Lender) pursuant to the second proviso to
Section 9.1(a).
9.2 Notices. Unless otherwise expressly specified or permitted by the
terms hereof, all notices hereunder shall be given as provided in the
Participation Agreement; 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, 2.7
or 2.11(b) 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 Operative
Agreements 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 further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Operative Agreements and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement and the
Notes and the making of the Loans hereunder.
9.5 Successors and Assigns. (a) The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any
24
CREDIT AGREEMENT
attempted assignment or transfer by the Borrower without such consent shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it); provided that (i) except
in the case of an assignment to a Lender or an Affiliate of a Lender, each of
the Lessee and the Administrative Agent must give its prior written consent to
such assignment (which consent shall not be unreasonably withheld), (ii) except
in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender's Commitment,
the amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 unless each of the Lessee and the Administrative Agent otherwise
consent, (iii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement, (iv) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500; and provided further that any consent
of the Lessee otherwise required under this paragraph shall not be required if a
Default or Event of Default has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and Acceptance the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14 and 2.15). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this paragraph shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (e) of this Section.
(c) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent
shall accept such Assignment and Acceptance and record the information contained
therein in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(d) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Lending Participant") in all or a portion of such Lender's rights and
obligations under this Agreement
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CREDIT AGREEMENT
(including all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; and provided further
that no Lender shall transfer or grant any participation under which the Lending
Participants shall have rights to approve any amendment to or waiver of this
Agreement except to the extent that such amendment or waiver would (i) extend
the final scheduled maturity of any Revolving Loan or Note in which the Lending
Participant is participating, or reduce the rate or extend the time of payment
of interest or fees thereon (except in connection with a waiver of applicability
of any post-default increase in interest rates) or reduce the principal amount
thereof, or increase the amount of the participant's participation over the
amount thereof then in effect (it being understood that a waiver of any Default
or Event of Default or of a mandatory reduction in the aggregate Commitments
shall not constitute a change in the terms of such participation and that an
increase in any Commitment or Loan shall be permitted without the consent of any
Lending Participant if the Lending Participant's participation is not increased
as a result thereof, or (ii) consent to the assignment by the Borrower of any of
its rights and obligations under this Agreement.
(e) A Lending Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.15 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Lending
Participant, unless the sale of the participation to such Lending Participant is
made with the Borrower's prior written consent. A Lending Participant that would
be a Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.15 unless the Borrower is notified of the participation sold to such
Lending Participant and such Lending Participant agrees, for the benefit of the
Borrower, to comply with Section 2.15(e) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
9.6 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 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
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CREDIT AGREEMENT
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
9.7 Adjustments; Set-Off. (a) Except as provided in Sections 2.5, 8
and 9.1(b), 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 6.1(i) or
6.1(j), 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 Loan, 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; provided, however, that
if all or any portion of such excess payment or benefits 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.
(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, 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 9.7(a), and all other claims of any nature
or description arising out of or connected with this Agreement or any other
Operative Agreement, irrespective of whether or not the Administrative Agent or
such Lender shall have made any demand hereunder and although said obligations,
liabilities or claims, or any of them, shall be contingent or unmatured.
9.8 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
telecopy transmission of signature pages hereto), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the copies of this Agreement signed by all the parties shall be lodged with
the Borrower and the Administrative Agent.
9.9 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
27
CREDIT AGREEMENT
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
9.10 Integration. This Agreement and the other Operative Agreements
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter 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 Agreements.
9.11 Governing Law; Jurisdiction; Consent to Service of Process. (a)
This Agreement shall be construed in accordance with and governed by the law of
the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement against the
Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) The Borrower hereby irrevocably designates, appoints and empowers
the Process Agent, as its designee, and on its behalf, and in respect of its
properties, service of any and all legal process, summons, notices and documents
which may be served in any such action or proceeding. If for any reason the
Process Agent shall cease to be available to act as such, the Borrower agrees to
designate a new Process Agent in New York City on the terms and for the purposes
of this provision satisfactory to the Administrative Agent. Each party to this
Agreement irrevocably consents to service of process in the manner provided for
notices in the Participation Agreement. Nothing in this Agreement will affect
the right of any party to this Agreement to serve process in any other manner
permitted by law.
