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EXHIBIT 10.21
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MASTER AGREEMENT
Dated as of May 30, 2000
among
DISCOUNT AUTO PARTS, INC.,
as a Guarantor,
DISCOUNT AUTO PARTS DISTRIBUTION CENTER, INC. AND
CERTAIN OTHER SUBSIDIARIES OF
DISCOUNT AUTO PARTS, INC.
THAT MAY HEREAFTER BECOME PARTY HERETO,
as Lessees
ATLANTIC FINANCIAL GROUP, LTD., as Lessor,
CERTAIN FINANCIAL INSTITUTIONS PARTIES HERETO,
as Lenders
and
SUNTRUST BANK, as Agent
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS; INTERPRETATION............................... 1
ARTICLE II. ACQUISITION, CONSTRUCTION AND LEASE; FUNDINGS;
NATURE OF TRANSACTION..................................... 2
SECTION 2.1 Agreement to Acquire, Construct, Fund and Lease....... 2
(a) Land............................................. 2
(b) Building......................................... 2
SECTION 2.2 Fundings of Purchase Price, Development Costs
and Construction Costs................................ 2
(a) Initial Funding and Payment of Purchase
Price for Land and Development Costs on
Closing Date..................................... 2
(b) Subsequent Fundings and Payments of
Construction Costs during Construction Term...... 3
(c) Aggregate Limits on Funded Amounts............... 3
(d) Notice, Time and Place of Fundings............... 3
(e) Lessee's Deemed Representation for Each Funding.. 4
(f) Not Joint Obligations............................ 4
(g) Non-Pro Rata Fundings............................ 5
SECTION 2.3 Funded Amounts and Interest and Yield Thereon......... 5
SECTION 2.4 Lessee Owner for Tax Purposes......................... 6
SECTION 2.5 Amounts Due Under Lease............................... 6
ARTICLE III. CONDITIONS PRECEDENT; DOCUMENTS........................... 8
SECTION 3.1 Conditions to the Obligations of the Funding
Parties on each Closing Date.......................... 8
(a) Documents........................................ 8
(i) Deed and Purchase Agreement............... 8
(ii) Lease Supplement.......................... 8
(iii) Mortgage and Assignment of Lease and Rents 8
(iv) Security Agreement and Assignment......... 9
(v) Survey.................................... 9
(vi) Title and Title Insurance................. 9
(vii) Appraisal................................. 10
(viii) Environmental Audit and related
Reliance Letter........................... 10
(ix) Evidence of Insurance..................... 10
(x) UCC Financing Statement; Recording Fees;
Transfer Taxes............................ 10
(xi) Opinions.................................. 11
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(xii) Good Standing Certificates............... 11
(xiii) IDB Property............................. 11
(b) Litigation ..................................... 11
(c) Legality ....................................... 11
(d) No Events....................................... 12
(e) Representations................................. 12
(f) Cutoff Date..................................... 12
(g) Transaction Expenses ........................... 12
(h) Approval ....................................... 12
SECTION 3.2 Additional Conditions for the Initial Closing Date... 12
(i) Loan Agreement; Guaranty Agreement....... 12
(ii) Master Agreement......................... 12
(iii) Construction Agency Agreement ........... 13
(iv) Lease ................................... 13
(v) Lessee's Resolutions and Incumbency
Certificate, etc. ....................... 13
(vi) Opinions of Counsel ..................... 13
(vii) Good Standing Certificate ............... 13
(viii) Lessor's Consents and Incumbency
Certificate, etc. ....................... 13
(ix) Increase in Revolving Credit Agreement... 14
SECTION 3.3 Conditions to the Obligations of Lessee ............. 14
(a) General Conditions ............................. 14
(b) Legality ....................................... 14
(c) Purchase Agreement; Ground Lease ............... 14
SECTION 3.4 Conditions to the Obligations of the Funding
Parties on each Funding Date......................... 14
(a) Funding Request................................. 14
(b) Condition Fulfilled............................. 15
(c) Representations................................. 15
(d) No Bonded Stop Notice or Filed Mechanics Lien... 15
(e) Lease Supplement ............................... 15
SECTION 3.5 Completion Date Conditions........................... 15
(a) Title Policy Endorsements; Architect's
Certificate..................................... 15
(b) Construction Completion......................... 16
(c) Construction Agent Certification ............... 16
SECTION 3.6 Addition of Lessees ................................. 17
ARTICLE IV. REPRESENTATIONS ......................................... 18
SECTION 4.1 Representations of DAP, DAP SUB and other Lessees ... 18
(a) Organization and Qualification ................. 18
(b) Corporate Authority............................. 18
(c) Financial Statements ........................... 18
(d) Tax Returns..................................... 19
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(e) Actions Pending; Compliance With Laws........... 19
(f) Representations; No Defaults.................... 19
(g) Title to Properties; Capitalized Leases......... 19
(h) Enforceability of Agreement..................... 20
(i) Consent......................................... 20
(j) Use of Proceeds; Federal Reserve Regulations.... 20
(k) ERISA........................................... 20
(l) Subsidiaries.................................... 21
(m) Outstanding Consolidated Funded Debt............ 21
(n) Conflicting Agreements; Dividend or
Redemption Limitations.......................... 21
(o) Environmental Matters - General................. 22
(p) Possession of Franchises, Licenses, Etc. ....... 23
(r) Governmental Consent............................ 23
(s) Disclosure...................................... 24
(t) Labor Matters................................... 24
(u) Intercompany Loans; Dividends................... 24
(v) Securities Acts................................. 24
(w) Investment Company Act; Holding Company......... 25
(x) Regulation T, Etc. ............................. 25
(y) Changes in Financial Condition;
Adverse Developments........................... 25
(z) Hazardous Materials - Leased Properties......... 25
(aa) Leased Property................................. 27
(bb) Flood Hazard Areas.............................. 27
SECTION 4.2 Survival of Representations and Effect of Fundings... 27
(a) Survival of Representations and Warranties...... 27
(b) Each Funding a Representation................... 27
SECTION 4.3 Representations of the Lessor........................ 27
(a) Securities Act.................................. 28
(b) Due Organization, etc. ......................... 28
(c) Due Authorization; Enforceability, etc. ........ 28
(d) No Conflict..................................... 28
(e) Litigation...................................... 28
(f) Lessor Liens.................................... 28
(g) Employee Benefit Plans.......................... 29
(h) General Partner................................. 29
(i) Financial Information........................... 29
(j) No Offering..................................... 29
(k) Investment Company.............................. 30
SECTION 4.4 Representations of each Lender....................... 30
(a) Securities Act.................................. 30
(b) Employee Benefit Plans.......................... 30
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ARTICLE V. COVENANTS OF DAP AND THE LESSOR.......................... 30
SECTION 5.1 Corporate Existence, Etc. ........................... 30
SECTION 5.2 Compliance with Laws, Etc. .......................... 30
SECTION 5.3 Payment of Taxes and Claims, Etc. ................... 30
SECTION 5.4 Keeping of Books..................................... 31
SECTION 5.5 Visitation, Inspection, Etc. ........................ 31
SECTION 5.6 Insurance; Maintenance of Properties................. 31
SECTION 5.7 Reporting Covenants.................................. 32
(a) Annual Financial Statements..................... 32
(b) Quarterly Financial Statements.................. 32
(c) No Default/Compliance Certificate............... 32
(d) Notice of Default............................... 33
(e) Litigation...................................... 33
(f) Environmental Notices........................... 33
(g) ERISA........................................... 33
(h) Liens........................................... 34
(i) Public Filings, Etc. ........................... 34
(j) Accountants' Reports............................ 35
(k) Trademarks; Labor Disputes, Etc. ............... 35
(l) New Subsidiaries................................ 35
(m) Intercompany Asset Transfers.................... 35
(n) Other Information............................... 35
SECTION 5.8 Financial Covenants.................................. 35
(a) Interest Coverage Ratio......................... 35
(b) Consolidated Funded Debt to Total
Capitalization Ratio............................ 36
(c) Maximum Consolidated Funded Debt to
Consolidated EBITDAR............................ 36
SECTION 5.9 Notices Under Certain Other Consolidated Funded Debt. 36
SECTION 5.10 Fiscal Year.......................................... 36
SECTION 5.11 Subordination of Intercompany Loans.................. 36
SECTION 5.12 Subsidiaries/Guarantors.............................. 36
SECTION 5.13 Liens................................................ 37
SECTION 5.14 Mergers, Acquisitions, Sales, Etc. .................. 38
SECTION 5.15 Investments, Loans, Etc. ............................ 39
SECTION 5.16 Transactions with Affiliates......................... 40
SECTION 5.17 Changes in Business.................................. 40
SECTION 5.18 ERISA................................................ 40
SECTION 5.19 Limitation on Payment Restrictions Affecting
Consolidated Companies............................... 40
SECTION 5.20 Subsidiary Indebtedness.............................. 41
SECTION 5.21 Use of Proceeds...................................... 41
SECTION 5.22 Further Assurances................................... 41
SECTION 5.23 Additional Required Appraisals....................... 41
SECTION 5.24 Lessor's Covenants................................... 41
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SECTION 5.25 Lenders' Covenants................................... 43
ARTICLE VI. TRANSFERS BY LESSOR AND LENDERS.......................... 43
SECTION 6.1 Lessor Transfers..................................... 43
SECTION 6.2 Lender Transfers..................................... 43
ARTICLE VII. INDEMNIFICATION.......................................... 45
SECTION 7.1 General Indemnification.............................. 45
SECTION 7.2 Environmental Indemnity.............................. 47
SECTION 7.3 Proceedings in Respect of Claims..................... 49
SECTION 7.4 General Tax Indemnity................................ 50
(a) Tax Indemnity.................................... 50
(b) Exclusions from General Tax Indemnity............ 51
(c) Contests......................................... 53
(d) Reimbursement for Tax Savings.................... 54
(e) Payments......................................... 55
(f) Reports.......................................... 55
(g) Verification..................................... 56
SECTION 7.5 Increased Costs, etc. ............................... 56
(a) Illegality....................................... 56
(b) Requirements of Law.............................. 57
(c) Capital Adequacy................................. 57
(d) Taxes............................................ 58
(e) Tax Forms........................................ 59
(f) Breakage Costs................................... 59
(g) Action of Affected Funding Parties............... 60
SECTION 7.6 End of Term Indemnity................................ 60
ARTICLE VIII. MISCELLANEOUS............................................ 61
SECTION 8.1 Survival of Agreements............................... 61
SECTION 8.2 Notices.............................................. 61
SECTION 8.3 Counterparts......................................... 62
SECTION 8.4 Amendments........................................... 62
SECTION 8.5 Headings, etc. ...................................... 63
SECTION 8.6 Parties in Interest.................................. 63
SECTION 8.7 GOVERNING LAW........................................ 63
SECTION 8.8 Expenses............................................. 63
SECTION 8.9 Severability......................................... 64
SECTION 8.10 Liabilities of the Funding Parties:
Sharing of Payments.................................. 64
SECTION 8.11 Submission to Jurisdiction; Waivers.................. 64
SECTION 8.12 Liabilities of the Agent............................. 65
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APPENDIX A Definitions and Interpretation
SCHEDULES
SCHEDULE 2.2 Commitments
SCHEDULE 4.1(c) Material Adverse Effect
SCHEDULE 4.1(d) Taxes
SCHEDULE 4.1(e) Litigation
SCHEDULE 4.1(g) Capitalized Lease Obligations
SCHEDULE 4.1(k) ERISA Plans
SCHEDULE 4.1(l) Subsidiaries
SCHEDULE 4.1(m) Consolidated Funded Debt
SCHEDULE 4.1(n) Restrictions on Incurrence of Obligations
SCHEDULE 4.1(o) Environmental Matters
SCHEDULE 4.1(q) Patents, Trademarks
SCHEDULE 4.1(t) Labor Matters
SCHEDULE 4.1(u) Intercompany Loans
SCHEDULE 5.13 Liens
SCHEDULE 8.2 Notice Addresses
EXHIBITS
EXHIBIT A Form of Funding Request
EXHIBIT B Form of Assignment of Lease and Rents
EXHIBIT C Form of Security Agreement and Assignment
EXHIBIT D-1 Form of Mortgage
EXHIBIT D-2 Form of Deed of Trust
EXHIBIT E Form of Joinder Agreement
EXHIBIT F Form of Assignment and Acceptance Agreement
EXHIBIT G Forms of Opinions of Counsel
EXHIBIT H Form of Certification of Construction Completion
EXHIBIT I Form of Payment Date Notice
EXHIBIT J Form of Subsidiary Guaranty
EXHIBIT K Form of Contribution Agreement
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MASTER AGREEMENT
THIS MASTER AGREEMENT, dated as of May 30, 2000 (as it may be amended
or modified from time to time in accordance with the provisions hereof, this
"Master Agreement"), is among DISCOUNT AUTO PARTS, INC., a Florida corporation
("DAP" or "Guarantor"), DISCOUNT AUTO PARTS DISTRIBUTION CENTER, INC., a
Mississippi corporation ("DAP SUB"), and certain other Subsidiaries of DAP that
may hereafter become parties hereto as lessees pursuant to Section 3.6
(individually, together with DAP SUB in its capacity as a lessee, a "Lessee"
and collectively the "Lessees"), as Lessees, ATLANTIC FINANCIAL GROUP, LTD., a
Texas limited partnership (the "Lessor"), certain financial institutions
parties hereto as lenders (together with any other financial institution that
becomes a party hereto as a lender, collectively referred to as "Lenders" and
individually as a "Lender"), and SUNTRUST BANK, a Georgia state banking
corporation, as agent for the Lenders (in such capacity, the "Agent").
PRELIMINARY STATEMENT
In accordance with the terms and provisions of this Master Agreement,
the Lease, the Loan Agreement and the other Operative Documents, (i) the Lessor
contemplates acquiring Land and, in certain cases, the Buildings on such Land
identified by DAP SUB from time to time, and leasing such Land and Buildings
thereon to a Lessee, (ii) DAP SUB, as Construction Agent for the Lessor,
wishes, in certain instances, to arrange for the construction of Buildings on
Land for the Lessor and, when completed, the related Lessee wishes to lease
such Buildings from the Lessor as part of the Leased Properties under the
Lease, (iii) DAP SUB, in carrying out its duties as agent, wishes to obtain
from Lessor, and the Lessor is willing to provide, funding for the acquisition
of the Land and Buildings, or, in certain instances, the construction of
Buildings, and (iv) the Lessor wishes to obtain, and Lenders are willing to
provide, from time to time, financing of a portion of the funding of the
acquisition of the Land and Buildings and, if applicable, the construction of
the Buildings.
In consideration of the mutual agreements contained in this Master
Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I.
DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and
not defined herein shall have the meanings assigned thereto in Appendix A
hereto for all purposes hereof; and the rules of interpretation set forth in
Appendix A hereto shall apply to this Master Agreement.
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ARTICLE II.
ACQUISITION, CONSTRUCTION AND LEASE; FUNDINGS;
NATURE OF TRANSACTION
SECTION 2.1 Agreement to Acquire, Construct, Fund and Lease.
(a) Land. Subject to the terms and conditions of this Master
Agreement, with respect to each parcel of Land identified by DAP SUB, on the
related Closing Date (i) the Lessor agrees to acquire such interest in the
related Land, and any Building thereon, from the applicable Seller as is
transferred, sold, assigned and conveyed to the Lessor pursuant to the
applicable Purchase Agreement or to lease such interest in the related Land,
and any Building thereon, from the applicable Ground Lessor as is leased to the
Lessor pursuant to the applicable Ground Lease, (ii) the Lessor hereby agrees
to lease, or sublease, as the case may be, such Land and any Building thereon
to the related Lessee pursuant to the Lease, and (iii) the related Lessee
hereby agrees to lease, or sublease, as the case may be, such Land, and any
Building thereon, from the Lessor pursuant to the Lease. With respect to each
IDB Property, (i) the applicable Authority may acquire such interest in the
related Land from the applicable Seller as is transferred, sold, assigned and
conveyed to the Authority pursuant to the applicable Purchase Agreement, (ii)
the applicable Authority will lease such Land to the Lessor pursuant to the
related IDB Lease, and (iii) the related Lessee hereby agrees to sublease such
Land from the Lessor pursuant to the Lease (it being understood that any
reference in the Operative Documents to the lease by a Lessee of an IDB
Property shall be deemed to refer to the sublease thereof pursuant to the
Lease, if title to such IDB Property is held by the related Authority).
(b) Building. With respect to each parcel of Land on which a Building
is to be constructed, subject to the terms and conditions of this Master
Agreement, from and after the Closing Date relating to such Land (i) the
Construction Agent agrees, pursuant to the terms of the Construction Agency
Agreement, to construct and install the Building on such Land for the Lessor
prior to the Scheduled Construction Termination Date, (ii) the Lenders and the
Lessor agree to fund the costs of such construction and installation (and
interest and yield thereon), (iii) the Lessor shall lease, or sublease, as the
case may be, such Building as part of such Leased Property to the related
Lessee pursuant to the Lease, and (iv) the related Lessee shall lease, or
sublease, as the case may be, such Building from the Lessor pursuant to the
Lease.
SECTION 2.2 Fundings of Purchase Price, Development Costs and
Construction Costs.
(a) Initial Funding and Payment of Purchase Price for Land and
Development Costs on Closing Date. Subject to the terms and conditions of this
Master Agreement, on the Closing Date for any Land, and any Building thereon,
each Lender shall make available, or arrange to make available, to the Lessor
its initial Loan with respect to such Land, and any Building thereon, in an
amount equal to the product of such Lender's Commitment Percentage
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times the purchase price for such Land, and any Building thereon, and the
development, transaction and closing costs incurred by the Construction Agent,
as agent, through such Closing Date, which funds the Lessor shall use, together
with the Lessor's own funds in an amount equal to the product of the Lessor's
Commitment Percentage times the purchase price for the related Land and any
Building thereon, and the development, transaction and closing costs incurred
by the Construction Agent, as agent for the Lessor, through such Closing Date,
to purchase such Land, and any Building thereon, from the applicable Seller
pursuant to the applicable Purchase Agreement or lease the Land and any
Building thereon, from the applicable Ground Lessor pursuant to the applicable
Ground Lease, as the case may be, and to pay the amount of such development,
transaction and closing costs, and the Lessor shall lease, or sublease, as the
case may be, such Land to the related Lessee pursuant to the Lease.
(b) Subsequent Fundings and Payments of Construction Costs during
Construction Term. Subject to the terms and conditions of this Master
Agreement, if a Building is to be constructed on Land, on each Funding Date
following the Closing Date for each such parcel of Land until the related
Construction Term Expiration Date, (i) each Lender shall make available, or
arrange to make available, to the Lessor a Loan in an amount equal to the
product of such Lender's Commitment Percentage times the amount of Funding
requested by the Construction Agent for such Funding Date, which funds the
Lessor hereby directs each Lender to pay over, or cause to be paid over, to the
Agent, for distribution to the Construction Agent, as agent for the Lessor, as
set forth in paragraph (d), and (ii) the Lessor shall pay over to the Agent,
for distribution to the Construction Agent, as agent for the Lessor, its own
funds (which shall constitute a part of, and an increase in, the Lessor's
Invested Amount with respect to such Leased Property) in an amount equal to the
product of the Lessor's Commitment Percentage times the amount of Funding
requested by the Construction Agent for such Funding Date.
(c) Aggregate Limits on Funded Amounts. The aggregate amount that the
Funding Parties shall be committed to provide, or cause to be provided, as
Funded Amounts under this Master Agreement and the Loan Agreement shall not
exceed (x) with respect to each Leased Property the costs of purchase and
construction of such Leased Property and the related development, transaction,
closing and financing costs, or (y) $28,000,000 in the aggregate for all Leased
Properties. The aggregate amount that any Funding Party shall be committed to
fund, or cause to be funded, under this Master Agreement and the Loan Agreement
shall not exceed the lesser of (i) such Funding Party's Commitment and (ii)
such Funding Party's Commitment Percentage of the aggregate Fundings requested
under this Master Agreement.
(d) Notice, Time and Place of Fundings. With respect to each Funding,
a Lessee or the Construction Agent, as the case may be, shall give the Lessor
and the Agent an irrevocable prior telephone (followed within one Business Day
with written) or written notice not later than 11:00 a.m., Atlanta, Georgia
time, at least three Business Days prior to the proposed Closing Date or other
Funding Date, as the case may be, pursuant, in each case, to a Funding Request
in the form of Exhibit A (a "Funding Request"), specifying the Closing Date or
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subsequent Funding Date, as the case may be, the amount of Funding requested,
whether such Funding shall be a LIBOR Advance or a Base Rate Advance or a
combination thereof and the Rent Period(s) therefor. All documents and
instruments required to be delivered on such Closing Date pursuant to this
Master Agreement shall be delivered at the offices of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location as may
be determined by the Lessor, the Construction Agent and the Agent. Each Funding
shall occur on a Business Day and shall be in an amount equal to $25,000 or an
integral multiple of $1,000 in excess thereof, with the exception of the final
draw, which may be for such lesser amount as may be due and owing to fund the
balance of the construction. All remittances made by, or caused to be made by,
any Lender and the Lessor for any Funding shall be made in immediately
available funds by wire transfer to or, as is directed by, the Construction
Agent, with receipt by the Construction Agent not later than 12:00 noon,
Atlanta, Georgia time, on the applicable Funding Date, upon satisfaction or
waiver of the conditions precedent to such Funding set forth in Section 3; such
funds shall (1) in the case of the initial Funding on a Closing Date, be used
to pay the purchase price to the applicable Seller for the related Land and any
Building thereon and pay development, transaction and closing costs related to
such Land, and (2) in the case of each subsequent Funding be paid to the
Construction Agent, as agent for the Lessor, for the payment or reimbursement
of Construction costs incurred through such Funding Date and not previously
paid or reimbursed.
(e) Lessee's Deemed Representation for Each Funding. Each Funding
Request by a Lessee or the Construction Agent shall be deemed a reaffirmation
of each Lessee's indemnity obligations in favor of the Indemnitees under the
Operative Documents and a representation and warranty to the Lessor, the Agent
and the Lenders that on the proposed Closing Date or Funding Date, as the case
may be, (i) the amount of Funding requested represents amounts owing in respect
of the purchase price of the related Land, and any Building thereon, and
development, transaction and closing costs in respect of the Leased Property
(in the case of the initial Funding on a Closing Date) or amounts that are then
due to third parties in respect of the Construction, or amounts paid by the
Construction Agent, as agent for the Lessor, to third parties or incurred by
the Construction Agent, as agent for the Lessor, as overhead expenses in
respect of the Construction for which the Construction Agent has not previously
been reimbursed by a Funding (in the case of any Funding), (ii) no Event of
Default or Potential Event of Default exists, and (iii) the representations and
warranties of the Guarantor, DAP SUB and each other Lessee set forth in Section
4.1 are true and correct in all material respects as though made on and as of
such Funding Date, except to the extent such representations or warranties
relate solely to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects on and as
of such earlier date.
(f) Not Joint Obligations. Notwithstanding anything to the contrary
set forth herein or in the other Operative Documents, each Lender's and the
Lessor's commitments shall be several, and not joint. In no event shall any
Funding Party be obligated to fund, or cause to be funded, an amount in excess
of such Funding Party's Commitment Percentage of any Funding,
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or to fund, or cause to be funded, amounts in the aggregate in excess of such
Funding Party's Commitment.
(g) Non-Pro Rata Fundings. Notwithstanding anything to the contrary
set forth in this Master Agreement, but subject to Section 2.2(f) above, at the
Agent's option, Fundings may be made by drawing on the Lessor's Commitment
until such Commitment is fully funded before drawing on the Lenders'
Commitments. In such event, when the Lessor's Commitment is fully funded, the
Lenders will fund, or cause to be funded, on a pro rata basis as among
themselves, 100% of the amount of the Fundings thereafter, provided that, in no
event will the Lessor's Invested Amount be less than 3.5% of the aggregate
Funded Amounts.
SECTION 2.3 Funded Amounts and Interest and Yield Thereon.
(a) The Lessor's Invested Amount for any Leased Property outstanding
from time to time shall accrue yield ("Yield") at the Lessor Rate, computed
using the actual number of days elapsed and a 360 day year. If all or a portion
of the principal amount of or yield on the Lessor's Invested Amounts shall not
be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall, without limiting the rights of the
Lessor under the Lease, to the maximum extent permitted by law, accrue yield at
the Overdue Rate, from the date of nonpayment until paid in full (both before
and after judgment).
(b) Each Lender's Funded Amount for any Leased Property outstanding
from time to time shall accrue interest as provided in the Loan Agreement.
(c) During the Construction Term, in lieu of the payment of accrued
interest, on each Payment Date, each Lender's Funded Amount in respect of a
Construction Land Interest shall automatically be increased by the amount of
interest accrued and unpaid on the related Loans pursuant to the Loan Agreement
during the Rent Period ending immediately prior to such Payment Date (except to
the extent that at any time such increase would cause such Lender's Funded
Amount to exceed such Lender's Commitment, in which event the related Lessee
shall pay such excess amount to such Lender in immediately available funds on
such Payment Date). Similarly, in lieu of the payment of accrued Yield, on each
Payment Date, the Lessor's Invested Amount in respect of a Construction Land
Interest shall automatically be increased by the amount of Yield accrued on the
Lessor's Invested Amount in respect of such Leased Property during the Rent
Period ending immediately prior to such Payment Date (except to the extent that
at any time such increase would cause the Lessor's Invested Amount to exceed
the Lessor's Commitment, in which event the related Lessee shall pay such
excess amount to the Lessor in immediately available funds on such Payment
Date). Such increases in Funded Amounts shall occur without any disbursement of
funds by the Funding Parties.
(d) Three Business Days prior to the last day of each Rent Period, DAP
SUB shall deliver (which delivery may be by facsimile) to the Lessor and the
Agent a notice
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substantially in the form of Exhibit I (each, a "Payment Date Notice"),
appropriately completed, specifying the allocation of the Funded Amounts
related to such Rent Period to LIBOR Advances and Base Rate Advances and the
Rent Periods therefor, provided that no such allocation to LIBOR Advances shall
be in an amount less than $1,000,000. Each such Payment Date Notice shall be
irrevocable. If no such notice is given, the Funded Amounts shall be allocated
to a LIBOR Advance with a Rent Period of three (3) months.
SECTION 2.4 Lessee Owner for Tax Purposes. With respect to each Leased
Property, it is the intent of the Lessees and the Funding Parties that for
federal, state and local tax purposes and bankruptcy law purposes the Lease
shall be treated as the repayment and security provisions of a loan by the
Lessor to the Lessees, and that the related Lessee shall be treated as the
legal and beneficial owner entitled to any and all benefits of ownership of
such Leased Property and all payments of Basic Rent during the Lease Term shall
be treated as payments of interest and principal. Nevertheless, each of
Guarantor and each Lessee acknowledges and agrees that neither the Agent, nor
any Funding Party, nor any other Person has made any representations or
warranties concerning the tax, financial, accounting or legal characteristics
or treatment of the Operative Documents and that each of Guarantor and each
Lessee has obtained and relied solely upon the advice of its own tax,
accounting and legal advisors concerning the Operative Documents and the
accounting, tax, financial and legal consequences of the transactions
contemplated therein.
SECTION 2.5 Amounts Due Under Lease. With respect to each Leased
Property, anything else herein or elsewhere to the contrary notwithstanding, it
is the intention of the Lessees and the Funding Parties that: (i) subject to
clauses (ii) and (iii) below, the amount and timing of Basic Rent due and
payable from time to time from the related Lessee under the Lease shall be
equal to the aggregate payments due and payable with respect to interest on the
Loans in respect of such Leased Property and Yield on the Lessor's Invested
Amounts in respect of such Leased Property on each Payment Date; (ii) if the
related Lessee elects the Purchase Option with respect to a Leased Property or
becomes obligated to purchase such Leased Property under the Lease, the Funded
Amounts in respect of such Leased Property, all interest and Yield thereon and
all other obligations of the related Lessee owing to the Funding Parties in
respect of such Leased Property shall be paid in full by such Lessee prior to
or simultaneously with the closing of the purchase which is the subject of such
Purchase Option, (iii) if the Lessees properly elect the Remarketing Option,
the Lessees will only be required to pay the Recourse Deficiency Amount and the
other amounts required to be paid pursuant to Section 14.6 of the Lease, which
amounts shall be used to pay the principal of the A Loans, and the Lessees
shall only be required to pay to the Lenders the principal amount of the B
Loans and to the Lessor the Lessor's Invested Amounts, to the extent of the
proceeds of the sale of the Leased Properties in accordance with Section 14.6
of the Lease; and (iv) upon an Event of Default resulting in an acceleration of
the Lessees' obligation to purchase the Leased Properties under the Lease, the
amounts then due and payable by the Lessees under the Lease shall include all
amounts necessary to pay in full the Loans, and accrued interest thereon, the
Lessor's Invested Amounts and accrued Yield thereon
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and all other obligations of the Lessees owing to the Funding Parties pursuant
to the Operative Documents.
SECTION 2.6 Mississippi Bonds - Payment Acknowledgments. Pursuant to
(1) that certain Loan Agreement dated as of May 1, 2000 (as amended from time
to time, the "Bond Financing Loan Agreement") by and between the Mississippi
Business Finance Corporation ("MBFC") and AFG and assigned by MBFC to SunTrust
Bank, as Bond Trustee (in such capacity, the "Bond Trustee") under that certain
Trust Indenture dated as of May 1, 2000 (as amended from time to time, the
"Trust Indenture") by and between MBFC and SunTrust Bank, (2) that certain Bond
Purchase Contract, dated as of May 1, 2000 (as amended from time to time, the
"Bond Purchase Contract") among MBFC, AFG and SunTrust Bank and (3) that
certain Series 2000 Note issued in connection with the Mississippi Bonds (the
"Bond Financing Note") by AFG in favor of MBFC and assigned by MBFC to SunTrust
Bank, as Bond Trustee, (A) SunTrust Bank has agreed to purchase the Mississippi
Bonds from time to time and (B) AFG is obligated from time to time to make
certain principal and interest payments (the "Bond Financing Loan Payments") to
SunTrust Bank, as Bond Trustee, to fund the repayment of the Mississippi Bonds,
using funds paid to AFG pursuant to the Lease.
The parties hereto agree that the funds advanced by SunTrust Bank
pursuant to the Bond Purchase Contract (i) will be deemed to be Loans pursuant
to the Loan Agreement for all purposes of the Operative Documents, (ii) will
satisfy the Lender's obligation to fund Advances pursuant to Section 2.2 to the
extent of such advanced funds and (iii) will accrue interest at the rate set
forth in the Loan Agreement. Such funds represent the same funds advanced to
AFG by MBFC through the Trust Indenture. Accordingly, SunTrust Bank, in its
capacity as Agent, Lender, Bond Trustee and owner of the Mississippi Bonds, and
the other parties hereto, agree that (1) all payments of interest made by or on
behalf of AFG to the Bond Trustee, and in turn paid by the Bond Trustee to the
owner of the Mississippi Bonds, shall also be treated and considered to be
payments of interest made by AFG to the Lender under the Loan Agreement and the
Notes and shall be credited against the interest payment obligations of AFG to
the Lender under the Loan Agreement and the Notes, and (2) all payments of
principal made by or on behalf of AFG to the Bond Trustee, and in turn paid by
the Bond Trustee to the owner of the Mississippi Bonds, shall also be treated
as and considered to be payments of principal made by AFG to the Lender under
the Loan Agreement and the Notes and shall be credited against the principal
payment obligations of AFG to the Lender under the Loan Agreement and the
Notes.
SunTrust Bank agrees that (1) it will not assign any interest in the
Mississippi Bonds and the related rights under the Trust Indenture to any other
person unless (a) such assignment is permitted under the terms of the
Mississippi Bonds and the Trust Indenture and (b) it simultaneously assigns to
such person its corresponding interest in the Notes and the related rights
under the Loan Agreement, and (2) it will not assign any interest in the
Synthetic Lease Notes and the related rights under the Loan Agreement to any
other person unless (a) such assignment is permitted under the terms of the
Operative Documents and (b) it simultaneously
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assigns to such person its corresponding interest in the Mississippi Bonds and
the related rights under the Trust Indenture.
ARTICLE III.
CONDITIONS PRECEDENT; DOCUMENTS
SECTION 3.1 Conditions to the Obligations of the Funding Parties on
each Closing Date. The obligations of the Lessor and each Lender to carry out
their respective obligations under Section 2 of this Master Agreement to be
performed on the Closing Date with respect to any Land and any Building thereon
shall be subject to the fulfillment to the satisfaction of, or waiver by, each
such party hereto (acting directly or through its counsel), on or prior to such
Closing Date of the following conditions precedent, provided that the
obligations of any Funding Party shall not be subject to any conditions
contained in this Section 3.1 which are required to be performed by such
Funding Party:
(a) Documents. The following documents shall have been executed and
delivered by the respective parties thereto:
(i) Deed and Purchase Agreement. The related original Deed
duly executed by the applicable Seller in favor of the Lessor and in
recordable form, and copies of the related Purchase Agreement,
assigned to the Lessor (unless Lessor is the original party thereto),
shall each have been delivered to the Agent by DAP SUB or the related
Lessee, with copies thereof to each other Funding Party or the related
Ground Lease, duly assigned to the Lessor (unless Lessor is the
original party thereto), shall have been delivered to the Agent, with
copies thereof to each other Funding Party, as applicable (it being
understood, that each Purchase Agreement and each Ground Lease shall
be reasonably satisfactory in form and substance to the Lessor and the
Lenders).
(ii) Lease Supplement. The original of the related Lease
Supplement, duly executed by the related Lessee and the Lessor and in
recordable form, shall have been delivered to the Agent by such
Lessee.
(iii) Mortgage and Assignment of Lease and Rents.
Counterparts of the Mortgage (substantially in the form of Exhibit D-1
or D-2, as the case may be, attached hereto), duly executed by the
Lessor and in recordable form, shall have been delivered to the Agent
(which Mortgage shall secure all of the debt of the Lessor to the
Agent unless such mortgage is subject to a tax based on the amount of
indebtedness secured thereby, in which case the amount secured will be
limited to debt of the Lessor in an amount equal to 125% of the
projected cost of
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acquisition and construction of such Leased Property); and the
Assignment of Lease and Rents (substantially in the form of Exhibit B
attached hereto) in recordable form, duly executed by the Lessor,
shall have been delivered to the Agent by the Lessor.
(iv) Security Agreement and Assignment. If Buildings are to
be constructed on the Land, counterparts of the Security Agreement and
Assignment (substantially in the form of Exhibit C attached hereto),
duly executed by the Construction Agent, with an acknowledgment and
consent thereto satisfactory to the Lessor and the Agent duly executed
by the related General Contractor and the related Architect or
Engineer, as applicable, and complete copies of the related
Construction Contract and the related Architect's Agreement or
Engineer's Agreement certified by the Construction Agent, shall have
been delivered to the Lessor and the Agent (it being understood and
agreed that if no related Construction Contract or Architect's
Agreement or Engineer's Agreement exists on such Closing Date, such
delivery shall not be a condition precedent to the Funding on such
Closing Date, and in lieu thereof the Construction Agent shall deliver
complete copies of such Security Agreement and Assignment and consents
concurrently with the Construction Agent's entering into such
contracts).
(v) Survey. The related Lessee shall have delivered, or
shall have caused to be delivered, to the Lessor and the Agent, at
such Lessee's expense, an accurate survey certified to the Lessor and
the Agent in a form reasonably satisfactory to the Lessor and the
Agent and showing no state of facts unsatisfactory in any material
respect to the Lessor or the Agent and prepared within ninety (90)
days of such Closing Date (or such other time period agreed to by the
Lessor and the Agent) by a Person reasonably satisfactory to the
Lessor and the Agent. Such survey shall (1) be acceptable to the Title
Insurance Company for the purpose of providing extended coverage to
the Lessor and a lender's comprehensive endorsement to the Agent, (2)
show no encroachments on such Land by structures owned by others, and
no encroachments from any part of such Leased Property onto any land
owned by others, in either case which are reasonably objectionable to
the Lessor, the Agent or the Title Insurance Company, and (3) disclose
no state of facts reasonably objectionable to the Lessor, the Agent or
the Title Insurance Company, and be reasonably acceptable to each such
Person.
(vi) Title and Title Insurance. On such Closing Date, the
Lessor shall receive from a title insurance company reasonably
acceptable to the Lessor and the Agent an ALTA Owner's Policy of Title
Insurance issued by such title insurance company and the Agent shall
receive from such title insurance company an ALTA Mortgagee's Policy
of Title Insurance issued by such title insurance company, in each
case, in the amount of the projected cost of acquisition and
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construction of such Leased Property, reasonably acceptable in form
and substance to the Lessor and the Agent, respectively (collectively,
the "Title Policy"). The Title Policy shall be dated as of such
Closing Date, and, to the extent permitted under Applicable Law, shall
include such affirmative endorsements as the Lessor or the Agent shall
reasonably request.
(vii) Appraisal. Each Funding Party shall have received a
report of the Appraiser (an "Appraisal"), paid for by Guarantor or the
related Lessee, which shall meet the requirements of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, shall be
satisfactory to such Funding Party and shall state in a manner
satisfactory to such Funding Party the estimated "as vacant" value of
such Land and existing Buildings or any Building to be constructed
thereon. Such Appraisal must show that the "as vacant" value of such
Leased Property (if a Building is to be constructed on the Land,
determined as if the Building had already been completed in accordance
with the related Plans and Specifications and by excluding from such
value the amount of assessments on such Leased Property) is at least
45% of the total cost of such Leased Property.
(viii) Environmental Audit and related Reliance Letter. The
Lessor and the Agent shall have received an Environmental Audit for
such Leased Property, which shall be conducted in accordance with ASTM
standards and shall not include a recommendation for further
investigation and is otherwise satisfactory to the Lessor and the
Agent; and the firm that prepared the Environmental Audit for such
Leased Property shall have delivered to the Lessor and the Agent a
letter stating that the Lessor, the Agent and the Lenders may rely
upon such firm's Environmental Audit of such Land, it being understood
that the Lessor's and the Agent's acceptance of any such Environmental
Audit shall not release or impair any Lessee's obligations under the
Operative Documents with respect to any environmental liabilities
relating to such Leased Property.
(ix) Evidence of Insurance. The Lessor and the Agent shall
have received from the related Lessee certificates of insurance
evidencing compliance with the provisions of Article VIII of the Lease
(including the naming of the Lessor, the Agent and the Lenders as
additional insured or loss payee with respect to such insurance, as
their interests may appear), in form and substance reasonably
satisfactory to the Lessor and the Agent.
(x) UCC Financing Statement; Recording Fees; Transfer
Taxes. Each Funding Party shall have received satisfactory evidence of
(i) the execution and delivery to Agent of a UCC-1 and, if required by
applicable law, UCC-2 financing statement to be filed with the
Secretary of State of the applicable State (or other appropriate
filing office) and the county where the related Land is located,
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respectively, and such other Uniform Commercial Code financing
statements as any Funding Party deems necessary or desirable in order
to perfect such Funding Party's interests and (ii) the payment of all
recording and filing fees and taxes with respect to any recordings or
filings made of the related Deed, the Lease, the related Lease
Supplement, the related Mortgage and the related Assignment of Lease
and Rents.
(xi) Opinions. An opinion of local counsel for the related
Lessee qualified in the jurisdiction in which such Leased Property is
located, substantially in the form set forth in Exhibit G-2 attached
hereto, and containing such other matters as the parties to whom they
are addressed shall reasonably request, shall have been delivered and
addressed to each of the Lessor, the Agent and the Lenders. To the
extent reasonably requested by the Agent, opinions supplemental to
those delivered under Section 3.2(vi) and reasonably satisfactory to
the Agent shall have been delivered and addressed to each of the
Lessor, the Agent and the Lenders.
(xii) Good Standing Certificates. The Agent shall have
received good standing certificates for the Lessor and the related
Lessee from the appropriate offices of the state where the related
Land is located.
(xiii) IDB Property. If such Leased Property is an IDB
Property or is otherwise subject to industrial development or revenue
bonds, the IDB Documentation shall have been executed by the parties
thereto, and shall be in form and substance reasonably acceptable to
the Agent, the Lessor and the Lenders.
(b) Litigation. No action or proceeding shall have been instituted or,
to the knowledge of any Funding Party, threatened nor shall any governmental
action, suit, proceeding or investigation be instituted or threatened before
any Governmental Authority, nor shall any order, judgment or decree have been
issued or proposed to be issued by any Governmental Authority, to set aside,
restrain, enjoin or prevent the performance of this Master Agreement or any
transaction contemplated hereby or by any other Operative Document or which is
reasonably likely to materially adversely affect any Leased Property or any
transaction contemplated by the Operative Documents or which would reasonably
be expected to result in a Material Adverse Effect.
(c) Legality. In the opinion of such Funding Party or its counsel, the
transactions contemplated by the Operative Documents shall not violate any
Applicable Law, and no change shall have occurred or been proposed in
Applicable Law that would make it illegal for such Funding Party to participate
in any of the transactions contemplated by the Operative Documents.
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(d) No Events. (i) No Event of Default, Potential Event of Default,
Event of Loss or Event of Taking relating to such Leased Property shall have
occurred and be continuing, (ii) no action shall be pending or threatened by a
Governmental Authority to initiate a Condemnation or an Event of Taking, and
(iii) there shall not have occurred any event that would reasonably be expected
to have a Material Adverse Effect since February 29, 2000.
(e) Representations. Each representation and warranty of the parties
hereto or to any other Operative Document contained herein or in any other
Operative Document shall be true and correct in all material respects as though
made on and as of such Closing Date, except to the extent such representations
or warranties relate solely to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects on and as of such earlier date.
(f) Cutoff Date. No Closing Date shall occur after the Funding
Termination Date.
(g) Transaction Expenses. The related Lessee shall have paid, or made
arrangements to pay, the transaction costs then accrued and invoiced which the
Lessees have agreed to pay pursuant to Section 8.8.
(h) Approval. The Agent shall not have rejected such Leased Property
for inclusion in the Lease by written notice to DAP SUB.
SECTION 3.2 Additional Conditions for the Initial Closing Date. The
obligations of the Lessor and each Lender to carry out their respective
obligations under Section 2 of this Master Agreement to be performed on the
Initial Closing Date shall be subject to the satisfaction of, or waiver by,
each such party hereto (acting directly or through its counsel), on or prior to
the Initial Closing Date of the following conditions precedent in addition to
those set forth in Section 3.1, provided that the obligations of any Funding
Party shall not be subject to any conditions contained in this Section 3.2
which are required to be performed by such Funding Party:
(i) Loan Agreement; Guaranty Agreement. Counterparts of
the Loan Agreement, duly executed by the Lessor, the Agent and each
Lender shall have been delivered to each of the Lessor and the Agent.
An A Note and a B Note, duly executed by the Lessor, shall have been
delivered to the Agent. The Guaranty Agreement, duly executed by DAP,
shall have been delivered to the Agent. The Subsidiary Guaranty and
the Contribution Agreement, duly executed by the Subsidiary
Guarantors, shall have been delivered to the Agent.
(ii) Master Agreement. Counterparts of this Master
Agreement, duly executed by the parties hereto, shall have been
delivered to each of the parties hereto.
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(iii) Construction Agency Agreement. Counterparts of the
Construction Agency Agreement, duly executed by the parties thereto
shall have been delivered to each of the parties hereto.
(iv) Lease. Counterparts of the Lease, duly executed by
the Lessees party to this Master Agreement on the Initial Closing
Date, and the Lessor, shall have been delivered to each Funding Party
and the original, chattel paper copy of the Lease shall have been
delivered to the Agent.
(v) Lessee's Resolutions and Incumbency Certificate, etc.