9.12 Acknowledgements. The Borrower hereby acknowledges that:
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CREDIT AGREEMENT
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the Notes and the other Operative
Agreements;
(b) 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 Operative Agreements,
and the relationship between Administrative Agent and Lenders, on one hand,
and the Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Operative
Agreements or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
9.13 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
9.14 Nonrecourse. Anything to the contrary contained in this Agreement
or in any other Operative Agreement notwithstanding, other than in the case of
fraudulent conduct or wilful misconduct by such Person, except for the
obligations of the Trust Company under the Trust Agreement, Section 5 of the
Lease and the representations and warranties of the Trust Company in Section 7.4
of the Participation Agreement, neither the Borrower 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 personally liable 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, 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
Collateral and the Guarantors; but nothing contained herein shall be taken to
prevent recourse against or the enforcement of remedies against the Properties
or any other Collateral in respect of any and all liabilities, obligations and
undertakings contained in this Agreement, the Notes or any other Operative
Agreement. The Administrative Agent and the Lenders further agree that the
Borrower shall not be responsible for the payment of any amounts owing hereunder
(excluding principal and interest (other than Overdue Interest) in respect of
the Loans) (such non-excluded amounts, "Supplemental Amounts") except to the
extent that payments of Supplemental Rent applicable to such Supplemental
Amounts have been made by the Lessee for application to such Supplemental
Amounts (it being understood that the failure by the Lessee for any reason to
pay any Supplemental Rent in respect of such Supplemental Amounts shall
nevertheless be deemed to constitute a default by the Borrower for the purposes
of Section 6.1(a)(ii)).
29
CREDIT AGREEMENT
Notwithstanding the foregoing provisions of this Section 9.14, nothing in this
Agreement or any other Operative Agreement shall (a) constitute a waiver,
release or discharge of any obligation evidenced or secured by this Agreement or
any other Credit Document, (b) limit the right of the Administrative Agent or
any Lender to name the Borrower as a party defendant in any action or suit for
judicial foreclosure and sale under any Security Document, or (c) affect in any
way the validity or enforceability of the Guarantees or any other guarantee
(whether of payment and/or performance) given to the Administrative Agent or the
Lenders, or of any indemnity agreement given by the Borrower, in connection with
the Loans made hereunder.
9.15 OREGON LEGAL NOTICE. WITHOUT LIMITING THE VALIDITY OF THE CHOICE
OF NEW YORK LAW PROVIDED HEREIN, UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND
COMMITMENTS MADE BY THE LENDERS AFTER THE RESTATEMENT DATE OF THE ACT SPECIFIED
HEREIN CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL
FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S RESIDENCE MUST
BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY THE LENDERS TO BE
ENFORCEABLE. THE ACT SPECIFIED HEREIN MEANS CHAPTER 967 OREGON LAWS 1989, THE
EFFECTIVE DATE OF WHICH WAS OCTOBER 3, 1989.
9.16 WASHINGTON STATUTORY NOTICE . ORAL AGREEMENTS OR ORAL COMMITMENTS
TO LOAN MONEY, EXTEND CREDIT OR FORBEAR FROM ENFORCING REPAYMENT OF DEBT ARE NOT
ENFORCEABLE UNDER WASHINGTON LAW.
30
CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
FMS TRUST 1997-1,
as Borrower
By WILMINGTON TRUST COMPANY, not in
its individual capacity but solely as Owner Trustee
XXXXX X. XXXXX
By: ---------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
S-1
CREDIT AGREEMENT
BANKERS TRUST COMPANY,
as Administrative Agent and a Lender
XXXX X. XXXXXXXX
By: -----------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
S-2
CREDIT AGREEMENT
THE CHASE MANHATTAN BANK,
as Syndication Agent and as a Lender
XXXXXX X. XXXXXX
By: --------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
S-3
CREDIT AGREEMENT
NATIONSBANK OF TEXAS, N.A.,
as Co-Documentation Agent and as a Lender
XXXXXXX X. XXXXXXXX
By: ------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
S-4
CREDIT AGREEMENT
SALOMON BROTHERS HOLDING CO INC.,
as Co-Documentation Agent and as a Lender
XXXX X. XXXX
By: -----------------------
Name: Xxxx X. Xxxx
Title: Managing Director
S-5
CREDIT AGREEMENT
ABN ARMO BANK N.V.
as a Lender
XXXXX XXXXXXXX
By: -----------------------
Name: Xxxxx XxXxxxxx
Title: Vice President
XXXXX X. XXXX
By: -----------------------
Name: Xxxxx X. Xxxx
Title: Vice President
S-6
CREDIT AGREEMENT
MARINE MIDLAND BANK,
as a Lender
XXXX XXXXXXXX
By: -----------------------
Name: Xxxx Xxxxxxxx
Title: Authorized Signatory
S-7
CREDIT AGREEMENT
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
XXXXXXX X. XXXXX
By: -----------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
S-8
CREDIT AGREEMENT
WACHOVIA BANK, N.A.,
as a Lender
XXXX X. XXXXXXX
By: -----------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
S-9
CREDIT AGREEMENT
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as a Lender
XXXXXXX X. XXXXXXXXXX
By: -----------------------
Name: Xxxxxxx X. XxXxxxxxxx
Title: Authorized Signatory
S-10
CREDIT AGREEMENT
BANK OF MONTREAL,
as a Lender
X.X. XXXX
By: -----------------------
Name: X.X. Xxxx
Title: Managing Director
S-11
CREDIT AGREEMENT
DLJ CAPITAL FUNDING, INC.,
as a Lender
XXXXXXX X. XXXXXX
By: -----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
S-12
CREDIT AGREEMENT
SOCIETE GENERALE FINANCIAL CORPORATION,
as a Lender
XXXX X. XXXXXXXXXX
By: -----------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
S-13
CREDIT AGREEMENT
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as a Lender
XXXXXXX X. XXXXXXXXXX
By: -----------------------
Name: X. XxXxxxxxxx
Title: Principal
S-14
CREDIT AGREEMENT
XXXXX FARGO BANK, N.A.,
as a Lender
XXXXXX XXXXX
By: -----------------------
Name: Xxxxxx Xxxxx
Title: Vice President
XXXXXX X. XXXXXXXX, XX.
By: -----------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President
S-15
CREDIT AGREEMENT
THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender
XXXX X. XXXXX
By: -----------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
S-16
CREDIT AGREEMENT
TRANSAMERICA LIFE INSURANCE
AND ANNUITY COMPANY,
as a Lender
XXXX X. XXXXXXXXX
By: -----------------------
Name: Xxxx X. Xxxxxxxxx
Title: Investment Officer
S-17
CREDIT AGREEMENT
THE MITSUBISHI TRUST AND BANKING
CORPORATION,
as a Lender
XXXXXXXXX XXXXXXX
By: -----------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Senior Vice President
S-18
CREDIT AGREEMENT
ROYAL BANK OF CANADA,
as a Lender
XXXXX XXXXXXXXX
By: -----------------------
Name: Xxxxx Xxxxxxxxx
Title: Senior Manager
S-19
CREDIT AGREEMENT
THE SUMITOMO TRUST AND
BANKING CO. LTD., LOS ANGELES AGENCY,
as a Lender
XXXXXXX XXXX
By: -----------------------
Name: Xxxxxxx Xxxx
Title: Manager & Vice President
S-20
CREDIT AGREEMENT
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE,
as a Lender
XXXXXXX XXXX
By: -----------------------
Name: Xxxxxxx Xxxx
Title: Vice President
XXXXX X'XXXXX
By: -----------------------
Name: Xxxxx X'Xxxxx
Title: Vice President
S-21
CREDIT AGREEMENT
KEYBANK NATIONAL ASSOCIATION,
as a Lender
XXXX X. XXXXX
By: -----------------------
Name: Xxxx X. Xxxxx
Title: Commercial Banking Officer
S-22
CREDIT AGREEMENT
FIRST SECURITY BANK, N.A.,
as a Lender
XXXX XXXXXXXXX
By: -----------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
S-23
CREDIT AGREEMENT
FIRSTRUST BANK,
as a Lender
XXXXXX X'XXXXXX
By: -----------------------
Name: Xxxxxx X'Xxxxxx
Title: Chief Banking Officer
S-24
CREDIT AGREEMENT
US BANK OF OREGON,
as a Lender
XXXXX XXXXXXX
By: -----------------------
Name: Xxxxx Xxxxxxx
Title: Asst. Relationship Manager
S-25
CREDIT AGREEMENT
FIRST UNION NATIONAL BANK,
as a Lender
XX XXXX
By: -----------------------
Name: Xx Xxxx
Title: Senior Vice President
S-26
CREDIT AGREEMENT
THE BANK OF NEW YORK,
as a Lender
XXXXXXXXX XXXX
By: -----------------------
Name: Xxxxxxxxx Xxxx
Title: Vice President
S-27
CREDIT AGREEMENT
ZIONS FIRST NATIONAL BANK,
as a Lender
XXXXXXX X. XXXXXXX
By: -----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
S-28
CREDIT AGREEMENT
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Lender
XXXXX XXXXXXX-XXXXXXX
By: ----------------------------
Name: Xxxxx Xxxxxxx-Xxxxxxx
Title: Vice President
S-29
CREDIT AGREEMENT
BANQUE PARIBAS,
as a Lender
XXXXX X. XXXXX
By: -----------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