Each of the Agent and the Lessor shall have received (x) a certificate
of the Secretary or an Assistant Secretary of each of Guarantor and
each Lessee party hereto on the Initial Closing Date, attaching and
certifying as to (i) the Board of Directors' (or appropriate
committee's) resolution duly authorizing the execution, delivery and
performance by it of each Operative Document to which it is or will be
a party, (ii) the incumbency and signatures of persons authorized to
execute and deliver such documents on its behalf, (iii) its articles
or certificate of incorporation, certified as of a recent date by the
Secretary of State of the state of its incorporation and (iv) its
by-laws, and (y) good standing or active status certificates for each
of Guarantor and each Lessee party hereto on the Initial Closing Date
from the appropriate offices of the States of Guarantor's or such
Lessee's incorporation and principal place of business.
(vi) Opinions of Counsel. The opinion of Trenam Kemker,
Scharf, Barkin, Frye, ▇'▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., dated the Initial
Closing Date, substantially in the form set forth in Exhibit G-1,
attached hereto, and containing such other matters as the parties to
whom it is addressed shall reasonably request, shall have been
delivered and addressed to each of the Lessor, the Agent and the
Lenders. The opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & Oaks ▇▇▇▇▇▇▇▇, LLP, dated
the Initial Closing Date, substantially in the form set forth in
Exhibit G-3 attached hereto, and containing such other matters as the
parties to whom it is addressed shall reasonably request, shall have
been delivered to each of the Agent, the Lenders and DAP SUB.
(vii) Good Standing Certificate. The Agent and DAP SUB shall
have received a good standing certificate for the Lessor and the
General Partner from the appropriate office of the State of Texas.
(viii) Lessor's Consents and Incumbency Certificate, etc. The
Agent and DAP SUB shall have received a certificate of the Secretary
or an Assistant Secretary of the General Partner of the Lessor
attaching and certifying as to (i) the consents of the partners of the
Lessor duly authorizing the execution, delivery and
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performance by it of each Operative Document to which it is or will be
a party, (ii) the incumbency and signatures of persons authorized to
execute and deliver such documents on its behalf, and (iii) the
Partnership Agreement.
(ix) Increase in Revolving Credit Agreement. Bank of
America, N.A. shall have increased its commitment under the Revolving
Credit Agreement by no less than $15,000,000 pursuant to terms and
conditions acceptable to SunTrust.
SECTION 3.3 Conditions to the Obligations of Lessee. The obligations
of any Lessee to lease a Leased Property from the Lessor are subject to the
fulfillment on the related Closing Date to the satisfaction of, or waiver by,
such Lessee, of the following conditions precedent:
(a) General Conditions. The conditions set forth in Sections 3.1 and
3.2 that require fulfillment by the Lessor or the Lenders shall have been
satisfied, including the delivery of good standing certificates by the Lessor
pursuant to Sections 3.1(a)(xiv) and 3.2(vii) and the delivery of an opinion of
counsel for the Lessor pursuant to Section 3.2(vi) and the execution and
delivery of the Operative Documents to be executed by the Lessor or the Lenders
in connection with such Leased Property.
(b) Legality. In the opinion of such Lessee or its counsel, the
transactions contemplated by the Operative Documents shall not violate any
Applicable Law, and no change shall have occurred or been proposed in
Applicable Law that would make it illegal for such Lessee to participate in any
of the transactions contemplated by the Operative Documents.
(c) Purchase Agreement; Ground Lease. The Purchase Agreement and, if
applicable, the Ground Lease and all documents to be delivered under the
Purchase Agreement or Ground Lease, including title insurance, survey and
environmental audit, shall be reasonably satisfactory to such Lessee.
SECTION 3.4 Conditions to the Obligations of the Funding Parties on
each Funding Date. The obligations of the Lessor and each Lender to carry out
their respective obligations under Section 2 of this Master Agreement to be
performed on each Funding Date shall be subject to the fulfillment to the
satisfaction of, or waiver by, each such party hereto (acting directly or
through their respective counsel) on or prior to each such Funding Date of the
following conditions precedent, provided that the obligations of any Funding
Party shall not be subject to any conditions contained in this Section 3.4
which are required to be performed by such Funding Party:
(a) Funding Request. The Lessor and the Agent shall have received from
the Construction Agent or a Lessee the Funding Request therefor pursuant to
Section 2.2(d).
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(b) Condition Fulfilled. As of such Funding Date, the condition set
forth in Section 3.1(d) shall have been satisfied.
(c) Representations. As of such Funding Date, both before and after
giving effect to the Funding requested by the Construction Agent or a Lessee on
such date, the representations and warranties that the Construction Agent or
such Lessee is deemed to make pursuant to Section 2.2(e) shall be true and
correct in all material respects on and as of such Funding Date as though made
on and as of such Funding Date, except to the extent such representations or
warranties relate solely to an earlier date, in which case such representations
and warranties shall have been true and correct in all material respects on and
as of such earlier date.
(d) No Bonded Stop Notice or Filed Mechanics Lien. As of such Funding
Date, and as to any Funded Amount requested for any Leased Property on such
Funding Date, (i) none of the Lessor, the Agent or any Lender has received
(with respect to such Leased Property) a bonded notice to withhold Loan funds
that has not been discharged by the related Lessee or the Construction Agent,
and (ii) no mechanic's liens or materialman's liens have been filed against
such Leased Property that have not been discharged by the related Lessee,
bonded over in a manner reasonably satisfactory to the Agent or insured over by
the Title Insurance Company.
(e) Lease Supplement. If the Funding relates to a Building that will
be leased under a Lease Supplement separate from the Lease Supplement for the
related Land, the original of such separate Lease Supplement, duly executed by
the related Lessee and the Lessor and in recordable form, shall have been
delivered to the Agent.
SECTION 3.5 Completion Date Conditions. The occurrence of the
Completion Date with respect to any Leased Property shall be subject to the
fulfillment to the satisfaction of, or waiver by, each party hereto (acting
directly or through its counsel) of the following conditions precedent:
(a) Title Policy Endorsements; Architect's Certificate. The
Construction Agent shall have furnished to each Funding Party (1) the following
endorsements to the related Title Policy (each of which shall be subject to no
exceptions other than those reasonably acceptable to the Agent): a date-down
endorsement (redating and confirming the coverage provided under the Title
Policy and each endorsement thereto) and a "Form 9" endorsement (if available
in the applicable jurisdiction), in each case, effective as of a date not
earlier than the date of completion of the Construction, and (2) a certificate
of the Architect or Engineer dated at or about the Completion Date, in form and
substance reasonably satisfactory to the Agent, the Lessor and the Lenders, and
stating that (i) the related Building has been completed substantially in
accordance with the Plans and Specifications therefor, and such Leased Property
is ready for occupancy, (ii) such Plans and Specifications comply in all
material respects with all Applicable Laws in effect at such time, and (iii) to
the best of the Architect's or Engineer's knowledge, such
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Leased Property, as so completed, complies in all material respects with all
Applicable Laws in effect at such time. The Construction Agent shall also
deliver to the Agent true and complete copies of: (A) an "as built" or "record"
set of the Plans and Specifications, (B) a plat of survey of such Leased
Property "as built" to a standard reasonably acceptable to the Agent showing
all easements, paving, driveways, fences and exterior improvements, and (C)
copies of a certificate or certificates of occupancy for such Leased Property
or other legally equivalent permission to occupy such Leased Property.
(b) Construction Completion. Any related Construction shall have been
completed substantially in accordance with the related Plans and Specifications
(subject to minor punch list requirements), the related Deed and all Applicable
Laws, and such Leased Property shall be ready for occupancy and operation. All
fixtures, equipment and other property contemplated under the Plans and
Specifications to be incorporated into or installed in such Leased Property
shall have been substantially incorporated or installed, free and clear of all
Liens except for Permitted Liens.
(c) Construction Agent Certification. The Construction Agent shall
have furnished the Lessor, the Agent and each Lender with a certification of
the Construction Agent (substantially in the form of Exhibit H) that:
(i) all amounts owing to third parties for the related
Construction have been paid in full (other than contingent obligations
for which the Construction Agent, as agent for the Lessor, has made
adequate reserves), and no litigation or proceedings are pending, or
to the best of the Construction Agent's knowledge, are threatened,
against such Leased Property or the Construction Agent or the related
Lessee which could reasonably be expected to have a Material Adverse
Effect;
(ii) all material consents, licenses and permits and other
governmental authorizations or approvals required for such
Construction and operation of such Leased Property have been obtained
and are in full force and effect;
(iii) such Leased Property has available all services of
public facilities and other utilities necessary for use and operation
of such Leased Property for its intended purposes including, without
limitation, adequate water, gas and electrical supply, storm and
sanitary sewerage facilities, telephone, other required public
utilities and means of access between the related Building and public
highways for pedestrians and motor vehicles;
(iv) all material agreements, easements and other rights,
public or private, which are necessary to permit the lawful use and
operation of such Leased Property as the related Lessee intends to use
such Leased Property under the Lease and which are necessary to permit
the lawful intended use and operation of all then intended utilities,
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driveways, roads and other means of egress and ingress to and from the
same have been obtained and are in full force and effect and neither
the Construction Agent nor the related Lessee has any knowledge of any
pending modification or cancellation of any of the same; and the use
of such Leased Property does not depend on any variance, special
exception or other municipal approval, permit or consent that has not
been obtained and is in full force and effect for its continuing legal
use;
(v) all of the requirements and conditions set forth in
Section 3.5(b) hereof have been completed and fulfilled with respect
to such Leased Property and the related Construction; and
(vi) to the best of the Construction Agent's knowledge, such
Leased Property is in compliance in all material respects with all
applicable zoning laws and regulations.
SECTION 3.6 Addition of Lessees. After the date hereof, additional
Subsidiaries of DAP may become Lessees hereunder and under the other Operative
Documents upon satisfaction of the following conditions precedent:
(a) such Subsidiary and the Guarantor shall have executed and
delivered to the Agent and the Lessor a Joinder Agreement, substantially in the
form of Exhibit E;
(b) such Subsidiary shall have delivered to each of the Agent and the
Lessor (x) a certificate of the Secretary or an Assistant Secretary of such
Subsidiary, attaching and certifying as to (i) the Board of Directors'
resolution duly authorizing the execution, delivery and performance by it of
each Operative Document to which it is or will be a party, (ii) the incumbency
and signatures of persons authorized to execute and deliver such documents on
its behalf, (iii) its articles or certificate of incorporation, certified as of
a recent date by the Secretary of State of its incorporation and (iv) its
by-laws, and (y) good standing or active status certificates from the
appropriate offices of the States of such Subsidiary's incorporation and
principal place of business;
(c) such Subsidiary shall have delivered an opinion of Trenam Kemker,
Scharf, Barkin, Frye, ▇'▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., or other counsel to such
Subsidiary, addressed to each of the Lessor, the Agent and the Lenders,
substantially in the form set forth in Exhibit G-1; and
(d) the Agent, the Lessor and the Lenders shall have received such
other documents, certificates and information as any of them shall have
reasonably requested.
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ARTICLE IV.
REPRESENTATIONS
SECTION 4.1 Representations of DAP, DAP SUB and other Lessees.
Effective as of the date of execution hereof, as of each Closing Date and as of
each Funding Date, each of DAP, DAP SUB and each other Lessee represents and
warrants to each of the other parties hereto as follows:
(a) Organization and Qualification. DAP is a corporation duly
organized and existing in active status under the laws of the State of Florida.
Each Subsidiary of DAP is a corporation duly organized and existing under the
laws of the jurisdiction of its incorporation. DAP and each of its Subsidiaries
are duly qualified to do business as a foreign corporation and in good standing
or active status in each jurisdiction in which the character of its properties
or the nature of its business makes such qualification necessary, except for
such jurisdictions in which a failure to qualify to do business would not have
a Material Adverse Effect. DAP and each of its Subsidiaries have the corporate
power to own its properties and to carry on its business as now being
conducted.
(b) Corporate Authority. The execution and delivery by DAP, DAP SUB
and each other Obligor of and the performance by DAP, DAP Sub and each other
Obligor of its obligations under the Operative Documents to which it is,
respectively a party have been duly authorized by all requisite corporate
action and all requisite shareholder action, if any, on the part of DAP, DAP
Sub and each other Obligor and do not and will not (i) violate any provision of
any law, rule or regulation, any judgment, order or ruling of any court or
governmental agency, the organizational papers or bylaws of DAP, DAP Sub and
each other Obligor or, except for any Incidental Contracts, any indenture,
agreement or other instrument to which DAP, DAP Sub and each other Obligor is a
party or by which DAP, DAP Sub and each other Obligor or any of its properties
is bound, or (ii) except for any Incidental Contracts, be in conflict with,
result in a breach of, or constitute with notice or lapse of time or both a
default under any such indenture, agreement or other instrument where the
effect would be likely to have a Material Adverse Effect.
(c) Financial Statements. DAP has furnished the Funding Parties with
the following financial statements, identified by the Chief Financial Officer
of DAP: audited balance sheet of the DAP as at June 1, 1999, and audited
statement of income and consolidated statement of stockholders' equity of DAP
for the fiscal year ended on such date certified by Ernst & Young, LLP,
Certified Public Accountants and internally prepared financial statements for
the fiscal quarters ended August 31, 1999, November 30, 1999 and February 29,
2000. Such financial statements (including any related schedules and notes) are
true and correct in all material respects, have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the period or periods in question (subject as to interim statements, to
omissions or condensations as stated in the notes thereto, to the change in
accounting practices
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disclosed in the notes thereto and to changes resulting from audits and year
end adjustments) and show, in the case of audited statements, all liabilities,
direct or contingent, of DAP required to be shown in accordance with generally
accepted accounting principles consistently applied throughout the period or
periods in question and fairly present in all material respects the
consolidated financial position and the consolidated results of operations of
DAP for the periods indicated therein. Except as described in Schedule 4.1(c),
there has been no change in the business, condition or operations, financial or
otherwise, of DAP since February 29, 2000 which is reasonably likely to have a
Material Adverse Effect.
(d) Tax Returns. Except as set forth on Schedule 4.1(d), DAP has filed
all federal, state and other tax returns and reports which, to the best
knowledge of the Senior Management of DAP, are required to be filed, and has
paid all taxes as shown on said returns and all other taxes, assessments, fees
and other governmental charges upon DAP or upon any of the properties, assets,
incomes or franchises of DAP, to the extent that such taxes, assessments, fees
and other governmental charges have become due or except such as are being
contested in good faith by appropriate proceedings for which adequate reserves
have been established in accordance with GAAP and/or except where the unfiled
returns and unpaid Taxes relate to aggregate unpaid state or local Taxes no
greater than $500,000.00 in the aggregate.
(e) Actions Pending; Compliance With Laws. Except as disclosed on
Schedule 4.1(e) hereto, there is no action, suit, investigation or proceeding
pending or, to the knowledge of DAP, threatened against or affecting DAP or any
of its properties or rights, by or before any court, arbitrator or
administrative or governmental body, which could reasonably be expected to
result in any Material Adverse Effect. Except as disclosed on Schedule 4.1(e)
hereto, DAP has not received notice of and is not otherwise aware that it is in
or alleged to be in violation of any Requirement of Law, except where failure
to comply would not have a Material Adverse Effect.
(f) Representations; No Defaults. At the time of each Funding there
shall exist no Default or Event of Default.
(g) Title to Properties; Capitalized Leases. Except for Liens
described in Section 5.13(h) and that portion of DAP's assets to which it does
not have marketable title (calculated at cost or market value, whichever is
higher), all of which may have an aggregate value up to $3,000,000.00, DAP has
(i) good and marketable fee simple title to its respective real properties
(other than real properties which it leases from others), including such real
properties reflected in the balance sheet of DAP described in Section 4.1(c)
above (other than real properties disposed of in the ordinary course of
business), subject to no Lien of any kind except Liens set forth on Schedule
5.13 or permitted by Section 5.13 and (ii) good title to all of its other
respective properties and assets (other
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than properties and assets which it leases from others), including the other
properties and assets reflected in the balance sheet of DAP described in
Section 4.1(c) above (other than properties and assets disposed of in the
ordinary course of business), subject to no Lien of any kind except Liens set
forth on Schedule 5.13 or permitted by Section 5.13. DAP enjoys peaceful and
undisturbed possession under all leases necessary in any material respect for
the operation of its respective properties and assets, none of which contains
any unusual or burdensome provisions which might materially affect or impair
the operation of such properties and assets, and all such leases are valid and
subsisting and in full force and effect. As of the Initial Closing Date, there
are no Capitalized Lease Obligations except as disclosed on Schedule 4.1(g)
hereto.
(h) Enforceability of Agreement. Each Operative Document to which any
Obligor is a party is the legal, valid and binding agreement of such Obligor
enforceable against such Obligor in accordance with its terms except as the
enforceability of the Operative Documents may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws affecting creditor's
rights and remedies in general and by general principles of equity, whether
considered in a proceeding at law or in equity.
(i) Consent. Except for consents of parties to any Incidental
Contracts, no consent, permission, authorization, order or license of or filing
with any governmental authority or Person which has not been obtained or made
is necessary in connection with the execution, delivery, performance or
enforcement of the Operative Documents by the Credit Parties, or in order to
constitute the obligations to be incurred under the Operative Documents as
"Senior Debt" or any similar term defined within any documents executed in
connection with any Subordinated Debt.
(j) Use of Proceeds; Federal Reserve Regulations. The proceeds of the
Fundings will be used solely for the purposes specified in Section 2.2 and none
of such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any "margin security" or "margin stock" or for the
purpose of reducing or retiring any indebtedness that originally was incurred
to purchase or carry a "margin security" or "margin stock" or for any other
purpose that might constitute this transaction a "purpose credit" within the
meaning of the regulations of the Board of Governors of the Federal Reserve
System.
(k) ERISA.
(1) Identification of Certain Plans. Schedule 4.1(k) hereto sets
forth all Plans of DAP and its Subsidiaries in effect on the
Initial Closing Date (true and accurate copies of which,
together with the most recent IRS determination letter, the
most recent annual reports on form 5500, and summary plan
descriptions with
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respect thereto, if applicable, will be furnished to the
Agent promptly upon its request therefor).
(2) Compliance, Etc. (i) DAP and each of its ERISA Affiliates are
in compliance with ERISA and the Code in all material
respects and no Reportable Event has occurred and is
continuing with respect to any Plan; (ii) to the knowledge of
DAP or any ERISA Affiliate, no notice of intent to terminate
a Plan has been filed nor has any Plan been terminated, the
termination of which would result in liability to DAP or any
ERISA Affiliate that would have a Material Adverse Effect;
(iii) no circumstance exists which constitutes grounds under
Act Section 4042 of ERISA entitling the PBGC to institute
proceedings to terminate, or appoint a trustee to administer
a Plan, nor has the PBGC instituted any such proceedings;
(iv) neither DAP nor any ERISA Affiliate has completely or
partially withdrawn under Act Sections 4201 or 4204 of ERISA
from a Multiemployer Plan which withdrawal would result in
material liability to DAP or any ERISA Affiliate; (v) DAP and
each ERISA Affiliate has met its minimum funding requirements
under ERISA with respect to all of its Plans and there are no
unfunded vested liabilities except as set forth on Schedule
4.1(k); and (vi) neither DAP nor any ERISA Affiliate has
incurred any liability to the PBGC under ERISA which
liability has not been satisfied.
(l) Subsidiaries. As of the date hereof, DAP has no Subsidiaries,
except as set forth on Schedule 4.1(1). All representations and warranties made
in this Section 4.1 shall also be true and correct as to any and all
Wholly-Owned Subsidiaries of DAP hereafter formed or acquired throughout the
term of this Master Agreement.
(m) Outstanding Consolidated Funded Debt. Except as set forth on
Schedule 4.1(m), as of the Initial Closing Date and after giving effect to the
transactions contemplated by this Master Agreement, DAP has no outstanding
Consolidated Funded Debt and there exists no default; and, after giving effect
to the transactions contemplated in this Master Agreement, there will exist no
default under the provisions of any instrument evidencing such Consolidated
Funded Debt or of any agreement relating thereto except as noted on Schedule
4.1(m).
(n) Conflicting Agreements; Dividend or Redemption Limitations. DAP is
not a party to any contract or agreement or subject to any charter, bylaw or
other corporate restriction which could reasonably be expected to have a
Material Adverse Effect. Assuming the consummation of the transactions
contemplated by this Master Agreement, neither the execution or delivery of
this Master Agreement or the Operative Documents, nor fulfillment of or
compliance with the terms and provisions hereof and thereof, will conflict
with, or result in a breach of the terms, conditions or provisions of, or
constitute a default under, or result in any violation of, or result in the
creation of any Lien upon any
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of the properties or assets of any Obligor pursuant to, the charter or by-laws
of such Obligor, any award of any arbitrator or any agreement (including any
agreement with stockholders), instrument, order, judgment, decree, statute,
law, rule or regulation to which any Obligor is subject. As of the Initial
Closing Date, DAP is not a party to, or otherwise subject to any provision
contained in, any instrument evidencing Consolidated Funded Debt of DAP, any
agreement relating thereto or any other contract or agreement (including its
charter but excluding Incidental Contracts) which limits the amount of, or
otherwise imposes restrictions on the incurring of, obligations of the type to
be evidenced by the Operative Documents or contains dividend or redemption
limitations on Common Stock of DAP, except for this Master Agreement, DAP's
Articles of Incorporation and those matters listed on Schedule 4.1(n) attached
hereto.
(o) Environmental Matters - General.
(1) Except as set forth on Schedule 4.1(o)(1), DAP has to its
knowledge complied in all material respects (except for
instances of noncompliance that have been resolved prior to
the Initial Closing Date to the satisfaction of the
applicable environmental regulatory agency) with all
applicable Environmental Laws, including without limitation,
compliance with permits, licenses, standards, schedules and
timetables issued pursuant to Environmental Laws, and is not
in violation of, and does not presently have outstanding any
liability under, has not been notified that it is or may be
liable under and does not have knowledge of any liability or
potential liability under any applicable Environmental Law,
including without limitation, the Resource Conservation and
Recovery Act of 1976, as amended ("RCRA"), the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("CERCLA"), the Federal Water
Pollution Control Act, as amended ("FWPCA"), the Federal
Clean Air Act, as amended ("FCAA"), and the Toxic Substance
Control Act ("TSCA"), which violation, liability or potential
liability could reasonably be expected to have a Material
Adverse Effect.