XXX X. XXXXXXX
By: -----------------------
Name: Xxx X. Xxxxxxx
Title: Managing Director
S-30
CREDIT AGREEMENT
XXXXXX BANK,
as a Lender
XXXXXX XXXXXXXXXX
By: ------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
S-31
CREDIT AGREEMENT
BANK LEUMI U.S.A.,
as a Lender
XXXXXXX XXXXXXX
By: -----------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
S-33
CREDIT AGREEMENT
EXHIBIT A-1
TO CREDIT AGREEMENT
--------------------
TRANCHE A NOTE
$[ ] New York, New York
March --, 1998
FOR VALUE RECEIVED, the undersigned, FMS TRUST 1997- 1 (the
"Borrower"), hereby unconditionally promises to pay to the order of [LENDER]
(the "Lender") at the office of Bankers Trust Company, located at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in lawful money of the United States of
America and in immediately available funds, on the Maturity Date, the principal
amount of (a) [ ] DOLLARS [$ ], or, if less, (b) the aggregate unpaid principal
amount of all Tranche 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 holder of this 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 Tranche A Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto.
This Note (a) is one of the Tranche A Notes referred to in
the Credit Agreement dated as of the date hereof (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the Lender, the other lenders from time to time parties thereto and
Bankers Trust Company, as administrative agent, (b) is subject to the provisions
of the Credit Agreement and (c) is subject to optional and mandatory prepayment
in whole or in part as provided in the Credit Agreement. This Note is secured
and guaranteed as provided in the Credit Documents. 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 guarantee, the terms and conditions upon which the security interests and
the guarantee were granted and the rights of the holder of this Note in respect
thereof.
A-1-1
CREDIT AGREEMENT
Upon the occurrence of any one or more of the Events of
Default, all amounts then remaining unpaid on this 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 NEW YORK.
FMS TRUST 1997-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: ---------------------------------
Name:
Title:
A-1-2
CREDIT AGREEMENT
Schedule A
to Tranche A Note
-----------------
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
------------------------------------------------------------------------------------------------------------------------------------
Amount Amount of ABR Loans
Converted to Amount of Principal Converted to Unpaid Principal Balance
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans of ABR Loans Notation Made By
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
A-1-3
CREDIT AGREEMENT
Schedule B
to Tranche A Note
-----------------
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
-------------------------------------------------------------------------------
Interest Period and
Amount of Amount Converted Eurodollar Rate with
Date Eurodollar Loans to Eurodollar Loans Respect Thereto
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Amount of Principal of Amount of Eurodollar Unpaid Principal
Eurodollar Loans Loans Converted to Balance of Eurodollar Notation
Repaid ABR Loans Loans Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
CREDIT AGREEMENT
EXHIBIT A-2
TO CREDIT AGREEMENT
-------------------
TRANCHE B NOTE
$[ ] New York, New York
March --, 1998
FOR VALUE RECEIVED, the undersigned, FMS TRUST 1997-1 (the
"Borrower"), hereby unconditionally promises to pay to the order of [LENDER]
(the "Lender") at the office of Bankers Trust Company, located at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in lawful money of the United States of
America and in immediately available funds, on the Maturity Date, the principal
amount of (a) [ ] DOLLARS [$ ], or, if less, (b) the aggregate unpaid principal
amount of all Tranche 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 holder of this 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 Tranche B Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto.