(2) Except as set forth on Schedule 4.1(o)(2), as of the Initial
Closing Date, DAP has not received a written request for
information under CERCLA or any analogous state law, or
written notice that any such entity has been identified as a
potential responsible party under CERCLA, or any analogous
state law, nor has any such entity received any written
notification that any Hazardous Substance that it or any of
its respective predecessors in interest has generated,
stored, treated, handled, transported, or disposed of, has
been released or is threatened to be released at any site at
which any Person intends to conduct or is conducting a
remedial investigation or other action pursuant to any
applicable Environmental Law, or any other Environmental
Laws.
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(3) Except as set forth on Schedule 4.1(o)(3), DAP has obtained
all permits, licenses or other authorizations which are
material for the conduct of its operations under all
applicable Environmental Laws and with respect to which each
such authorization is in full force and effect except where
the failure to do so would not have a Material Adverse
Effect.
(4) Except as set forth in Schedule 4.1(o)(4), DAP complies in
all material respects with all laws and regulations relating
to equal employment opportunity and employee safety in all
jurisdictions in which it is presently doing business.
(p) Possession of Franchises, Licenses, Etc. DAP possesses all
franchises, certificates, licenses, permits and other authorizations from
governmental political subdivisions or regulatory authorities, free from
burdensome restrictions, that are necessary in any material respect for the
ownership, maintenance and operation of its properties and assets, the failure
of which to possess would have a Material Adverse Effect and DAP is not in
violation of any thereof in any material respect.
(q) Patents. Trademarks, Etc. Except as set forth on Schedule 4.1(q),
DAP owns or has the right to use all patents, trademarks, service marks, trade
names, copyrights, licenses, franchises and other rights, which are necessary
in any material respect for the operation of its business as presently
conducted or proposed to be conducted without any known conflict with the
rights of others, and, in each case, subject to no mortgage, pledge, lien,
lease, encumbrance, charge, security interest, title retention agreement or
option. To the knowledge of any member of Senior Management and except as set
forth in Schedule 4.1(q) (i) no product, process, method, substance, part,
piece of equipment or other material presently contemplated to be sold by or
employed by DAP in connection with its business may infringe any patent,
trademark, service ▇▇▇▇, trade name, copyright, license or other right owned by
any other Person, (ii) there is no pending or threatened claim or litigation
against or affecting DAP contesting its right to sell or use any such product,
process, method, substance, part, piece of equipment or other material or (iii)
there is no, or there is no pending or proposed, patent, invention, device,
application or principle or any statute, law, rule, regulation, standard or
code which would prevent, materially inhibit or render obsolete the production
or sale of any products of, or substantially reduce the projected revenues of,
or otherwise have a Material Adversely Effect.
(r) Governmental Consent. Neither the nature of DAP nor its business
or properties, nor any relationship between DAP and any other Person, nor any
circumstance in connection with the execution and delivery of the Operative
Documents and the consummation of the transactions contemplated thereby is such
as to require on behalf of DAP or any other Obligor any consent, approval or
other action by or any notice to or
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filing with any court or administrative or governmental body in connection with
the execution and delivery of this Master Agreement and the other Operative
Documents, except for such filings with the Securities and Exchange Commission
as may be required by applicable law (which filings DAP agrees to make promptly
and diligently pursue to completion).
(s) Disclosure. Neither this Master Agreement nor the other Operative
Documents nor any other document, certificate or written statement furnished to
Funding Parties or the Agent by or on behalf of DAP or any other Obligor in
connection herewith contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements contained
herein or therein, in light of the circumstances under which they were made,
not misleading. There is no fact peculiar to DAP or any other Obligor which
materially adversely affects or in the future may (so far as DAP can now
foresee) materially adversely affect the business, property or assets, or the
financial condition of DAP or any other Obligor which has not been set forth in
this Master Agreement or in the other Operative Documents, certificates and
written statements furnished to Funding Parties and the Agent or otherwise
furnished to the Funding Parties and the Agent by or on behalf of DAP prior to
the date hereof in connection with the transactions contemplated hereby.
(t) Labor Matters. Except as set forth on Schedule 4.1(t), the DAP has
experienced no strikes, labor disputes, slow downs or work stoppages due to
labor disagreements which have had, or would reasonably be expected to have, a
Material Adverse Effect, and, to the best knowledge of DAP's Senior Management,
there are no such strikes, disputes, slow downs or work stoppages threatened
against DAP or any other Obligor. The hours worked and payment made to
employees of DAP have not been in violation in any material respect of the Fair
Labor Standards Act or any other applicable law dealing with such matters. All
payments due from DAP, or for which any claim may be made against the
Consolidated Companies, on account of wages and employee health and welfare
insurance and other benefits have been paid or accrued as liabilities on the
books of DAP where the failure to pay or accrue such liabilities would
reasonably be expected to have a Material Adverse Effect.
(u) Intercompany Loans; Dividends. Except as set forth in the
Operative Documents and as specifically disclosed in Schedule 4.1(u) with
respect to agreements evidencing other Consolidated Funded Debt, there are no
restrictions as of the Closing Date on the power of any Consolidated Company to
repay any Intercompany Loan or to pay dividends on capital stock.
(v) Securities Acts. Neither DAP nor any agent acting on its behalf
has, directly or indirectly, taken or will take any action which would subject
the issuance of the Notes or any of the other Operative Documents to the
provisions of Section 5 of the
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Securities Act of 1933, as amended, or, to the best knowledge of DAP, to the
provisions of any securities or Blue Sky Law of any applicable jurisdiction.
(w) Investment Company Act; Holding Company. DAP is not an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940 and is not a "holding company,"
or a subsidiary or affiliate of a "holding company," or a "public utility,"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended or a "public utility" within the meaning of the Federal Power Act, as
amended.
(x) Regulation T, Etc. Neither DAP nor any agent acting on its behalf
has taken or will take any action which might cause this Master Agreement or
any other Operative Document to violate Regulation T, U or X or any other
regulation of the Board of Governors of the Federal Reserve System or to
violate the Exchange Act, and each case in effect now or as the same may
hereafter be in effect.
(y) Changes in Financial Condition; Adverse Developments. Except as
set forth on Schedule 4.1(c), from the date of the annual and most recent
quarterly financial statements described in Section 4.1(c) herein above, to the
date of this Master Agreement, there has been, and to the date of each Funding
there will be, no change in the properties, assets, liabilities, financial
condition, business operations, affairs or properties of DAP and its
Subsidiaries on a consolidated basis from that set forth or reflected in the
year-end and quarterly financial statements described in Section 4.1(c), other
than changes in the ordinary course of business, including acquisitions, none
of which either in any case or in the aggregate will have a Material Adverse
Effect.
(z) Hazardous Materials - Leased Properties.
(i) To the best knowledge of the related Lessee, except
as described in the related Environmental Audit, on the Closing Date
for each Leased Property, there are no Hazardous Materials present at,
upon, under or within such Leased Property or released or transported
to or from such Leased Property (except in compliance in all material
respects with all Applicable Law).
(ii) To the best knowledge of the related Lessee, on the
related Closing Date, no Governmental Actions have been taken or are
in process or have been threatened, which could reasonably be expected
to subject such Leased Property, any Lender or the Lessor to any
Material Claims or Liens with respect to such Leased Property under
any Environmental Law or would otherwise have a Material Adverse
Effect.
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(iii) The related Lessee has, or will obtain on or before the
date required by Applicable Law, all Environmental Permits necessary
to operate each Leased Property, if any, in accordance with
Environmental Laws and is complying with and has at all times complied
with all such Environmental Permits, except to the extent the failure
to obtain such Environmental Permits or to so comply would not have a
Material Adverse Effect.
(iv) Except as set forth in the related Environmental Audit
or in any notice subsequently furnished by the related Lessee to the
Agent and approved by the Agent in writing prior to the respective
times that the representations and warranties contained herein are
made or deemed made hereunder, no notice, notification, demand,
request for information, citations, summons, complaint or order has
been issued or filed to or with respect to the related Lessee, no
penalty has been assessed on the related Lessee and no investigation
or review is pending or, to its best knowledge, threatened by any
Governmental Authority or other Person in each case relating to any
Leased Property with respect to any alleged material violation or
liability of the related Lessee under any Environmental Law. To the
best knowledge of the related Lessee, no material notice,
notification, demand, request for information, citations, summons,
complaint or order has been issued or filed to or with respect to any
other Person, no material penalty has been assessed on any other
Person and no investigation or review is pending or threatened by any
Governmental Authority or other Person relating to any Leased Property
with respect to any alleged material violation or liability under any
Environmental Law by any other Person.
(v) To the best knowledge of the related Lessee, each Leased
Property and each portion thereof are presently in compliance in all
material respects with all Environmental Laws, and, to the best
knowledge of the related Lessee, there are no present or past facts,
circumstances, activities, events, conditions or occurrences regarding
such Leased Property (including without limitation the release or
presence of Hazardous Materials) that would reasonably be anticipated
to (A) form the basis of a material Claim against such Leased
Property, any Funding Party or the related Lessee, (B) cause such
Leased Property to be subject to any material restrictions on
ownership, occupancy, use or transferability under any Environmental
Law, (C) require the filing or recording of any notice or restriction
relating to the presence of Hazardous Materials in the real estate
records in the county or other appropriate municipality in which such
Leased Property is located, other than notices filed in the ordinary
cause of business, or (D) prevent or materially interfere with the
continued operation and maintenance of such Leased Property as
contemplated by the Operative Documents.
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For purposes of this Section 4.1(z), the term "material" with respect to any
event or circumstance means that such event or circumstance would reasonably be
anticipated to result in criminal or material liability on the part of any
Funding Party, or to have a material adverse effect on the value of any Leased
Property or to otherwise have a Material Adverse Effect.
(aa) Leased Property. To the best knowledge of the related
Lessee, the present condition of each Leased Property conforms in all
material respects with all conditions or requirements of all existing
material permits and approvals issued with respect to such Leased
Property, and the related Lessee's future intended use of such Leased
Property under the Lease does not violate any Applicable Law, the
violation of which is reasonably likely to have a Material Adverse
Effect. To the best knowledge of the related Lessee, no material
notices, complaints or orders of violation or non-compliance have been
issued or threatened or contemplated by any Governmental Authority
with respect to any Leased Property or any present or intended future
use thereof, where the effect of such violation or noncompliance is
reasonably likely to have a Material Adverse Effect. All material
agreements, easements and other rights, public or private, which are
necessary to permit the lawful use and operation of each Leased
Property as the related Lessee intends to use such Leased Property
under the Lease and which are necessary to permit the lawful intended
use and operation of all presently intended utilities, driveways,
roads and other means of egress and ingress to and from the same have
been, or to the related Lessee's best knowledge will be, obtained and
are or will be in full force and effect, and the related Lessee has no
knowledge of any pending material modification or cancellation of any
of the same.
(bb) Flood Hazard Areas. No portion of any Leased Property is
located in an area identified as a special flood hazard area by the
Federal Emergency Management Agency or other applicable agency, or if
any such Leased Property is located in an area identified as a special
flood hazard area by the Federal Emergency Management Agency or other
applicable agency, then flood insurance has been obtained for such
Leased Property in accordance with the Lease and in accordance with
the National Flood Insurance Act of 1968, as amended.
SECTION 4.2 Survival of Representations and Effect of Fundings.
(a) Survival of Representations and Warranties. All representations
and warranties made in Section 4.1 shall survive delivery of the Operative
Documents and every Funding, and shall remain in effect until all of the
Obligations are fully and irrevocably paid.
(b) Each Funding a Representation. Each Funding accepted by a Lessee
or the Construction Agent shall be deemed to constitute a representation and
warranty by DAP, DAP SUB and each other Lessee to the effect of Section 4.1.
SECTION 4.3 Representations of the Lessor. Effective as of the date of
execution hereof, as of each Closing Date and as of each Funding Date, in each
case, with respect to each of
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the Leased Properties, the Lessor represents and warrants to the Agent, the
Lenders and the Lessees as follows:
(a) Securities Act. The interest being acquired or to be acquired by
the Lessor in such Leased Property is being acquired for its own account,
without any view to the distribution thereof or any interest therein, provided
that the Lessor shall be entitled to assign, convey or transfer its interest in
accordance with Section 6.1.
(b) Due Organization, etc. The Lessor is a limited partnership duly
organized and validly existing in good standing under the laws of Texas and
each state in which a Leased Property is located and has full power, authority
and legal right to execute, deliver and perform its obligations under the
Lease, this Master Agreement and each other Operative Document to which it is
or will be a party.
(c) Due Authorization; Enforceability, etc. This Master Agreement and
each other Operative Document to which the Lessor is or will be a party have
been or will be duly authorized, executed and delivered by or on behalf of the
Lessor and are, or upon execution and delivery will be, legal, valid and
binding obligations of the Lessor enforceable against it in accordance with
their respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting creditors' rights
generally and by general equitable principles.
(d) No Conflict. The execution and delivery by the Lessor of the
Lease, this Master Agreement and each other Operative Document to which the
Lessor is or will be a party, are not or will not be, and the performance by
the Lessor of its obligations under each will not be, inconsistent with its
Partnership Agreement, do not and will not contravene any Applicable Law
applicable generally to parties providing financing and do not and will not
contravene any provision of, or constitute a default under, any Contractual
Obligation of Lessor, do not and will not require the consent or approval of,
the giving of notice to, the registration with or taking of any action in
respect of or by, any Governmental Authority applicable generally to parties
providing financing, except such as have been obtained, given or accomplished,
and the Lessor possesses all requisite regulatory authority to undertake and
perform its obligations under the Operative Documents.
(e) Litigation. There are no pending or, to the knowledge of the
Lessor, threatened actions or proceedings against the Lessor before any court,
arbitrator or administrative agency with respect to any Operative Document or
that would have a material adverse effect upon the ability of the Lessor to
perform its obligations under this Master Agreement or any other Operative
Documents to which it is or will be a party.
(f) Lessor Liens. No Lessor Liens (other than those expressly created
by the Operative Documents) exist on any Closing Date on the Leased Property,
or any portion thereof,
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and the execution, delivery and performance by the Lessor of this Master
Agreement or any other Operative Document to which it is or will be a party
will not subject any Leased Property, or any portion thereof, to any Lessor
Liens (other than those expressly created by the Operative Documents).
(g) Employee Benefit Plans. The Lessor is not and will not be making
its investment hereunder, and is not performing its obligations under the
Operative Documents, with the assets of an "employee benefit plan" (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA, or "plan" (as
defined in Section 4975(e)(1)) of the Code.
(h) General Partner. The sole general partner of the Lessor is
Atlantic Financial Managers, Inc., and the General Partner is duly organized
and validly existing in good standing under the laws of Texas and each state in
which a Leased Property is located.
(i) Financial Information. (A) The unaudited balance sheet of the
Lessor as of December 31, 1999 and the related statements of income, partners'
capital and cash flows for the year then ended, copies of which have been
delivered to the Agent, fairly present, in conformity with sound accounting
principles, consistent with the income tax basis reports provided to DAP for
the period ended on December 31, 1999, the financial condition of the Lessor as
of such date and the results of operations and cash flows for such period.
(B) Since December 31, 1999, there has been no event, act, condition
or occurrence having a material adverse effect upon the financial condition,
operations, performance or properties of the Lessor, or the ability of the
Lessor to perform in any material respect its obligations under the Operative
Documents.
(C) The Lessor has no recourse indebtedness, and the Lessor has not
entered into any other transactions, purchases, leases or other agreements,
other than immaterial transactions, purchases, leases and other agreements
entered into by the Lessor in the ordinary course of its business, in which the
Lessor has any liability to the other parties to such transactions, purchases,
leases or other agreements that is in excess of the Lessor's ownership or other
interest in the property subject to such transactions, purchases, leases or
other agreements other than liability for required fundings, breach of
contract, misrepresentation, gross negligence, willful misconduct, fraud,
failure to turn over funds and similar exceptions to limitations on recourse.
(j) No Offering. The Lessor has not offered the Notes to any Person in
any manner that would subject the issuance thereof to registration under the
Securities Act or any applicable state securities laws.
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(k) Investment Company. The Lessor is not an "investment company" or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 4.4 Representations of each Lender. Effective as of the date
of execution hereof, as of each Closing Date and as of each Funding Date, each
Lender represents and warrants to the Lessor and to the Lessees as follows:
(a) Securities Act. The interest being acquired or to be acquired by
such Lender in the Funded Amounts is being acquired for its own account,
without any view to the distribution thereof or any interest therein, provided
that such Lender shall be entitled to assign, convey or transfer its interest
in accordance with Section 6.2.
(b) Employee Benefit Plans. Such Lender is not and will not be making
its investment hereunder, and is not performing its obligations under the
Operative Documents, with the assets of an "employee benefit plan" (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA, or "plan" (as
defined in Section 4975(e)(1)) of the Code.
ARTICLE V.
COVENANTS OF DAP AND THE LESSOR
SECTION 5.1 Corporate Existence, Etc. DAP will preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its corporate
existence, its material rights, franchises, and licenses, and its material
patents and copyrights (for the scheduled duration thereof), trademarks, trade
names, and service marks, necessary or desirable in the normal conduct of its
business, and its qualification to do business as a foreign corporation in all
jurisdictions where it conducts business or other activities making such
qualification necessary, where the failure to do so would reasonably be
expected to have a Material Adverse Effect.
SECTION 5.2 Compliance with Laws, Etc. DAP will comply, and cause each
of its Subsidiaries to comply with all Requirements of Law (including, without
limitation, the Environmental Laws, subject to the exception set forth in
Section 5.7(f) where the penalties, claims, fines, and other liabilities
resulting from noncompliance with such Environmental Laws do not involve
amounts in excess of $3,000,000.00 in the aggregate), except where failure to
comply would not have a Material Adverse Effect.
SECTION 5.3 Payment of Taxes and Claims, Etc. DAP will pay, and cause
each of its Subsidiaries to pay, (i) all taxes, assessments and governmental
charges imposed upon it or upon its property, and (ii) all claims (including,
without limitation, claims for labor, materials, supplies or services) which
might, if unpaid, become a Lien upon its property, unless, in each case, the
validity or amount thereof is being contested in good faith by appropriate
proceedings and
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adequate reserves are maintained with respect thereto; provided, however, that
DAP may have outstanding and unpaid at any time not more than $500,000.00 in
the aggregate in state and local taxes.
SECTION 5.4 Keeping of Books. DAP will keep, and cause each of its
Subsidiaries to keep, proper books of record and account, containing in all
material respects complete and accurate entries of all their respective
financial and business transactions.
SECTION 5.5 Visitation, Inspection, Etc. DAP will permit, and cause
each of its Subsidiaries to permit, any representative of the Agent and any
Funding Party to visit and inspect any of its properties, to examine its books
and records and to make copies and take extracts therefrom, and to discuss its
affairs, finances and accounts with its officers, all at such reasonable times
and as often as the Agent may reasonably request after reasonable prior notice
to DAP; provided, however, that at any time following the occurrence and during
the continuance of a Default or an Event of Default, no prior notice to DAP
shall be required and further, provided, that in the event any documents and
records are subject to any contractual confidentiality requirements with any
Person, the right to make copies or extracts therefrom shall be subject to the
prior written consent of DAP, which consent will not be unreasonably withheld
or delayed.
SECTION 5.6 Insurance; Maintenance of Properties.
(a) DAP will maintain or cause to be maintained with financially sound
and reputable insurers, insurance with respect to its properties and business,
and the properties and business of its Subsidiaries, against loss or damage of
the kinds customarily insured against by reputable companies in the same or
similar businesses, such insurance to be of such types and in such amounts, as
is customary for such companies under similar circumstances; provided, however,
that in any event DAP shall use its reasonable best efforts to maintain, or
cause to be maintained, insurance in amounts and with coverages not materially
less favorable to any Consolidated Company as in effect on the date of this
Master Agreement, except where the costs of maintaining such insurance would,
in the judgment of both DAP and the Agent, be excessive.
(b) DAP will cause, and cause each of the Consolidated Companies to
cause, all properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, settlements and improvements thereof, all as in the
judgment of DAP may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent DAP from discontinuing the
operation or maintenance of any such properties if such discontinuance is, in
the judgment of DAP, desirable in the conduct of its business or the business
of any Consolidated Company.
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SECTION 5.7 Reporting Covenants
(a) Annual Financial Statements. DAP will furnish to the Agent and
each Funding Party, as soon as available and in any event within 120 days after
the end of each fiscal year of DAP, audited financial statements, consisting of
balance sheets of the Consolidated Companies as at the end of such year,
presented on a consolidated basis, and the related statements of income,
stockholders' equity, and cash flows of the Consolidated Companies for such
fiscal year, presented on a consolidated basis, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail and accompanied by a report thereon of Ernst & Young, LLP, or other
independent public accountants of comparable recognized national or regional
standing, which such report shall be unqualified as to going concern and scope
of audit and shall state that such financial statements present fairly in all
material respects the financial condition as at the end of such fiscal year on
a consolidated basis, and the results of operations and statements of cash
flows of the Consolidated Companies for such fiscal year in accordance with
GAAP and that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with GAAP;
(b) Quarterly Financial Statements. DAP will furnish to the Agent and
each Funding Party, as soon as available and in any event within 60 days after
the end of each fiscal quarter of DAP (other than the fourth fiscal quarter),
balance sheets of the Consolidated Companies as at the end of such quarter
presented on a consolidated basis and the related statements of income, and
cash flows of the Consolidated Companies for such fiscal quarter and for the
portion of DAP's fiscal year ended at the end of such quarter, presented on a
consolidated basis setting forth in each case in comparative form the figures
for the corresponding quarter and the corresponding portion of DAP's previous
fiscal year, all in reasonable detail and certified by the Treasurer or Chief
Financial Officer or other authorized financial officer of DAP acceptable to
the Agent and all the Funding Parties that such financial statements fairly
present in all material respects the financial condition of the Consolidated
Companies as at the end of such fiscal quarter on a consolidated basis, and the
results of operations and statements of cash flows of the Consolidated
Companies for such fiscal quarter and such portion of DAP's fiscal year, in
accordance with GAAP consistently applied (subject to normal year end audit
adjustments and the absence of certain footnotes) and as reflected in the notes
thereto;
(c) No Default/Compliance Certificate. DAP will furnish to the Agent
and each Funding Party, together with the financial statements required
pursuant to subsections (a) and (b) above, a certificate of the Treasurer,
Chief Financial Officer or other authorized financial officer of DAP acceptable
to the Agent and the Required Funding Parties (i) to the effect that, based
upon a review of the activities of the Consolidated Companies and such
financial statements during the period covered thereby, there exists no Event
of Default and no Default, or if there exists an Event of Default or a Default,
specifying the nature thereof and the proposed response thereto, and (ii)
demonstrating in reasonable detail compliance as at the end of such fiscal year
or such
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fiscal quarter with the covenants contained in Section 5.8 and Sections 5.13
through 5.15;
(d) Notice of Default. DAP will furnish to the Agent and each Funding
Party, promptly after any member of Senior Management of DAP has notice or
knowledge of the occurrence of an Event of Default or a Default, a certificate
of the chief financial officer or principal accounting officer of DAP
specifying the nature thereof and the proposed response thereto;
(e) Litigation. DAP will furnish to the Agent and each Funding Party,
promptly after (i) the occurrence thereof, notice of the institution of or any
adverse development in any action, suit or proceeding or any governmental
investigation or any arbitration, before any court or arbitrator or any
governmental or administrative body, agency or official, against any
Consolidated Company, or any material property thereof which could reasonably
be expected to have a Material Adverse Effect, or (ii) actual knowledge
thereof, notice of the threat of any such action, suit, proceeding,
investigation or arbitration, together with any information and documentation
relating thereto, as may be reasonably requested;
(f) Environmental Notices. DAP will furnish to the Agent and each
Funding Party, promptly after receipt thereof, notice of any actual or alleged
violation, or notice of any action, claim or request for information, either
judicial or administrative, from any governmental authority relating to any
actual or alleged claim, notice of potential responsibility under or violation
of any Environmental Law, or any actual or alleged spill, leak, disposal or
other release of any waste, petroleum product, or hazardous waste or Hazardous
Substance by any Consolidated Company which violation, action, claim, request,
spill, leak, disposal, or release could reasonably be expected to result in
penalties, fines, claims or other liabilities to any Consolidated Company in
amounts in excess of $500,000.00 individually or $3,000,000.00 when aggregated
with other then pending such matters;
(g) ERISA. With reasonable promptness DAP will give notice to the
Agent and each Funding Party of (i) the establishment of any new Plan (which
notice shall include a copy of such Plan) or the acquisition or merger of any
Plan, (ii) the commencement of contributions to any Plan to which DAP or any of
its ERISA Affiliates was not previously contributing, (iii) any material
increase in the benefits of any existing Plan, (iv) each funding waiver request
filed with respect to any Plan and all material communications received or sent
by DAP or any ERISA Affiliate with respect to such request and (v) the failure
of DAP or any ERISA Affiliate to make a required installment or payment under
Act Section 302 of ERISA or Section 412 of the Code by the due date.
Promptly after becoming aware of the occurrence or forthcoming
occurrence of any (i) Termination Event or (ii) nonexempt "prohibited
transaction," as such term is defined in Act Section 406 of ERISA or Section
4975 of the Code, in connection with any Plan or any trust
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created thereunder, DAP will deliver to the Agent and each Funding Party a
notice specifying the nature thereof, what action DAP or any ERISA Affiliate
has taken, is taking or proposes to take with respect thereto and, when known,
any action taken or threatened by the Internal Revenue Service (the "IRS"), the
Department of Labor or the PBGC with respect thereto; or (iii) any material
operational or compliance defect for which corrective action may be undertaken
to correct such defect pursuant to any IRS compliance resolution programs,
including copies of all documentation being submitted to and all correspondence
to or from the IRS pertaining to such matters or developed to comply with such
program.
With reasonable promptness, DAP will deliver to the Agent and each
Funding Party copies of (i) any unfavorable determination letter from the IRS
regarding the qualification of a Plan under Section 401 (a) of the IRS Code, or
the rejection of any offer under an IRS compliance resolution program or
imposition of any liability upon the Borrower or any ERISA Affiliate resulting
from an IRS or Department of Labor examination, (ii) all notices received by
DAP or any ERISA Affiliate of the PBGC's intent to terminate any Plan or to
have a trustee appointed to and administer any Plan, (iii) each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed by DAP or
any ERISA Affiliate with the IRS with respect to each Plan and (iv) all notices
received by DAP or any ERISA Affiliate from a Multiemployer Plan sponsor
concerning the imposition of withdrawal liability pursuant to Section 4202 of
ERISA. DAP will notify the Agent and each Funding Party in writing promptly
after DAP or any ERISA Affiliate obtains knowledge of or has reason to know
that DAP or any ERISA Affiliate has filed or intends to file a notice of intent
to terminate any Plan under a distress termination within the meaning of
Section 4041(c) of ERISA.
With reasonable promptness, deliver to the Agent and each Funding
Party copies of any demand for material payment or assertion of material
liability by the IRS, Department of Labor or PBGC or any of such agency's
successors upon DAP or any ERISA Affiliate.
(h) Liens. DAP will deliver to the Agent and each Funding Party
promptly upon any Consolidated Company becoming aware thereof, notice of the
filing of any federal statutory Lien, tax or other state or local government
Lien or any other Lien affecting their respective properties, other than those
Liens expressly permitted by Section 5.13;
(i) Public Filings, Etc. DAP will deliver to the Agent and each
Funding Party promptly upon the filing thereof or otherwise becoming available,
copies of all financial statements, annual, quarterly and special reports,
proxy statements and notices sent or made available generally by DAP to its
public security holders, of all regular and periodic reports filed by any of
them with any securities exchange, and of all press releases and other
statements made available generally to the public containing material
developments in the business or financial condition of DAP and the other
Consolidated Companies;
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(j) Accountants' Reports. DAP will deliver to the Agent and each
Funding Party promptly upon receipt thereof, copies of all financial statements
of, and all reports submitted by, independent public accountants to DAP in
connection with each annual, interim, or special audit of DAP's consolidated
financial statements;
(k) Trademarks; Labor Disputes, Etc. DAP will deliver to the Agent and
each Funding Party promptly upon the existence or occurrence thereof, notice of
the existence or occurrence of (i) failure of any Consolidated Company to hold
in full force and effect those material trademarks, service marks, patents,
trade names, copyrights, licenses, franchises and similar rights necessary in
the normal conduct of its business, and (ii) any strike, labor dispute, slow
down or work stoppage as described in Section 4.1(u);
(l) New Subsidiaries. DAP will deliver to the Agent and each Funding
Party within 30 days after the formation or acquisition of any Subsidiary, or
any other event resulting in the creation of a new Subsidiary, notice of the
formation or acquisition of such Subsidiary or such occurrence, including a
description of the assets of such entity, the activities in which it will be
engaged, and such other information as the Agent may request;
(m) Intercompany Asset Transfers. DAP will deliver to the Agent and
each Funding Party promptly upon the occurrence thereof, notice of the transfer
of any assets from DAP to any other Consolidated Company that is not DAP or a
Wholly-Owned Subsidiary of Borrower (in any transaction or series of related
transactions), excluding sales or other transfers of assets in the ordinary
course of business, where the aggregate Asset Value of such assets is less than
$3,000,000.00 during any fiscal year; and
(n) Other Information. DAP will deliver to the Agent and each Funding
Party with reasonable promptness, such other information about the Consolidated
Companies as the Agent (on its behalf or on behalf of any Funding Party) may
reasonably request from time to time.
SECTION 5.8 Financial Covenants.
(a) Interest Coverage Ratio. DAP will maintain as at the last day of
each fiscal quarter, a ratio of (i) Consolidated EBITR to (ii)(y) Consolidated
Interest Expense plus (z) Consolidated Rental Expense of at least (A) 2.5:1.0
for the period from the date hereof to May 30, 2000; (B) 2.75:1.0 for the
period from May 31, 2000 to May 29, 2001 and (C) 3.0:1.0 from and after May 30,
2001, computed on a rolling four-quarter basis, based on information contained
in DAP's current financial statement and its financial statements for the
preceding three quarters.
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(b) Consolidated Funded Debt to Total Capitalization Ratio. DAP will
maintain a maximum ratio of Consolidated Funded Debt to Total Capitalization,
of less than or equal to 0.60:1.0, tested quarterly at the end of each fiscal
quarter.
(c) Maximum Consolidated Funded Debt to Consolidated EBITDAR. DAP will
maintain a maximum ratio of Consolidated Funded Debt to Consolidated EBITDAR of
less than or equal to 3.50:1.0, tested quarterly at the end of each fiscal
quarter, computed on a rolling four quarter basis, based on information
contained in DAP's current financial statements and its financial statements
for the preceding three fiscal quarters.
SECTION 5.9 Notices Under Certain Other Consolidated Funded Debt.
Immediately upon its receipt thereof, DAP shall furnish the Agent a copy of any
notice received by it or any other Consolidated Company from the holder(s) of
Consolidated Funded Debt (or from any trustee, agent, attorney, or other party
acting on behalf of such holder(s)) in an amount which, in the aggregate,
exceeds $500,000.00, where such notice states or claims (i) the existence or
occurrence of any default or event of default with respect to such Consolidated
Funded Debt under the terms of any indenture, loan or credit agreement,
debenture, note, or other document evidencing or governing such Consolidated
Funded Debt, or (ii) the existence or occurrence of any event or condition
which requires or permits holder(s) of such Consolidated Funded Debt to
exercise rights under any Change in Control Provision. DAP agrees to request
the holder(s) of any Consolidated Funded Debt (or any trustee or agent acting
on their behalf) incurred pursuant to documents executed or amended and
restated after the Initial Closing Date, to furnish copies of all such notices
directly to the Agent simultaneously with the furnishing thereof to DAP, and
that such requirement may not be altered or rescinded without the prior written
consent of the Agent.
SECTION 5.10 Fiscal Year. DAP shall not change its fiscal year now
employed for accounting and reporting purposes without the prior written
consent of the Agent and the Required Lenders, which consent shall not be
unreasonably withheld.
SECTION 5.11 Subordination of Intercompany Loans. All loans owed to
any Consolidated Company, or any Affiliate of any thereof, shall, at all times,
be subordinate to the Obligations and DAP shall cause its Subsidiaries and/or
Affiliates from time to time to execute and deliver to the Agent and the
Funding Parties subordination agreements in form and content reasonably
satisfactory to the Agent and the Required Lenders. Notwithstanding the
foregoing, however, so long as no Default or Event of Default has occurred and
is continuing, payments of principal and interest may be paid in respect of any
such Intercompany Loans.
SECTION 5.12 Subsidiaries/Guarantors. DAP shall give the Agent and the
Funding Parties prompt written notification of (a) the formation or acquisition
(provided that nothing in this Section 5.12 shall be deemed to authorize or
prohibit the acquisition of any entity and provided further that this
requirement shall not be deemed to constitute a waiver of DAP's
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obligation at all times to comply with the requirements of Section 5.14 of this
Agreement) of any Subsidiary and the purchase price therefor, (b) the transfer
of assets to any Consolidated Company if notice thereof is required to be given
pursuant to Section 5.7(m) and as a result thereof the recipient of such assets
becomes a Subsidiary, and (c) the occurrence of any other event creating a new
Subsidiary. Within thirty (30) days of the acquisition or formation of each
such new Subsidiary or the occurrence of such other event which creates each
such new Subsidiary, DAP shall (i) deliver to the Agent copies of the Articles
of Incorporation and Bylaws of each such new Subsidiary and (ii) cause any such
new Subsidiary that is a Wholly-Owned Subsidiary to execute and deliver to the
Agent a Subsidiary Guaranty and a Contribution Agreement each in form and
content substantially similar to Exhibits J and K hereto, and such other
documentation as the Agent and the Required Lenders may reasonably request,
including, without limitation, a joinder to this Master Agreement and an
opinion of counsel to each such Wholly-Owned Subsidiary, addressed to the Agent
and each Funding Party, and containing opinions as to each such Subsidiary,
assumptions and qualifications reasonably acceptable to the Agent.
SECTION 5.13 Liens. DAP will not, and will not permit any Subsidiary
to, create, incur, assume or suffer to exist any Lien on any of its property
now owned or hereafter acquired to secure any Indebtedness other than:
(a) Liens existing on the date hereof disclosed on Schedule 5.13;
(b) any Lien on any property securing Indebtedness incurred or assumed
for the purpose of financing all or any part of the acquisition cost of such
property and any refinancing thereof, provided that such Lien does not extend
to any other property, and provided further that the aggregate principal amount
of Indebtedness secured by all such Liens at any time does not exceed ten
percent (10%) of DAP's net worth;
(c) Liens for taxes not yet due, and Liens for taxes or Liens imposed
by ERISA which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained;
(d) Statutory Liens of landlords, existing contractual Liens of
landlords, future contractual Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law created in
the ordinary course of business or which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves are being
maintained;
(e) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other
types of social security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds,
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bids, leases, government contracts, performance and return-of-money bonds and
other similar obligations (exclusive of obligations for the payment of borrowed
money);
(f) Liens resulting from zoning, easements, and restrictions on the
use of such real estate, or rights reserved or vested in governmental
authority, which do not materially impair the use of such real estate;
(g) Liens arising under ERISA;
(h) Liens which secure any Indebtedness owing by one Consolidated
Company to another Consolidated Company;
(i) Liens arising under any of the Operative Documents; and
(j) Other Liens included in the $3,000,000.00 exception provided for
in Section 4.1(g).
SECTION 5.14 Mergers, Acquisitions, Sales, Etc. DAP will not, and will
not permit any Subsidiary to, merge or consolidate with or, except as permitted
pursuant to Section 5.15, acquire all or any portion of the equity of any other
Person, other than DAP or another Subsidiary, or sell, lease, or otherwise
dispose of its accounts, property or other assets (including capital stock of
Subsidiaries); provided, however, that the foregoing restrictions on asset
sales shall not be applicable to (i) sales of equipment or other personal
property being replaced by other equipment or other personal property purchased
as a capital expenditure item having comparable values, (ii) sale, lease or
transfer of assets of DAP or any Subsidiary to DAP or to any other Subsidiary,
(iii) sales of inventory or real property in the ordinary course of business,
(iv) dispositions of obsolete, damaged or unusable assets and (v) other asset
sales (including the stock of Subsidiaries) where, on the date of execution of
a binding obligation to make such asset sale (provided that if the asset sale
is not consummated within six (6) months of such execution, then on the date of
consummation of such asset sale rather than on the date of execution of such
binding obligation), the Asset Value of such other asset sales occurring after
the Initial Closing Date, taking into account the Asset Value of the proposed
asset sale, would not, during any twelve (12) month period, exceed fifteen
percent (15%) of DAP's assets; and, provided further, that the foregoing
restrictions on mergers shall not apply to mergers involving DAP and another
entity, provided DAP is the surviving entity, and mergers between a Subsidiary
of DAP and DAP or between Subsidiaries of DAP and mergers of a Subsidiary of
DAP and another entity so long as the resulting entity is a Wholly-Owned
Subsidiary of DAP; provided, however, that no transaction pursuant to clause
(i), (ii), (iv), (v) or the second proviso above shall be permitted if any
Default or Event of Default otherwise exists at the time of such transaction or
would otherwise exist as a result of such transaction.
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SECTION 5.15 Investments, Loans, Etc. DAP will not, and will not
permit any of its Subsidiaries to, make or permit to remain outstanding any
loan or advance to, or guarantee, endorse, or otherwise be or become
contingently liable, directly or indirectly in connection with obligations,
stock or dividends of any Person other than DAP or a Wholly Owned Subsidiary of
DAP, or hold any Investments in any Person, or otherwise acquire or hold any
Subsidiaries, other than:
(a) investments received in settlement of debts created in the
ordinary course of business;
(b) the endorsement of negotiable instruments in the ordinary course
of business;
(c) investments in stock or assets, or any combination thereof, of
Subsidiaries existing on the date hereof or of any new Subsidiaries provided
that (i) such investments in Subsidiaries that are not Wholly-Owned
Subsidiaries and (ii) such investments which are used or to be used for the
acquisition of all or any portion of the equity in or assets of any other
Person do not exceed $50,000,000.00 in the aggregate during any twelve (12)
month period;
(d) investments in minority interests in any other Person provided
such minority interests do not exceed $500,000.00 in the aggregate;
(e) direct obligations of the United States or any agency thereof, or
obligations guaranteed by the United States or any agency thereof, in each case
supported by the full faith and credit of the United States and maturing within
one year from the date of creation thereof;
(f) commercial paper, bankers acceptances or corporate obligations
maturing within one year from the date of creation thereof having a rating at
the time as of which any determination is made of P-1 (or higher) according to
Moody's or as A-1 (or higher) according to Standard & Poor's corporation or the
equivalent thereof if by another nationally recognized credit rating agency;
(g) time deposits or repurchase agreements maturing within one year
from the date of creation thereof, including certificates of deposit or
repurchase agreements issued by any Funding Party and any office located in the
United States of any bank or trust company which is organized under the laws of
the United States or any state thereof and has total assets aggregating at
least $500,000,000.00, including without limitation, any such deposits in
Eurodollars issued by a foreign branch of any such bank or trust company;
(h) Investments made by Plans;
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(i) Intercompany Loans; and
(j) advances to employees not to exceed $1,000,000.00 in the aggregate
at any one time.
SECTION 5.16 Transactions with Affiliates.
(a) DAP will not, and will not permit any Subsidiary to, enter into
any material transaction or series of related transactions which in the
aggregate would be material, whether or not in the ordinary course of business,
with any Affiliate of any Consolidated Company (but excluding any Affiliate
which is also a Consolidated Company), other than on terms and conditions
substantially as favorable to such Consolidated Company as would be obtained by
such Consolidated Company at the time in a comparable arm's length transaction
with a Person other than an Affiliate.
(b) DAP will not, and will not permit any Subsidiary to, convey or
transfer to any other Consolidated Company any assets (excluding conveyances or
transfers in the ordinary course of business) if at the time of such conveyance
or transfer any Default or Event of Default exists or would exist as a result
of such conveyance or transfer.
SECTION 5.17 Changes in Business. DAP will not, and will not permit
any Subsidiary to, enter into any business which is substantially different
from that presently conducted or presently contemplated by the Consolidated
Companies taken as a whole.
SECTION 5.18 ERISA. DAP will not, and will not permit any Subsidiary
to, take any action which would fail to satisfy any minimum funding standard
for any Plan maintained by DAP or any ERISA Affiliate or fail to make any
payments to a Multiemployer Plan required by reason of DAP's or any ERISA
Affiliate's complete or partial withdrawal (as described in Act Section 4203 or
4205 of ERISA) from such Plan.
SECTION 5.19 Limitation on Payment Restrictions Affecting Consolidated
Companies. DAP will not, and will not permit any Subsidiary to, create or
otherwise cause or suffer to exist or become effective, any consensual
encumbrance or restriction on the ability of any Consolidated Company to (i)
pay dividends or make any other distributions on such Consolidated Company's
stock, or (ii) pay any indebtedness owed to DAP or any other Consolidated
Company, or (iii) transfer any of its property or assets to DAP or any other
Consolidated Company, except any consensual encumbrance or restriction existing
under the Operative Documents or any equivalent consensual encumbrance or
restriction under any indenture, loan or credit agreement, debenture, note or
other document evidencing or governing any Consolidated Funded Debt.
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SECTION 5.20 Subsidiary Indebtedness. Without the prior written
consent of the Agent and the Required Lenders, the Subsidiaries of DAP shall
not create, incur, assume or suffer to exist any Indebtedness in excess of
$3,000,000.00 in the aggregate; provided, however, the foregoing restriction
shall not apply to Subsidiaries that have guaranteed the Obligations by
executing and delivering to the Agent, in favor of the Funding Parties, the
Subsidiary Guaranty.
SECTION 5.21 Use of Proceeds. DAP SUB will not, and will not permit
any other Obligor to, use any proceeds of any Funding for any purpose other
than the acquisition and Construction of Leased Properties or use any such
proceeds in any manner which violates or results in a violation of law.
SECTION 5.22 Further Assurances. Upon the written request of the
Lessor or the Agent, each Lessee, at its own cost and expense, will cause all
financing statements (including precautionary financing statements), fixture
filings and other similar documents, to be recorded or filed at such places and
times in such manner, as may be necessary to preserve, protect and perfect the
interest of the Lessor, the Agent and the Funding Parties in the Leased
Properties as contemplated by the Operative Documents.
SECTION 5.23 Additional Required Appraisals. If, as a result of any
change in Applicable Law after the date hereof, an appraisal of all or any of
the Leased Properties is required during the Lease Term under Applicable Law
with respect to any Funding Party's interest therein, such Funding Party's
Funded Amount with respect thereto or the Operative Documents, then the related
Lessee shall pay the reasonable cost of such appraisal.