This Note (a) is one of the Tranche B Notes referred to in
the Credit Agreement dated as of the date hereof (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the Lender, the other lenders from time to time parties thereto and
Bankers Trust Company, as administrative agent, (b) is subject to the provisions
of the Credit Agreement and (c) is subject to optional and mandatory prepayment
in whole or in part as provided in the Credit Agreement. This Note is secured
and guaranteed as provided in the Credit Documents. 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 guarantee, the terms and conditions upon which the security interests and
the guarantee were granted and the rights of the holder of this Note in respect
thereof.
Upon the occurrence of any one or more of the Events of
Default, all amounts then remaining unpaid on this Note shall become, or may be
declared to be, immediately due and payable, all as provided in the Credit
Agreement.
A-2-2
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 NEW YORK.
FMS TRUST 1997-1
By: WILMINGTON TRUST COMPANY, not
in its individual capacity but
solely as Owner Trustee
By:----------------------------------------
Name:
Title:
A-2-3
Schedule A
to Tranche B Note
-----------------
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
------------------------------------------------------------------------------------------------------------------------------------
Amount Amount of ABR Loans
Converted to Amount of Principal Converted to Unpaid Principal Balance
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans of ABR Loans Notation Made By
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
A-2-4
Schedule B
to Tranche B Note
-----------------
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
-------------------------------------------------------------------------------
Interest Period and
Amount of Amount Converted Eurodollar Rate with
Date Eurodollar Loans to Eurodollar Loans Respect Thereto
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Amount of Principal of Amount of Eurodollar Unpaid Principal
Eurodollar Loans Loans Converted to Balance of Eurodollar Notation
Repaid ABR Loans Loans Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
A-2-1
EXHIBIT B TO
CREDIT AGREEMENT
----------------
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of March 11,1997
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among FMS Trust 1997-1 (the "Borrower") the Lenders named therein
(the "Lenders"), Bankers Trust Company, as administrative agent for the Lenders
(in such capacity, the Administrative Agent") and The Chase Manhattan Bank, as
syndication agent. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
------------------- (the "Assignor") and ------------------- (the
"Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the As signee
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 Closing Date (as defined below), an interest (the "Assigned Inter
est"), as specified on SCHEDULE 1, in and to the Assignor's rights and
obligations under the Credit Agreement with respect to those credit facilities
contained in the Credit Agreement as are set forth on SCHEDULE 1 (individually,
an "Assigned Facility"; collectively, the "Assigned Facilities"), in a principal
amount for each Assigned Facility as 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 represen tations
made in or in connection with the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document furnished pursuant
thereto, other than that the Assignor 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; and (b) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of Borrower or
any of its
Subsidiaries or any other obligor or the performance or observance by Borrower
or any of its Subsidiaries or any other obligor of any of their respective
obligations under the Credit Agreement or any other instrument or document
furnished pursuant hereto or thereto.
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 a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to the Credit Agreement 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 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 or
any other instrument or document furnished pursuant hereto or thereto; (d)
appoints and authorizes the Administra tive Agent to take such action as agent
on its behalf and to exercise such powers and discretion under the Credit
Agreement 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 Credit Agreement and will perform in
accordance with its terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender including, if it is
organized under the laws of a jurisdiction outside the United States, its
obligation pursuant to Section 2.15(e) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be the
date set forth on Schedule 1, (the "Effective Date"). Following the execution of
this Assignment and Acceptance, it will be delivered to the Administrative Agent
for acceptance by it and recording by the Administrative Agent pursuant to the
Credit Agreement, effective as of the Effective Date (which shall not, unless
other wise agreed to by the Administrative Agent, be earlier than five Business
Days after the date of such acceptance and recording by the Administrative
Agent).
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 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
A-2
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, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and shall be
bound by the provisions thereof and (b) the Assignor shall, to the extent
provided in this Assignment and Acceptance and the Credit Agreement, relinquish
its rights and be released from its obligations under the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York.
8. This Assignment and Acceptance may be executed by one or more of
the parties to this Assignment and Acceptance on any number of separate
counterparts (including by facsimile transmission), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
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.