SECTION 5.24 Lessor's Covenants. The Lessor covenants and agrees that,
unless the Agent, DAP SUB and the Lenders shall have otherwise consented in
writing:
(a) the proceeds of the Loans received from the Lenders will be used
by the Lessor solely to acquire the related Leased Property and to pay the
Construction Agent, as agent for the Lessor, or the related Lessee for certain
closing, development and transaction costs associated therewith and, if
applicable, for the costs of Construction. No portion of the proceeds of the
Loans will be used by the Lessor (i) in connection with, whether directly or
indirectly, any tender offer for, or other acquisition of, stock of any
corporation with a view towards obtaining control of such other corporation or
(ii) directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any Margin Stock;
(b) it shall not engage in any business or activity, or invest in any
Person, except for activities similar to its activities conducted on the date
hereof, the Transaction and lease transactions similar to the Transaction;
(c) it will maintain tangible net worth in an amount no less than the
sum of (i) $100,000 plus (ii) 3% of its total assets (calculated assuming no
reduction in the value of any
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leased property from its original cost to the Lessor) and will at all times be
solvent (as defined in the Bankruptcy Code);
(d) it will deliver to the Agent and DAP SUB, as soon as available and
in any event within 90 days after the end of each fiscal year, a balance sheet
of the Lessor as of the end of such fiscal year and the related statements of
income, partners' capital and cash flows for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year,
prepared in accordance with sound accounting principles consistent with the
income tax basis reports provided to DAP SUB for the period ended on December
31, 1999, together with copies of its tax returns, all certified by an officer
of the General Partner (and if the Lessor ever prepares audited financial
statements, it shall deliver copies thereof to the Agent and DAP SUB);
(e) it will permit the Agent and its representatives to examine, and
make copies from, the Lessor's books and records, and to visit the offices and
properties of the Lessor for the purpose of examining such materials, and to
discuss the Lessor's performance hereunder with any of its, or its general
partner's, officers and employees, in each case during normal business hours
and upon reasonable notice;
(f) it shall not consent to or permit the creation of any easement or
other restriction against any Leased Property other than as permitted pursuant
to Article VI of the Lease;
(g) it shall not incur or permit to exist, and will promptly discharge
each Lessor Lien and shall indemnify the Lenders and the Lessees for any loss,
cost, expense or diminution in value of any Leased Property resulting from, or
incurred as a result of, such Lessor Liens;
(h) it shall not enter into any other transactions, leases, purchases
or other agreements, other than immaterial transactions, purchases, leases and
other agreements entered into by the Lessor in the ordinary course of its
business, in which the other parties to said transactions, leases, purchases or
other agreements will have any recourse against Lessor other than recourse to
Lessor's ownership or other interest in the property subject to such
transactions, purchases, leases or other agreements, other than liability for
required fundings, breach of contract, misrepresentation, gross negligence,
willful misconduct, fraud, failure to turn over funds and similar exceptions to
limitations on recourse;
(i) it shall not guaranty the liabilities of any other Person;
(j) it shall pay its debts as such debts become due unless such debts
are the subject of a bona fide dispute; and
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(k) it shall promptly notify DAP SUB and the Agent of any claim
against the Lessor that would reasonably be expected to result in a material
liability of the Lessor for which it is not fully indemnified by a Person
reasonably capable of fully performing its obligations under such indemnity.
SECTION 5.25 Lenders' Covenants. Each Lender severally agrees that it
will not make any future advances pursuant hereto (other than those in the
nature of remedial advances) without DAP's or a Lessee's consent (it being
understood that (i) the delivery of a Funding Request constitutes such consent,
(ii) DAP has consented to the capitalization of interest and yield pursuant to
Section 2.3(c) and (iii) nothing set forth in Section 5.25 shall abrogate the
Construction Agent's duties under the Construction Agency Agreement). In the
event that a Loan Event of Default occurs and is continuing at a time when no
Event of Default has occurred and is continuing, the Agent shall promptly give
DAP notice thereof, and the Lenders shall not exercise remedies pursuant to the
Loan Agreement if such Loan Event of Default is capable of being cured, unless
thirty (30) days or more has elapsed since the date of the notice from the
Agent to DAP thereof and DAP has not cured such Loan Event of Default, or
caused such Loan Event of Default to be cured.
ARTICLE VI.
TRANSFERS BY LESSOR AND LENDERS
SECTION 6.1 Lessor Transfers. The Lessor shall not assign, convey or
otherwise transfer all or any portion of its right, title or interest in, to or
under any Leased Property or any of the Operative Documents without the prior
written consent of the Lenders and, unless an Event of Default has occurred and
is continuing and the Lessor or the Agent is exercising one or more remedies
under the Lease, DAP SUB. Any proposed transferee of the Lessor shall make the
representation set forth in Section 4.3 to the other parties hereto.
SECTION 6.2 Lender Transfers.
(a) Any Lender may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an Affiliate of such
Lender.
(b) Each Lender may assign all or a portion of its interests, rights
and obliga tions under this Master Agreement and the Loan Agreement (including
all or a portion of its Commitment and the Loans at the time owing to it) to
any Person; provided, however, that (i) the Agent and, except during the
continuance of a Potential Event of Default or Event of Default, DAP SUB must
give its prior written consent to such assignment (which consent shall not be
unreasonably withheld or delayed) unless such assignment is to another Lender
or Affiliate of the assigning Lender, (ii) unless such Lender is assigning all
of its Commitment, after giving effect to such assignment, the Commitment of
both the assignor and the assignee is at least $1,000,000
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and (iii) the parties to each such assignment shall execute and deliver to the
Agent an Assignment and Acceptance, and, unless such assignment is to an
Affiliate of such Lender, a processing and recordation fee of $2,500. Any such
assignment of the Loans shall include both the A Loans and the B Loans of such
assigning Lender, on a pro rata basis. No Lessee shall be responsible for such
processing and recordation fee or any costs or expenses incurred by any Lender
or the Agent in connection with such assignment. From and after the effective
date specified in each Assignment and Acceptance, which effective date shall be
at least five (5) Business Days after the execution thereof, 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 Master Agreement and the Loan Agreement.
(c) Each Lender may, without the consent of DAP SUB or any Lessee,
sell participations to one or more banks or other entities in all or a portion
of its rights and obligations under this Master Agreement and the Loan
Agreement (including all or a portion of its Commitments in the Loans owing to
it), provided, however, that (i) no Lender may sell a participation in its
Commitment (after giving effect to any permitted assignment hereunder) in an
amount in excess of fifty percent (50%) of such Commitment (provided that (1)
sales of participations to an Affiliate of Lender shall not be included in such
calculation and (2) no such maximum amount shall be applicable to any
participation sold at any time there exists an Event of Default), (ii) such
Lender's obligations under this Master Agreement and the Loan Agreement shall
remain unchanged, (iii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iv) the
participating bank or other entity shall not be entitled to any greater benefit
than its selling Lender under the cost protection provisions contained in
Section 7.5 of this Master Agreement, and (v) DAP SUB, each Lessee, the Agent
and the other Lenders shall continue to deal solely and directly with each
Lender in connection with such Lender's rights and obligations under this
Master Agreement and the other Operative Documents, and such Lender shall
retain the sole right to enforce the obligations of Lessor relating to the
Loans and to approve any amendment, modification or waiver of any provisions of
this Master Agreement and the Loan Agreement (except that such Lender may
permit the participant to approve any amendment, modification or waiver which
would reduce the principal of or the interest rate on its Loan, extend the term
of such Lender's Commitment, reduce the amount of any fees to which such
participant is entitled or extend the final scheduled payment date of any Loan,
it being understood that in all events, the other parties hereto may
conclusively rely on such Lender's approval of any such amendment, modification
or waiver and shall have no obligation to ascertain whether such participant
has approved such amendment, modification or waiver). Any Lender selling a
participation hereunder shall provide prompt written notice to the Agent of the
name of such participant.
(d) Any Lender or participant may, in connection with the assignment
or par ticipation or proposed assignment or participation, pursuant to this
Section, disclose to the assignee or participant or proposed assignee or
participant any information relating to DAP or its Subsidiaries furnished to
such Lender by or on behalf of DAP. With respect to any disclosure of
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confidential, non-public, proprietary information, such proposed assignee or
participant shall agree to use the information only for the purpose of making
any necessary credit judgments with respect to this facility and not to use the
information in any manner prohibited by any law, including without limitation,
the securities laws of the United States. The proposed participant or assignee
shall agree not to disclose any of such information except as permitted by this
Master Agreement. The proposed participant or assignee shall further agree to
return all documents or other written material and copies thereof received from
any Lender, the Agent or any Lessee relating to such confidential information
unless otherwise properly disposed of by such entity.
(e) Any Lender may at any time assign all or any portion of its rights
under this Master Agreement and the Notes to a Federal Reserve Bank without
complying with the requirements of paragraph (b) above; provided that no such
assignment shall release such Lender from any of its obligations hereunder.
(f) The Lenders hereby acknowledge and agree that the Lessees shall
have the right to the quiet enjoyment of the Leased Properties pursuant to the
Lease, whether or not a Loan Event of Default that is not an Event of Default
has occurred and is continuing, so long as no Event of Default has occurred and
is continuing.
ARTICLE VII.
INDEMNIFICATION
SECTION 7.1 General Indemnification. Each of DAP and each Lessee,
jointly and severally, agrees, whether or not any of the transactions
contemplated hereby shall be consummated, to assume liability for, and to
indemnify, protect, defend, save and hold harmless each Indemnitee, on an
After-Tax Basis, from and against, any and all Claims that may be imposed on,
incurred by or asserted, or threatened to be asserted, against such Indemnitee,
whether or not such Indemnitee shall also be indemnified as to any such Claim
by any other Person (provided that no Indemnitee shall have the right to double
recovery with respect to any Claim) and whether or not such Claim arises or
accrues prior to any Closing Date or after the Lease Termination Date, or
results from such Indemnitee's negligence, in any way relating to or arising
out of:
(a) any of the Operative Documents or any of the transactions
contemplated thereby, and any amendment, modification or waiver in respect
thereof; or
(b) the purchase, design, construction, preparation, installation,
inspection, delivery, non-delivery, acceptance, rejection, ownership,
management, possession, operation, rental, lease, sublease, repossession,
maintenance, repair, alteration, modification, addition, substitution, storage,
transfer of title, redelivery, use, financing, refinancing, disposition,
operation, condition, sale (including, without limitation, any sale pursuant to
the Lease), return or
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other disposition of all or any part of any interest in any Leased Property or
the imposition of any Lien, other than a Lessor Lien (or incurring of any
liability to refund or pay over any amount as a result of any Lien, other than
a Lessor Lien) thereon, including, without limitation: (i) Claims or penalties
arising from any violation or alleged violation of law or in tort (strict
liability or otherwise), (ii) latent or other defects, whether or not
discoverable, (iii) any Claim based upon a violation or alleged violation of
the terms of any restriction, easement, condition or covenant or other matter
affecting title to any Leased Property or any part thereof, (iv) the making of
any Alterations in violation of any standards imposed by any insurance policies
required to be maintained by any Lessee pursuant to the Lease which are in
effect at any time with respect to any Leased Property or any part thereof, (v)
any Claim for patent, trademark or copyright infringement, (vi) Claims arising
from any public improvements with respect to any Leased Property resulting in
any charge or special assessments being levied against any Leased Property or
any Claim for utility "tap-in" fees, and (vii) Claims for personal injury or
real or personal property damage occurring, or allegedly occurring, on any
Land, Building or Leased Property;
(c) the breach or alleged breach (other than a breach wrongfully
alleged by such Indemnitee) by DAP or any Lessee of any representation or
warranty made by it or deemed made by it in any Operative Document or any
certificate required to be delivered by any Operative Document (without giving
effect to any exception in any representation based on the absence of a
Material Adverse Effect);
(d) the retaining or employment of any broker, finder or financial
advisor by DAP or any Lessee to act on its behalf in connection with this
Master Agreement, or the incurring of any fees or commissions to which the
Lessor, the Agent or any Lender might be subjected by virtue of their entering
into the transactions contemplated by this Master Agreement (other than fees or
commissions due to any broker, finder or financial advisor retained by the
Lessor, the Agent or any Lender);
(e) the existence of any Lien (other than a Lessor Lien) on or with
respect to any Leased Property, the Construction, any Basic Rent or
Supplemental Rent, title thereto, or any interest therein, including any Liens
which arise out of the possession, use, occupancy, construction, repair or
rebuilding of any Leased Property or by reason of labor or materials furnished
or claimed to have been furnished to the Construction Agent, any Lessee, or any
of its contractors or agents or by reason of the financing of any personalty or
equipment purchased or leased by any Lessee or Alterations constructed by any
Lessee, except, in all cases, the Liens described in item (a) of the definition
of Permitted Liens;
(f) the transactions contemplated hereby or by any other Operative
Document, in respect of the application of Parts 4 and 5 of Subtitle B of Title
I of ERISA and any prohibited transaction described in Section 4975(c) of the
Code;
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(g) any act or omission by DAP SUB or any Lessee under any Purchase
Agreement or any other Operative Document, or any breach by DAP SUB or any
Lessee of any requirement, condition, restriction or limitation in any Deed,
Purchase Agreement, IDB Documentation or Ground Lease; or
(h) any IDB Documentation;
provided, however, neither DAP nor any Lessee shall be required to indemnify
any Indemnitee under this Section 7.1 for any Claim to the extent that such
Claim results from (i) the willful misconduct or gross negligence of any
Indemnitee, (ii) any Claim resulting from Lessor Liens or (iii) actions or
events occurring after the Lease has terminated and possession of the Leased
Properties has been turned over to a Person other than the Agent, any Funding
Party, DAP or any Affiliate thereof; and, provided, further, that with respect
to each Construction Land Interest, each Lessee's indemnity obligations with
respect to such Leased Property shall be governed solely by Section 3.3 of the
Construction Agency Agreement during the Construction Term therefor. It is
expressly understood and agreed that the indemnity provided for herein shall
survive the expiration or termination of, and shall be separate and independent
from any other remedy under this Master Agreement, the Lease or any other
Operative Document.
SECTION 7.2 Environmental Indemnity. In addition to and without
limitation of Section 7.1 or Section 3.3 of the Construction Agency Agreement,
each of DAP and each Lessee, jointly and severally, agrees to indemnify, hold
harmless and defend each Indemnitee, on an After- Tax Basis, from and against
any and all claims (including without limitation third party claims for
personal injury or real or personal property damage), losses (including but not
limited to any loss of value of any Leased Property), damages, liabilities,
fines, penalties, charges, suits, settlements, demands, administrative and
judicial proceedings (including informal proceedings and investigations) and
orders, judgments, remedial action, requirements, enforcement actions of any
kind, and all reasonable costs and expenses actually incurred in connection
therewith (including, but not limited to, reasonable attorneys' and/or
paralegals' fees and expenses), including, but not limited to, all costs
incurred in connection with any investigation or monitoring of site conditions
or any clean-up, remedial, removal or restoration work by any federal, state or
local government agency, arising directly or indirectly, in whole or in part,
out of
(i) the presence on or under any Land of any Hazardous
Materials, or any releases or discharges of any Hazardous Materials
on, under, from or onto any Land,
(ii) any activity, including, without limitation,
construction, carried on or undertaken on or off any Land, and whether
by a Lessee or any predecessor in title or any employees, agents,
contractors or subcontractors of a Lessee or any predecessor in title,
or any other Person, in connection with the handling, treatment,
removal, storage, decontamination, clean-up, transport or disposal of
any Hazardous Materials that at any
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time are located or present on or under or that at any time migrate,
flow, percolate, diffuse or in any way move onto or under any Land,
(iii) loss of or damage to any property or the environment
(including, without limitation, clean-up costs, response costs,
remediation and removal costs, cost of corrective action, costs of
financial assurance, fines and penalties and natural resource
damages), or death or injury to any Person, and all expenses
associated with the protection of wildlife, aquatic species,
vegetation, flora and fauna, and any mitigative action required by or
under Environmental Laws, in each case to the extent related to any
Leased Property,
(iv) any claim concerning any Leased Property's lack of
compliance with Environmental Laws, or any act or omission causing an
environmental condition on or with respect to any Leased Property that
requires remediation or would allow any governmental agency to record
a lien or encumbrance on the land records, or
(v) any residual contamination on or under any Land, or
affecting any natural resources on any Land, and to any contamination
of any property or natural resources arising in connection with the
generation, use, handling, storage, transport or disposal of any such
Hazardous Materials on or from any Leased Property; in each case
irrespective of whether any of such activities were or will be
undertaken in accordance with applicable laws, regulations, codes and
ordinances;
in any case with respect to the matters described in the foregoing clauses (i)
through (v) that arise or occur
(w) prior to or during the Lease Term,
(x) at any time during which a Lessee or any Affiliate thereof owns
any interest in or otherwise occupies or possesses any Leased Property or any
portion thereof, or
(y) during any period after and during the continuance of any Event of
Default until such time as possession of the Leased Properties has been turned
over to a Person other than DAP or any Affiliate thereof;
provided, however, no Lessee shall be required to indemnify any Indemnitee
under this Section 7.2 for any Claim to the extent that such Claim results from
the willful misconduct or gross negligence of any Indemnitee. It is expressly
understood and agreed that the indemnity provided for herein shall survive the
expiration or termination of, and shall be separate and independent from any
other remedy under this Master Agreement, the Lease or any other Operative
Document.
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SECTION 7.3 Proceedings in Respect of Claims. With respect to any
amount that a Lessee is requested by an Indemnitee to pay by reason of Section
7.1 or 7.2, such Indemnitee shall, if so requested by such Lessee and prior to
any payment, submit such additional information to such Lessee as such Lessee
may reasonably request and which is in the possession of, or under the control
of, such Indemnitee to substantiate properly the requested payment. In case any
action, suit or proceeding shall be brought against any Indemnitee, such
Indemnitee promptly shall notify DAP SUB of the commencement thereof (provided
that the failure of such Indemnitee to promptly notify DAP SUB shall not affect
DAP's or any Lessee's obligation to indemnify hereunder except to the extent
that a Lessee's rights to contest or defenses otherwise available to such
Lessee are materially prejudiced by such failure), and such Lessee shall be
entitled, at its expense, to participate in, and, to the extent that such
Lessee desires to, assume and control the defense thereof with counsel
reasonably satisfactory to such Indemnitee; provided, however, that such
Indemnitee may pursue a motion to dismiss such Indemnitee from such action,
suit or proceeding with counsel of such Indemnitee's choice at the Lessees'
expense; and provided further that a Lessee may assume and control the defense
of such proceeding only if DAP, if requested to do so by the Indemnitee, shall
have acknowledged in writing its and each Lessee's obligations to fully
indemnify such Indemnitee in respect of such action, suit or proceeding,
Lessees shall pay all reasonable costs and expenses related to such action,
suit or proceeding as and when incurred and the related Lessee shall keep such
Indemnitee fully apprised of the status of such action, suit or proceeding and
shall provide such Indemnitee with all information with respect to such action,
suit or proceeding as such Indemnitee shall reasonably request; and, provided
further, that no Lessee shall be entitled to assume and control the defense of
any such action, suit or proceeding if and to the extent that, (A) in the
reasonable opinion of such Indemnitee, (x) such action, suit or proceeding
involves any possibility of imposition of criminal liability or any material
risk of civil liability on such Indemnitee in excess of $5,000,000 or (y) such
action, suit or proceeding will involve a material risk of the sale, forfeiture
or loss of, or the creation of any Lien (other than a Permitted Lien) on any
Leased Property or any part thereof unless the related Lessee or DAP shall have
posted a bond or other security satisfactory to the relevant Indemnitees in
respect to such risk or (z) the control of such action, suit or proceeding
would involve an actual or potential conflict of interest, (B) such proceeding
involves Claims not fully indemnified by the Lessees which the related Lessee
and the Indemnitee have been unable to sever from the indemnified claim(s), or
(C) an Event of Default has occurred and is continuing. The Indemnitee may
participate in a reasonable manner at its own expense and with its own counsel
in any proceeding conducted by a Lessee in accordance with the foregoing.
If a Lessee fails to fulfill the conditions to such Lessee's assuming
the defense of any claim after receiving notice thereof on or prior to the
later of (a) the date that is five (5) days after receiving notice thereof and
(b) the date that is fifteen (15) days prior to the date that an answer or
response is required, the Indemnitee may undertake such defense, at the
Lessees' expense. No Lessee shall enter into any settlement or other compromise
with respect to any Claim in excess of $1,000,000 which is entitled to be
indemnified under Section 7.1 or 7.2 without the prior written
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consent of the related Indemnitee, which consent shall not be unreasonably
withheld. Unless an Event of Default shall have occurred and be continuing, no
Indemnitee shall enter into any settlement or other compromise with respect to
any claim which is entitled to be indemnified under Section 7.1 or 7.2 without
the prior written consent of DAP SUB, which consent shall not be unreasonably
withheld, unless such Indemnitee waives its right to be indemnified under
Section 7.1 or 7.2 with respect to such Claim.
Upon payment in full of any Claim by the Lessees pursuant to Section
7.1 or 7.2 to or on behalf of an Indemnitee, the Lessees, without any further
action, shall be subrogated to any and all claims that such Indemnitee may have
relating thereto (other than claims in respect of insurance policies maintained
by such Indemnitee at its own expense), and such Indemnitee shall execute such
instruments of assignment and conveyance, evidence of claims and payment and
such other documents, instruments and agreements as may be reasonably necessary
to preserve any such claims and otherwise cooperate with the Lessees and give
such further assurances as are reasonably necessary or advisable to enable the
Lessees vigorously to pursue such claims.
Any amount payable to an Indemnitee pursuant to Section 7.1 or 7.2
shall be paid to such Indemnitee promptly upon, but in no event later than
thirty (30) days after, receipt of a written demand therefor from such
Indemnitee, accompanied by a written statement describing in reasonable detail
the basis for such indemnity and the computation of the amount so payable,
provided, however, that in the event such indemnification arises as a result of
an action, suit or proceeding, for amounts other than expenses of defense, such
30 days shall be measured from the earlier of the date such matter is settled
or finally adjudicated and the date such Indemnitee makes a payment with
respect thereto that was required by Applicable Law to be paid or that was
consented to by DAP or a Lessee.
If for any reason the indemnification provided for in Section 7.1 or
7.2 is unavailable to an Indemnitee or is insufficient to hold an Indemnitee
harmless, then each of DAP and each Lessee agrees to contribute to the amount
paid or payable by such Indemnitee as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect not only the relative
benefits received by such Indemnitee on the one hand and by DAP and the Lessees
on the other hand but also the relative fault of such Indemnitee as well as any
other relevant equitable considerations. It is expressly understood and agreed
that the right to contribution provided for herein shall survive the expiration
or termination of and shall be separate and independent from any other remedy
under this Master Agreement, the Lease or any other Operative Document.