A-3
Schedule A
to Tranche B Note
-----------------
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
------------------------------------------------------------------------------------------------------------------------------------
Amount Amount of ABR Loans
Converted to Amount of Principal Converted to Unpaid Principal Balance
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans of ABR Loans Notation Made By
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
A-2-4
Schedule B
to Tranche B Note
-----------------
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
-------------------------------------------------------------------------------
Interest Period and
Amount of Amount Converted Eurodollar Rate with
Date Eurodollar Loans to Eurodollar Loans Respect Thereto
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Amount of Principal of Amount of Eurodollar Unpaid Principal
Eurodollar Loans Loans Converted to Balance of Eurodollar Notation
Repaid ABR Loans Loans Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
A-2-4
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT, DATED AS OF MARCH 11, 1998,
AMONG
FMS TRUST 1997-1,
THE LENDERS NAMED THEREIN,
BANKERS TRUST COMPANY, AS ADMINISTRATIVE AGENT FOR THE LENDERS (IN SUCH
CAPACITY, THE "ADMINISTRATIVE AGENT")
AND
THE CHASE MANHATTAN BANK, AS SYNDICATION AGENT
-------------------------------------------------------------------------------
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Credit Commitment/Term Loan
Facility Assigned Amount Assigned Commitment Percentage Assigned1/
----------------- -------------------- --------------------------------
$______________ __._______%
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By -------------------- By --------------------
Name: Name:
Title: Title:
---------------------
/1 Calculate the Commitment Percentage that is assigned to at least 15 decimal
places and show as a percentage of the aggregate commitments of all Lenders
S-1
Accepted for Recordation in Consented To:*/
the Register:
Bankers Trust Company, FMS TRUST 1997-1,
as Administrative Agent
By -------------------------
By-------------------------- Name:
Name: Title:
Title:
Bankers Trust Company
as Administrative Agent
By -------------------------
Name:
Title:
--------------------
*/ If required.
S-2
Schedule 2.1
Lenders and Commitments
Name and Address of Lender Commitment
-------------------------- ----------
Bankers Trust Company $38,218,946.05
One Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attn: Deal Administrator
The Chase Manhattan Bank $36,393,350.06
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (212)
Attn:
NationsBank of Texas, N.A. $34,607,277.29
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (213)
Attn:
Salomon Brothers Holding Co Inc. $34,607,277.29
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (212)
Attn:
Xxxxx Fargo Bank $30,426,599.75
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
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DLJ Capital Funding, Inc. $24,341,279.80
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Bank of America National Trust and $24,341,279.80
Savings Association
000 Xxxxx Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
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The First National Bank of Chicago $24,341,279.80
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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Xxxxxxx Xxxxx Credit Partners L.P. $24,341,279.80
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Xxxxxx Xxxxxxx Senior Funding, Inc. $24,341,279.80
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Societe Generale Financial Corporation $24,341,279.80
000 Xxxx Xxxxxxx , Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
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Union Bank of California, N.A. $24,341,279.80
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
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U.S. Bank of Oregon $24,341,279.80
000 X.X. Xxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
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2
Wachovia $24,341,279.80
000 Xxxxxxxxx Xxxxxx XX, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
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Marine Midland Bank $15,213,299.88
000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Attn.: Xxxx Xxxxxxxx
Bank of Montreal $6,085,319.95
000 Xxxxx Xx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
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Compagnie Financier de CIC et de $6,085,319.95
l'Union Europeenne,
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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First Security Bank, N.A. $6,085,319.95
15 East 000 Xxxxx , 0xx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
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Banque Paribas $6,085,319.95
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
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Royal Bank of Canada $6,085,319.95
000 Xxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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Attn.:
3
Transamerica Life Insurance and $6,085,319.95
Annuity Company
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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Zions First National Bank $3,651,191.97
Xxx Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 8411
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ABN Amro North America, Inc. $3,042,659.97
One Union Square
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
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The Bank of New York $3,042,659.97
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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First Union National Bank $3,042,659.97
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
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KeyBank National Association $3,042,659.97
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
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The Mitsubishi Trust and Banking Corporation $3,042,659.97
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Attn.:
4
The Sumitomo Trust and Banking Co. Ltd., $3,042,659.97
Los Angeles Agency
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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Bank Leumi, U.S.A. $1,825,595.98
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
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Xxxxxx Bank $15,000,000.00
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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FirstTrust Bank $1,217,063.99
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
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