SECTION 7.4 General Tax Indemnity. (a) Tax Indemnity. Except as
otherwise provided in this Section 7.4, each of DAP and each Lessee, jointly
and severally, shall pay on an After-Tax Basis, and on written demand shall
indemnify and hold each Tax Indemnitee harmless from and against, any and all
fees (including, without limitation, documentation, recording, license and
registration fees), taxes (including, without limitation, income, gross
receipts, sales, rental, use, turnover, value-added, property, excise and stamp
taxes), levies, imposts, duties, charges,
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assessments or withholdings of any nature whatsoever, together with any
penalties, fines or interest thereon or additions thereto (any of the foregoing
being referred to herein as "Taxes" and individually as a "Tax" (for the
purposes of this Section 7.4, the definition of "Taxes" includes amounts
imposed on, incurred by, or asserted against each Tax Indemnitee as the result
of any prohibited transaction, within the meaning of Section 406 or 407 of
ERISA or Section 4975(c) of the Code, arising out of the transactions
contemplated hereby or by any other Operative Document)) imposed on or with
respect to any Tax Indemnitee, any Lessee, DAP, any Leased Property or any
portion thereof or any Land, or any sublessee or user thereof, by the United
States or by any state or local government or other taxing authority in the
United States in connection with or in any way relating to (i) the acquisition,
financing, mortgaging, construction, preparation, installation, inspection,
delivery, non-delivery, acceptance, rejection, purchase, ownership, possession,
rental, lease, sublease, maintenance, repair, storage, transfer of title,
redelivery, use, operation, condition, sale, return or other application or
disposition of all or any part of any Leased Property or the imposition of any
Lien (or incurrence of any liability to refund or pay over any amount as a
result of any Lien) thereon, (ii) Basic Rent or Supplemental Rent or the
receipts or earnings arising from or received with respect to any Leased
Property or any part thereof, or any interest therein or any applications or
dispositions thereof, (iii) any other amount paid or payable pursuant to the
Notes or any other Operative Documents, (iv) any Leased Property, any Land or
any part thereof or any interest therein (including, without limitation, all
assessments payable in respect thereof, including, without limitation, all
assessments noted on the related Title Policy), (v) all or any of the Operative
Documents, any other documents contemplated thereby, any amendments and
supplements thereto, and (vi) otherwise with respect to or in connection with
the transactions contemplated by the Operative Documents. Notwithstanding the
foregoing, during the Construction Term for any Construction Land Interest, (i)
DAP and the Lessees shall only be obligated to indemnify the Lessor and its
Affiliates, successors, permitted assigns, permitted transferees, employees,
officers, directors and agents, with respect to Taxes related to such
Construction Land Interest and (ii) Lessor hereby indemnifies the other Tax
Indemnitees (as defined in clause (ii) of the definition thereof) for such
Taxes, to the extent that Lessor receives payment therefor from DAP or any
Lessee.
(b) Exclusions from General Tax Indemnity. Section 7.4(a) shall not
apply to:
(i) Taxes on, based on, or measured by or with respect to
net income of the Lessor, the Agent and the Lenders (including,
without limitation, minimum Taxes, capital gains Taxes, Taxes on or
measured by items of tax preference or alternative minimum Taxes)
other than (A) any such Taxes that are, or are in the nature of,
sales, use, license, rental or property Taxes, and (B) withholding
Taxes imposed by the United States or any state in which Leased
Property is located (i) on payments with respect to the Notes, to the
extent imposed by reason of a change in Applicable Law occurring after
the date on which Lender became a Lender hereunder or (ii) on Rent, to
the extent the net payment of Rent after deduction of such withholding
Taxes would be less than amounts currently payable with respect to the
Funded Amounts;
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(ii) Taxes on, based on, or in the nature of, or measured
by Taxes on doing business and business privilege, franchise, capital,
capital stock, net worth, gross receipts or similar Taxes, other than
(A) any increase in such Taxes imposed on such Tax Indemnitee by any
state in which Leased Property is located, net of any decrease in such
taxes realized by such Tax Indemnitee, to the extent that such tax
increase would not have occurred if on each Funding Date the Lessor
and the Lenders had advanced funds to a Lessee or the Construction
Agent in the form of loans secured by the Leased Property in an amount
equal to the Funded Amounts funded on such Funding Date, with debt
service for such loans equal to the Basic Rent payable on each Payment
Date and a principal balance at the maturity of such loans in a total
amount equal to the Funded Amounts at the end of the Lease Term, or
(B) any Taxes that are or are in the nature of sales, use, rental,
license or property Taxes relating to any Leased Property;
(iii) Taxes that are based on, or measured by, the fees or
other compensation received by a Person acting as Agent (in its
individual capacities) or any Affiliate of any thereof for acting as
trustee under the Loan Agreement;
(iv) Taxes that result from any act, event or omission, or
are attributable to any period of time, that occurs after the earlier
of (A) the expiration of the Lease Term with respect to any Leased
Property and, if such Leased Property is required to be returned to
the Lessor in accordance with the Lease, such return and (B) the
discharge in full of the Lessees' obligations to pay the Lease
Balance, or any amount determined by reference thereto, with respect
to any Leased Property and all other amounts due under the Lease,
unless such Taxes relate to acts, events or matters occurring prior to
the earlier of such times or are imposed on or with respect to any
payments due under the Operative Documents after such expiration or
discharge;
(v) Taxes imposed on a Tax Indemnitee that result from any
voluntary sale, assignment, transfer or other disposition or
bankruptcy by such Tax Indemnitee or any related Tax Indemnitee of any
interest in any Leased Property or any part thereof, or any interest
therein or any interest or obligation arising under the Operative
Documents, or from any sale, assignment, transfer or other disposition
of any interest in such Tax Indemnitee or any related Tax Indemnitee,
it being understood that each of the following shall not be considered
a voluntary sale: (A) any substitution, replacement or removal of any
of the Leased Property by any Lessee, (B) any sale or transfer
resulting from the exercise by any Lessee of any termination option,
any purchase option or sale option, (C) any sale or transfer while an
Event of Default shall have occurred and be continuing under the
Lease, and (D) any sale or transfer resulting from the Lessor's
exercise of remedies under the Lease;
(vi) any Tax which is being contested in accordance with
the provisions of Section 7.4(c), during the pendency of such contest;
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(vii) any Tax that is imposed on a Tax Indemnitee as a result
of such Tax Indemnitee's gross negligence or willful misconduct (other
than gross negligence or willful misconduct imputed to such Tax
Indemnitee solely by reason of its interest in any Leased Property);
(viii) any Tax that results from a Tax Indemnitee engaging,
with respect to any Leased Property, in transactions unrelated to the
Leased Properties or the transactions contemplated by the Operative
Documents;
(ix) to the extent any interest, penalties or additions to
tax result in whole or in part from the failure of a Tax Indemnitee to
file a return or pay a Tax that it is required to file or pay in a
proper and timely manner, unless such failure (A) results from the
transactions contemplated by the Operative Documents in circumstances
where Lessee did not give timely notice to such Tax Indemnitee (and
such Tax Indemnitee otherwise had no actual knowledge) of such filing
or payment requirement that would have permitted a proper and timely
filing of such return or payment of such Tax, as the case may be, or
(B) results from the failure of Lessee to supply information necessary
for the proper and timely filing of such return or payment of such
Tax, as the case may be, that was not in the possession of such Tax
Indemnitee; and
(x) any Tax that results from the breach by the Lessor of
its representation and warranty made in Section 4.3(g) or the breach
of any Lender of its representation and warranty made in Section
4.4(b).
(c) Contests. If any claim shall be made against any Tax Indemnitee or
if any proceeding shall be commenced against any Tax Indemnitee (including a
written notice of such proceeding) for any Taxes as to which the Lessees may
have an indemnity obligation pursuant to Section 7.4, or if any Tax Indemnitee
shall determine that any Taxes as to which the Lessees may have an indemnity
obligation pursuant to Section 7.4 may be payable, such Tax Indemnitee shall
promptly notify DAP SUB. DAP SUB shall be entitled, at its expense, to
participate in, and, to the extent that DAP SUB desires to, assume and control
the defense thereof; provided, however, that DAP, if requested to do so by such
Tax Indemnitee, shall have acknowledged in writing its and each Lessee's
obligation to fully indemnify such Tax Indemnitee in respect of such action,
suit or proceeding if the contest is unsuccessful; and, provided further, that
DAP SUB shall not be entitled to assume and control the defense of any such
action, suit or proceeding (but the Tax Indemnitee shall then contest, at the
sole cost and expense of DAP and the Lessees, on behalf of DAP with
representatives reasonably satisfactory to DAP or a Lessee) if and to the
extent that, (A) in the reasonable opinion of such Tax Indemnitee, such action,
suit or proceeding (x) involves any meaningful risk of imposition of criminal
liability or any material risk of civil liability in excess of $5,000,000 on
such Tax Indemnitee or (y) will involve a material risk of the sale, forfeiture
or loss of, or the creation of any Lien (other than a Permitted Lien) on any
Leased Property or any part thereof unless DAP SUB or a Lessee shall have
posted a bond or other
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security satisfactory to the relevant Tax Indemnitees in respect to such risk,
(B) such proceeding involves Claims not fully indemnified by the Lessees which
DAP SUB and the Tax Indemnitee have been unable to sever from the indemnified
claim(s), (C) an Event of Default has occurred and is continuing, (D) such
action, suit or proceeding involves matters which extend beyond or are
unrelated to the Transaction and if determined adversely could be materially
detrimental to the interests of such Tax Indemnitee notwithstanding
indemnification by the Lessees or (E) such action, suit or proceeding involves
the federal or any state income tax liability of the Tax Indemnitee. With
respect to any contests controlled by a Tax Indemnitee, (i) if such contest
relates to the federal or any state income tax liability of such Tax
Indemnitee, such Tax Indemnitee shall be required to conduct such contest only
if DAP SUB shall have provided to such Tax Indemnitee an opinion of independent
tax counsel selected by the Tax Indemnitee and reasonably satisfactory to DAP
SUB stating that a reasonable basis exists to contest such claim or (ii) in the
case of an appeal of an adverse determination of any contest relating to any
Taxes, an opinion of such counsel to the effect that such appeal is more likely
than not to be successful, provided, however, such Tax Indemnitee shall in no
event be required to appeal an adverse determination to the United States
Supreme Court. The Tax Indemnitee may participate in a reasonable manner at its
own expense and with its own counsel in any proceeding conducted by DAP SUB in
accordance with the foregoing.
Each Tax Indemnitee shall, at DAP's and the Lessees' expense, supply
DAP SUB with such information and documents in such Tax Indemnitee's possession
as are reasonably requested by DAP SUB and are necessary or advisable for DAP
SUB to participate in any action, suit or proceeding to the extent permitted by
this Section 7.4. Unless an Event of Default shall have occurred and be
continuing, no Tax Indemnitee shall enter into any settlement or other
compromise with respect to any Claim which is entitled to be indemnified under
this Section 7.4 without the prior written consent of DAP SUB, which consent
shall not be unreasonably withheld, unless such Tax Indemnitee waives its right
to be indemnified under this Section 7.4 with respect to such Claim.
Notwithstanding anything contained herein to the contrary, (a) a Tax
Indemnitee will not be required to contest) a claim with respect to the
imposition of any Tax if such Tax Indemnitee shall waive its right to
indemnification under this Section 7.4 with respect to such claim (and any
related claim with respect to other taxable years the contest of which is
precluded as a result of such waiver) and (b) no Tax Indemnitee shall be
required to contest any claim if the subject matter thereof shall be of a
continuing nature and shall have previously been decided adversely, unless
there has been a change in law which in the opinion of Tax Indemnitee's counsel
creates substantial authority for the success of such contest. Each Tax
Indemnitee and DAP SUB shall consult in good faith with each other regarding
the conduct of such contest controlled by either.
(d) Reimbursement for Tax Savings. If (x) a Tax Indemnitee shall
obtain a credit or refund of any Taxes paid by DAP or any Lessee pursuant to
this Section 7.4 or (y) by reason of the incurrence or imposition of any Tax
for which a Tax Indemnitee is indemnified
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hereunder or any payment made to or for the account of such Tax Indemnitee by
DAP or any Lessee pursuant to this Section 7.4, such Tax Indemnitee at any time
realizes a reduction in any Taxes for which the Lessees are not required to
indemnify such Tax Indemnitee pursuant to this Section 7.4, which reduction in
Taxes was not taken into account in computing such payment by DAP SUB or any
Lessee to or for the account of such Tax Indemnitee, then such Tax Indemnitee
shall promptly pay to DAP SUB (xx) the amount of such credit or refund,
together with the amount of any interest received by such Tax Indemnitee on
account of such credit or refund or (yy) an amount equal to such reduction in
Taxes, as the case may be; provided that no such payment shall be made so long
as an Event of Default shall have occurred and be continuing (but shall be paid
promptly after all Events of Default have been cured) and, provided, further,
that the amount payable to DAP by any Tax Indemnitee pursuant to this Section
7.4(d) shall not at any time exceed the aggregate amount of all indemnity
payments made by DAP and the Lessees under this Section 7.4 to such Tax
Indemnitee with respect to the Taxes which gave rise to the credit or refund or
with respect to the Tax which gave rise to the reduction in Taxes less the
amount of all prior payments made to DAP by such Tax Indemnitee under this
Section 7.4(d). Each Tax Indemnitee agrees to act in good faith to claim such
refunds and other available Tax benefits, and take such other actions as may be
reasonable to minimize any payment due from DAP or the Lessees pursuant to this
Section 7.4. The disallowance or reduction of any credit, refund or other tax
savings with respect to which a Tax Indemnitee has made a payment to DAP and
the Lessees under this Section 7.4(d) shall be treated as a Tax for which DAP
SUB and the Lessees are obligated to indemnify such Tax Indemnitee hereunder
without regard to Section 7.4(b) hereof.
(e) Payments. Any Tax indemnifiable under this Section 7.4 shall be
paid by DAP or a Lessee directly when due to the applicable taxing authority if
direct payment is practicable and permitted. If direct payment to the
applicable taxing authority is not permitted or is otherwise not made, any
amount payable to a Tax Indemnitee pursuant to Section 7.4 shall be paid within
thirty (30) days after receipt of a written demand therefor from such Tax
Indemnitee accompanied by a written statement describing in reasonable detail
the amount so payable, but not before the date that the relevant Taxes are due.
Any payments made pursuant to Section 7.4 shall be made to the Tax Indemnitee
entitled thereto or DAP, as the case may be, in immediately available funds at
such bank or to such account as specified by the payee in written directions to
the payor, or, if no such direction shall have been given, by check of the
payor payable to the order of the payee by certified mail, postage prepaid at
its address as set forth in this Master Agreement. Upon the request of any Tax
Indemnitee with respect to a Tax that DAP and the Lessees are required to pay,
DAP SUB shall furnish to such Tax Indemnitee the original or a certified copy
of a receipt for DAP's or a Lessee's payment of such Tax or such other evidence
of payment as is reasonably acceptable to such Tax Indemnitee.
(f) Reports. If DAP or any Lessee knows of any report, return or
statement required to be filed with respect to any Taxes that are subject to
indemnification under this Section 7.4, such Lessee shall, if such Lessee is
permitted by Applicable Law, timely file such
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report, return or statement (and, to the extent permitted by law, show
ownership of the applicable Leased Property in such Lessee); provided, however,
that if such Lessee is not permitted by Applicable Law or does not have access
to the information required to file any such report, return or statement, such
Lessee will promptly so notify the appropriate Tax Indemnitee, in which case
Tax Indemnitee will file such report. In any case in which the Tax Indemnitee
will file any such report, return or statement, the related Lessee shall, upon
written request of such Tax Indemnitee, prepare such report, return or
statement for filing by such Tax Indemnitee or, if such Tax Indemnitee so
requests, provide such Tax Indemnitee with such information as is reasonably
available to such Lessee.
(g) Verification. At DAP SUB's request, the amount of any indemnity
payment by a Lessee or any payment by a Tax Indemnitee to DAP pursuant to this
Section 7.4 shall be verified and certified by an independent public accounting
firm selected by DAP SUB and reasonably acceptable to the Tax Indemnitee.
Unless such verification shall disclose an error in DAP's favor of 5% or more
of the related indemnity payment, the costs of such verification shall be borne
by DAP; otherwise, such costs shall be borne by the related Tax Indemnitee. In
no event shall DAP or any Lessee have the right to review the Tax Indemnitee's
tax returns or receive any other confidential information from the Tax
Indemnitee in connection with such verification. The Tax Indemnitee agrees to
cooperate with the independent public accounting firm performing the
verification and to supply such firm with all information reasonably necessary
to permit it to accomplish such verification, provided that the information
provided to such firm by such Tax Indemnitee shall be for its confidential use.
The parties agree that the sole responsibility of the independent public
accounting firm shall be to verify the amount of a payment pursuant to this
Master Agreement and that matters of interpretation of this Master Agreement
are not within the scope of the independent accounting firm's responsibilities.
SECTION 7.5 Increased Costs, etc.
(a) Illegality. Notwithstanding any other provision herein, if any
change in any Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any Funding Party to make or maintain LIBOR
Advances as contemplated by this Master Agreement, (a) the commitment of such
Funding Party hereunder to continue LIBOR Advance as such and convert Funded
Amounts to LIBOR Advance shall forthwith be cancelled and (b) such Funding
Party's Funded Amounts then outstanding as LIBOR Advance, if any, shall be
converted automatically to Base Rate Advances on the respective last days of
the then current Rent Periods with respect to such Funded Amounts or within
such earlier period as required by law. If any such conversion of a LIBOR
Advance occurs on a day which is not the last day of the then current Rent
Period with respect thereto, each of DAP and each Lessee, jointly and
severally, shall pay to such Funding Party such amounts, if any, as may be
required pursuant to Section 7.5(f).
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(b) Requirements of Law. In the event that Eurocurrency Reserve
Requirements or any change in any Requirement of Law or in the interpretation
or application thereof or compliance by any Funding Party 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 Funding Party to any tax of any kind
whatsoever with respect to this Master Agreement, any Note or any
LIBOR Advance made by it, or change the basis of taxation of payments
to such Funding Party in respect thereof (except for taxes covered by
Section 7.5(d) and changes in franchise taxes or the rate of tax on
the overall net income of such Funding Party);
(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 Funding Party which is not
otherwise included in the determination of the LIBOR Rate; or
(iii) shall impose on such Funding Party any other
condition;
and the result of any of the foregoing is to increase the cost to such Funding
Party, by an amount which such Funding Party deems to be material, of making,
converting into, continuing or maintaining LIBOR Advances or to reduce any
amount receivable hereunder in respect thereof then, in any such case, each of
DAP SUB and each Lessee, jointly and severally, shall promptly pay such Funding
Party, upon its demand, any additional amounts necessary to compensate such
Funding Party for such increased cost or reduced amount receivable. If any
Funding Party becomes entitled to claim any additional amounts pursuant to this
subsection in relation to such outstanding LIBOR Advances, it shall promptly
notify the DAP SUB, through the Agent, of the event by reason of which it has
become so entitled. A certificate as to any additional amounts payable pursuant
to this subsection submitted by such Funding Party, through the Agent, to the
DAP SUB in good faith and setting forth in reasonable detail the calculation of
such amounts shall be conclusive in the absence of manifest error. The
provisions of this paragraph (b) shall survive the termination of this Master
Agreement and the Lease and the payment of the Notes and all other amounts
payable under the Operative Documents.
(c) Capital Adequacy. In the event that any Funding Party or
corporation controlling such Funding Party shall have determined that any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Funding Party or
such corporation with any request or directive regarding capital adequacy
(whether or not having the force of law) from any Governmental Authority made
subsequent to the date hereof does or shall have the effect of reducing the
rate of return on such Funding Party's capital as a consequence of its
obligations hereunder to a level below that which such
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Funding Party could have achieved but for such change or compliance (taking
into consideration such Funding Party's policies with respect to capital
adequacy) by an amount deemed by such Funding Party to be material, then from
time to time, after submission by such Funding Party in good faith to DAP SUB
(with a copy to the Agent) of a written request therefor setting forth in
reasonable detail the calculation of such amount (which request shall be
conclusive in the absence of manifest error), each of DAP and each Lessee,
jointly and severally, shall pay to such Funding Party such additional amount
or amounts as will compensate such Funding Party for such reduction to the
extent imposed generally on other lessees or borrowers with whom such Funding
Party has similar lease or credit arrangements (but in the case of outstanding
Base Rate Advances, without duplication of any amounts already covered by such
Funding Party by reason of an adjustment in the applicable Base Rate). The
provisions of this paragraph (c) shall survive the termination of this Master
Agreement and the Lease and the payment of the Notes and all other amounts
payable under the Operative Documents.
(d) Taxes. Subject to Section 7.5(e), all payments made by a Lessee
under the Lease and the other Operative Documents shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding, in the case of
the Agent and each Funding Party, net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Agent or such Funding Party, as the
case may be, as a result of a present or former connection between the
jurisdiction of the government or taxing authority imposing such tax and the
Agent or such Funding Party (excluding a connection arising solely from the
Agent or such Funding Party having executed, delivered or performed its
obligations or received a payment under, or enforced, this Master Agreement or
any other Operative Document) or any political subdivision or taxing authority
thereof or therein (all such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions and withholdings being hereinafter called
"Withholding Taxes"). If any Withholding Taxes are required to be withheld from
any amounts payable to the Agent or any Funding Party hereunder or under any
other Operative Document, the amounts so payable to the Agent or such Funding
Party (so long as such Funding Party is in compliance with Section 7.5(e), as
appropriate) shall be increased to the extent necessary to yield to the Agent
or such Funding Party (after payment of all Withholding Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified
in the Operative Documents. Whenever any Withholding Taxes are payable by a
Lessee, as promptly as possible thereafter such Lessee shall send to the Agent
for its own account or for the account of such Funding Party, as the case may
be, a certified copy of an original official receipt received by such Lessee
showing payment thereof. If a Lessee fails to pay any Withholding Taxes when
due to the appropriate taxing authority or fails to remit to the Agent the
required receipts or other required documentary evidence, each of DAP SUB and
each Lessee, jointly and severally, shall indemnify the Agent and the Funding
Parties for any incremental taxes, interest or penalties that may become
payable by the Agent or any Funding Party as a result of any such failure. The
agreements in this subsection shall survive the termination of this Master
Agreement and the
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Lease and the payment of the Notes and all other amounts payable under the
Operative Documents.
(e) Tax Forms. Each Lender to this Master Agreement on the Initial
Closing Date that is not incorporated under the laws of the United States of
America or a state thereof agrees that, on or prior to the Initial Closing
Date, it will deliver to DAP SUB and the Agent two duly completed copies of (i)
United States Internal Revenue Service Form 1001 or 4224 or successor
applicable form, as the case may be, and (ii) an Internal Revenue Service Form
W-8 or W-9 or successor applicable form. Each such Lender also agrees to
deliver to DAP SUB and the Agent two further copies of the said Form 1001 or
4224 and Form W-8 or W-9, or successor applicable forms or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to DAP SUB, and such
extensions or renewals thereof as may reasonably be requested by DAP SUB or the
Agent, unless in any such case an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on which
any such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Funding Party from duly completing and
delivering any such form with respect to it and such Funding Party so advises
DAP SUB and the Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under the Operative Documents
without deduction or withholding of any United States federal income taxes and
(ii) in the case of a Form W-8 or W-9, that it is entitled to an exemption from
United States backup withholding tax.
(f) Breakage Costs. Each of DAP and each Lessee, jointly and
severally, agrees to indemnify each Funding Party and to hold each Funding
Party harmless from any loss or expense which such Funding Party may sustain or
incur as a consequence of (a) default by a Lessee in payment when due of the
principal amount of or interest on any LIBOR Advance, (b) default by a Lessee
in making a borrowing or conversion after such Lessee or the Construction Agent
has given (or is deemed to have given) a notice in accordance with this Master
Agreement, (c) default by a Lessee in making any prepayment of LIBOR Advances
after such Lessee has given a notice thereof in accordance with the provisions
of the Operative Documents or (d) the making of a prepayment, payment or
conversion, of LIBOR Advances on a day which is not the last day of a Rent
Period with respect thereto, including, without limitation, in each case, any
such loss (other than non-receipt of the Applicable Margin or, without
duplication, anticipated profits) or expense arising from the reemployment of
funds obtained by it or from fees payable to terminate the deposits from which
such funds were obtained (it being understood that any such calculation will be
made on notional amounts as the Funding Parties are not required to show that
they matched deposits specifically). A certificate as to any additional amounts
payable pursuant to this subsection submitted by such Funding Party, through
the Agent, to DAP SUB in good faith shall be conclusive in the absence of
manifest error. The provisions of this paragraph (f) shall survive the
termination of this Master Agreement and the Lease and the payment of the Notes
and all other amounts payable under the Operative Documents.
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(g) Action of Affected Funding Parties. Each Funding Party agrees to
use reasonable efforts (including reasonable efforts to change the booking
office for its Loans) to avoid or minimize any illegality pursuant to Section
7.5(a) or any amounts which might otherwise be payable pursuant to Section
7.5(c) or (d); provided, however, that such efforts shall not cause the
imposition on such Funding Party of any additional costs or legal or regulatory
burdens reasonably deemed by such Funding Party to be material and shall not be
deemed by such Funding Party to be otherwise contrary to its policies. In the
event that such reasonable efforts are insufficient to avoid all such
illegality or all amounts that might be payable pursuant to Section 7.5(c) or
(d), then such Funding Party (the "Affected Funding Party") shall use its
reasonable efforts to transfer to any other Funding Party (which itself is not
then an Affected Funding Party) its Loans and Commitment, subject to the
provisions of Section 6.2; provided, however, that such transfer shall not be
deemed by such Affected Funding Party, in its sole discretion, to be
disadvantageous to it or contrary to its policies. In the event that the
Affected Funding Party is unable, or otherwise is unwilling, so to transfer its
Loans and Commitment, DAP SUB may designate an alternate lender (reasonably
acceptable to the Agent) to purchase the Affected Funding Party's Loans and
Commitment, at par and including accrued interest, and, subject to the
provisions of Section 6.2, the Affected Funding Party shall transfer its
Commitment to such alternate lender and such alternate lender shall become a
Funding Party hereunder. Any fee payable to the Agent pursuant to Section 6.2
in connection with such transfer shall be for the account of DAP and the
Lessees.
SECTION 7.6 End of Term Indemnity. In the event that at the end of the
Lease Term for the Leased Properties: (i) the related Lessee elects the option
set forth in Section 14.6 of the Lease, and (ii) after the Lessor receives the
sales proceeds from the Leased Properties under Section 14.6 or 14.7 of the
Lease, together with Lessees' payment of the Recourse Deficiency Amount, the
Lessor shall not have received the entire Lease Balance, then, within 90 days
after the end of the Lease Term, the Lessor or the Agent may obtain, at
Lessees' sole cost and expense, a report from the Appraiser (or, if the
Appraiser is not available, another appraiser reasonably satisfactory to the
Lessor or the Agent, as the case may be, and approved by DAP SUB, such approval
not to be unreasonably withheld) in form and substance reasonably satisfactory
to the Lessor and the Agent (the "Report") to establish the reason for any
decline in value of the Leased Properties from the Lease Balance. The Lessees,
jointly and severally, shall promptly reimburse the Lessor for the amount equal
to such decline in value to the extent that the Report indicates that such
decline was due to
(v) during the time while any property was a Leased Property,
extraordinary use, failure to maintain, to repair, to restore, to rebuild or to
replace as required by the Operative Documents, failure to comply with all
Applicable Laws, failure to use good workmanship with respect to work performed
after the Closing Date related to such Leased Property, method of installation
or removal or maintenance, repair, rebuilding or replacement, or any other
cause or condition within the power of a Lessee to control or
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effect resulting in the Building failing to be of the type and quality
contemplated by the Appraisal (excepting in each case ordinary wear and tear),
or
(w) any Alteration made to, or any rebuilding of, any Leased Property
or any part thereof by any Lessee, or
(x) any restoration or rebuilding carried out by any Lessee or any
condemnation of any portion of any Leased Property pursuant to Article X of the
Lease, or
(y) any use of any Leased Property or any part thereof by any Lessee
other than as permitted by the Lease, or any act or omission constituting a
breach of any requirement, condition, restriction or limitation set forth in
the related Deed or the related Purchase Agreement, or
(z) the existence or compliance with any IDB Documentation.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.1 Survival of Agreements. The representations, warranties,
covenants, indemnities and agreements of the parties provided for in the
Operative Documents, and the parties' obligations under any and all thereof,
shall survive the execution and delivery of this Master Agreement and any of
the Operative Documents, the transfer of any Land to the Lessor as provided
herein (and shall not be merged into any Deed), any disposition of any interest
of the Lessor in any Leased Property, the purchase and sale of the Notes,
payment therefor and any disposition thereof and shall be and continue in
effect notwithstanding any investigation made by any party hereto or to any of
the other Operative Documents and the fact that any such party may waive
compliance with any of the other terms, provisions or conditions of any of the
Operative Documents.
SECTION 8.2 Notices. Unless otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be addressed to such parties at the addresses therefor as set
forth in Schedule 8.2, or such other address as any such party shall specify to
the other parties hereto, and shall be deemed to have been given (i) the
Business Day after being sent, if sent by overnight courier service; (ii) the
Business Day received, if sent by messenger; (iii) the day sent, if sent by
facsimile and confirmed electronically or otherwise during business hours of a
Business Day (or on the next Business Day if otherwise sent by facsimile and
confirmed electronically or otherwise); or (iv) three Business Days after being
sent, if sent by registered or certified mail, postage prepaid.
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SECTION 8.3 Counterparts. This Master Agreement may be executed by the
parties hereto in separate counterparts (including by facsimile), each of which
when so executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 8.4 Amendments. No Operative Document nor any of the terms
thereof may be terminated, amended, supplemented, waived or modified with
respect to DAP SUB, any Lessee or any Funding Party, except (a) in the case of
a termination, amendment, supplement, waiver or modification to be binding on
the Lessees, with the written agreement or consent of DAP SUB, and (b) in the
case of a termination, amendment, supplement, waiver or modification to be
binding on the Funding Parties, with the written agreement or consent of the
Required Funding Parties; provided, however, that
(x) notwithstanding the foregoing provisions of this Section 8.4 or
clause (y) below, the consent of each Funding Party affected thereby shall be
required for any amendment, modification or waiver directly:
(i) modifying any of the provisions of this Section 8.4,
changing the definition of "Required Funding Parties" or "Required
Lenders", or increasing the Commitment of such Funding Party;
(ii) amending, modifying, waiving or supplementing any of
the provisions of Section 3 of the Loan Agreement or the
representations of such Funding Party in Section 4.3 or 4.4 or the
covenants of such Funding Party in Section 6 of this Master Agreement;
(iii) reducing any amount payable to such Funding Party
under the Operative Documents or extending the time for payment of any
such amount, including, without limitation, any Rent, any Funded
Amount, any fees, any indemnity, any Leased Property Balance, the
Lease Balance, any Funding Party Balance, the Recourse Deficiency
Amount, interest or Yield; or
(iv) consenting to any extension of the Lease Term,
releasing any of the collateral assigned to the Agent and the Lenders
pursuant to any Mortgage and any Assignment of Lease and Rents (but
excluding a release of any rights that the Lenders may have in any
Leased Property, or the proceeds thereof as contemplated in the
definition of "Release Date"), releasing any Lessee from its
obligations in respect of the payments of Rent and the Lease Balance,
releasing DAP SUB from its obligations under the Operative Documents
or changing the absolute and unconditional character of any such
obligation; and
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(y) no such termination, amendment, supplement, waiver or modification
shall, without the written agreement or consent of the Lessor, the Agent and
the Required Lenders, be made to the Lease or any Security Agreement and
Assignment; and
(z) subject to the foregoing clauses (x) and (y), so long as no Event
of Default has occurred and is continuing, the Lessor, the Agent and the
Lenders may not amend, supplement, waive or modify any terms of the Loan
Agreement, the Notes, the Mortgages and the Assignments of Lease and Rents
without the consent of DAP SUB (such consent not to be unreasonably withheld or
delayed); provided that in no event may any Operative Document be amended so as
to increase the obligations of DAP or any Lessee, or deprive DAP or any Lessee
of any rights thereunder, without the written consent of DAP SUB.
SECTION 8.5 Headings, etc. The Table of Contents and headings of the
various Articles and Sections of this Master Agreement are for convenience of
reference only and shall not modify, define, expand or limit any of the terms
or provisions hereof.
SECTION 8.6 Parties in Interest. Except as expressly provided herein,
none of the provisions of this Master Agreement is intended for the benefit of
any Person except the parties hereto and their respective successors and
permitted assigns.
SECTION 8.7 GOVERNING LAW. THIS MASTER AGREEMENT HAS BEEN DELIVERED
IN, AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE.
SECTION 8.8 Expenses. Whether or not the transactions herein
contemplated are consummated, each of DAP and the Lessees, jointly and
severally, agrees to pay, as Supplemental Rent, all actual, reasonable and
documented out-of-pocket costs and expenses of the Lessor, the Agent and the
Lenders in connection with the preparation, execution and delivery of the
Operative Documents and the documents and instruments referred to therein and
any amendment, waiver or consent relating thereto (including, without
limitation, the reasonable fees and disbursements of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, but
not including any fees and disbursements for any other outside counsel
representing any Lender) and of the Lessor, the Agent and the Lenders in
connection with endeavoring to enforce the Operative Documents and the
documents and instruments referred to therein (including, without limitation,
the reasonable fees actually incurred and disbursements of counsel for the
Lessor, the Agent and the Lenders), unless such enforcement action is finally
denied by a court on the merits. All references in the Operative Documents to
"attorneys' fees" or "reasonable attorneys fees" shall mean reasonable
attorneys' fees actually incurred, without regard to any statutory definition
thereof.
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SECTION 8.9 Severability. Any provision of this Master Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
SECTION 8.10 Liabilities of the Funding Parties: Sharing of Payments.
(a) No Funding Party shall have any obligation to any other Funding Party or to
the Guarantor or any Lessee with respect to the transactions contemplated by
the Operative Documents except those obligations of such Funding Party
expressly set forth in the Operative Documents or except as set forth in the
instruments delivered in connection therewith, and no Funding Party shall be
liable for performance by any other party hereto of such other party's
obligations under the Operative Documents except as otherwise so set forth. No
Lender shall have any obligation or duty to DAP or any Lessee, any other
Funding Parties or any other Person with respect to the transactions
contemplated hereby except to the extent of the obligations and duties
expressly set forth in this Master Agreement or the Loan Agreement.
(b) If any Funding Party shall obtain any payment (whether voluntary
or involuntary, or through the exercise of any right of set-off or otherwise)
on account of the Advances made by it in excess of its ratable share of
payments on account of the Advances obtained by all the Funding Parties, such
Funding Parties shall forthwith purchase from the other Funding Parties such
participations in the Advances owed to them as shall be necessary to cause such
purchasing Funding Party to share the excess payment ratably with each of them,
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Funding Party, such purchase from
each Funding Party shall be rescinded and such Funding Party shall repay to the
purchasing Funding Party the purchase price to the extent of such Funding
Party's ratable share (according to the proportion of (i) the amount of the
participation purchased from such Funding Party as a result of such excess
payment to (ii) the total amount of such excess payment) of such recovery
together with an amount equal to such Funding Party's ratable share (according
to the proportion of (i) the amount of such Funding Party's required repayment
to (ii) the total amount so recovered from the purchasing Funding Party) of any
interest or other amount paid or payable by the purchasing Funding Party in
respect of the total amount so recovered. Each Funding Party agrees that any
Funding Party so purchasing a participation from another Funding Party pursuant
to this Section 8.10 may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off) with respect to such
participation as fully as if such Funding Party were the direct creditor of
such Funding Party in the amount of such participation.
SECTION 8.11 Submission to Jurisdiction; Waivers. Each party hereto
hereby irrevocably and unconditionally:
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(i) submits for itself and its property in any legal
action or proceeding relating to this Master Agreement or any other
Operative Document, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of Florida sitting in Hillsborough or Polk County,
the courts of the United States of America for the Middle District of
Florida, and appellate courts from any thereof;
(ii) consents that any such action or proceedings may be
brought to such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same; and
(iii) agrees that nothing herein shall affect the right to
effect service of process in any manner permitted by law.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS MASTER
AGREEMENT, ANY OTHER OPERATIVE DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
SECTION 8.12 Liabilities of the Agent. The Agent shall have no duty,
liability or obligation to any party to this Master Agreement with respect to
the transactions contemplated hereby except those duties, liabilities or
obligations expressly set forth in this Master Agreement or the Loan Agreement,
and any such duty, liability or obligations of the Agent shall be as expressly
limited by this Master Agreement or the Loan Agreement, as the case may be. All
parties to this Master Agreement acknowledge that the Agent is not, and will
not be, performing any due diligence with respect to documents and information
received pursuant to this Master Agreement or any other Operative Agreement
including, without limitation, any Environmental Audit, Title Policy or survey.
The acceptance by the Agent of any such document or information shall not
constitute a waiver by any Funding Party of any representation or warranty of
DAP SUB or any Lessee even if such document or information indicates that any
such representation or warranty is untrue.
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IN WITNESS WHEREOF, the parties hereto have caused this Master
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
DISCOUNT AUTO PARTS, INC., as Guarantor
By:
-------------------------------------
Name Printed:
---------------------------
Title:
----------------------------------
DISCOUNT AUTO PARTS DISTRIBUTION
CENTER, INC., as a Lessee
By:
-------------------------------------
Name Printed:
---------------------------
Title:
----------------------------------
MASTER
AGREEMENT
S-1
74
ATLANTIC FINANCIAL GROUP, LTD., as
Lessor
By: Atlantic Financial Managers, Inc.,
its General Partner
By:
-------------------------------------
Name Printed: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------
Title: President
----------------------------------
SUNTRUST BANK, as Agent and as a Lender
By:
-------------------------------------
Name Printed:
---------------------------
Title:
----------------------------------
MASTER
AGREEMENT
S-2
75
SCHEDULE 2.2
AMOUNT OF EACH FUNDING PARTY'S COMMITMENT
Lessor Commitment Percentage: 3.5%
Lessor Commitment: $980,000
Lender Commitment Percentages:
SunTrust Bank 96.5%
Lender Commitments:
SunTrust Bank $27,020,000
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SCHEDULE 8.2
ADDRESSES FOR NOTICES
DAP: Discount Auto Parts, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to
Trenam, Kemker, Scharf, Barkin, Frye,
▇'▇▇▇▇▇ & ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Facsimile: 813-229-6553
Lessor: Atlantic Financial Group, Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile: 214/871-2799
Lender and Agent: SunTrust Bank, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code 1106
Attn: ▇▇▇▇ ▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
SunTrust Equitable Securities Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor
Mail Code 3951
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: 404/230-1344
77
APPENDIX A
to
Master Agreement, Lease,
Loan Agreement and Construction Agency Agreement
DEFINITIONS AND INTERPRETATION
M. Interpretation. In each Operative Document, unless a clear contrary
intention appears:
(i) the singular number includes the plural number and vice
versa;
(ii) reference to any Person includes such Person's
successors and assigns but, if applicable, only if such successors and
assigns are permitted by the Operative Documents;
(iii) reference to any gender includes each other gender;
(iv) reference to any agreement (including any Operative
Document), document or instrument means such agreement, document or
instrument as amended, supplemented or modified and in effect from
time to time in accordance with the terms thereof and, if applicable,
the terms of the other Operative Documents and reference to any
promissory note includes any promissory note which is an extension or
renewal thereof or a substitute or replacement therefor;
(v) reference to any Applicable Law or Requirement of Law
means such Applicable Law or Requirement of Law as amended, modified,
codified, replaced or reenacted, in whole or in part, and in effect
from time to time, including rules and regulations promulgated
thereunder and reference to any section or other provision of any
Applicable Law or Requirement of Law means that provision of such
Applicable Law from time to time in effect and constituting the
substantive amendment, modification, codification, replacement or
reenactment of such section or other provision;
(vi) reference in any Operative Document to any Article,
Section, Appendix, Schedule or Exhibit means such Article or Section
thereof or Appendix, Schedule or Exhibit thereto;
(vii) "hereunder", "hereof", "hereto" and words of similar
import shall be deemed references to an Operative Document as a whole
and not to any particular Article, Section, paragraph or other
provision of such Operative Document;
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(viii) "including" (and with correlative meaning "include")
means including without limiting the generality of any description
preceding such term;
(ix) "or" is not exclusive; and
(x) relative to the determination of any period of time,
"from" means "from and including" and "to" means "to but excluding".
N. Accounting Terms. In each Operative Document, unless expressly
otherwise provided, all terms of an accounting character used in the Operative
Documents shall be interpreted, all accounting determinations under the
Operative Documents shall be made, and all financial statements required to be
delivered under the Master Agreement shall be prepared, in accordance with
GAAP.
O. Conflict in Operative Documents. If there is any conflict between
any Operative Documents, each such Operative Document shall be interpreted and
construed, if possible, so as to avoid or minimize such conflict but, to the
extent (and only to the extent) of such conflict, the Master Agreement shall
prevail and control.
P. Legal Representation of the Parties. The Operative Documents were
negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring any Operative Document to
be construed or interpreted against any party shall not apply to any
construction or interpretation hereof or thereof.
Q. Defined Terms. Unless a clear contrary intention appears, terms
defined herein have the respective indicated meanings when used in each
Operative Document.
"A Loan" means the A Percentage of Fundings made pursuant to the Loan
Agreement and the Master Agreement.
"A Note" is defined in Section 2.2 of the Loan Agreement.
"A Percentage" means 85%.
"Address" means with respect to any Person, its address set forth in
Schedule 8.2 to the Master Agreement or such other address as it shall have
identified to the parties to the Master Agreement in writing in the manner
provided for the giving of notices thereunder.
"Advance" means a LIBOR Advance or a Base Rate Advance.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by, or under common control with, such
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, "control" (including
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79
with correlative meanings, the terms "controlling", "controlled by", and "under
common control with") as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person.
"After-Tax Basis" means (a) with respect to any payment to be received
by an Indemnitee (which, for purposes of this definition, shall include any Tax
Indemnitee), the amount of such payment supplemented by a further payment or
payments so that, after deducting from such payments the amount of all Taxes
(net of any current credits, deductions or other Tax benefits arising from the
payment by the Indemnitee of any amount, including Taxes, for which the payment
to be received is made) imposed currently on the Indemnitee by any Governmental
Authority or taxing authority with respect to such payments, the balance of
such payments shall be equal to the original payment to be received and (b)
with respect to any payment to be made by any Indemnitee, the amount of such
payment supplemented by a further payment or payments so that, after increasing
such payment by the amount of any current credits or other Tax benefits
realized by the Indemnitee under the laws of any Governmental Authority or
taxing authority resulting from the making of such payments, the sum of such
payments (net of such credits or benefits) shall be equal to the original
payment to be made; provided, however, for the purposes of this definition, and
for purposes of any payment to be made to either a Lessee or an Indemnitee on
an after-tax basis, it shall be assumed that (i) federal, state and local taxes
are payable at the highest combined marginal federal and state statutory income
tax rate (taking into account the deductibility of state income taxes for
federal income tax purposes) applicable to corporations from time to time and
(ii) such Indemnitee or such Lessee has sufficient income to utilize any
deductions, credits (other than foreign tax credits, the use of which shall be
determined on an actual basis) and other Tax benefits arising from any payments
described in clause (b) of this definition.
"Agent" means SunTrust Bank, a Georgia banking corporation, in its
capacity as agent under the Master Agreement and the Loan Agreement.
"Airgas Litigation" means the previously settled litigation known as
Airgas, Inc. et al. vs. Discount Auto Parts, Inc., et al., originally filed in
the United States District Court of Georgia, Savannah Division under Case No.
LV497-32.
"Alterations" means, with respect to any Leased Property, fixtures,
alterations, improvements, modifications and additions to such Leased Property.
"Applicable Law" means all applicable laws (including Environmental
Laws), rules, regulations (including proposed, temporary and final income tax
regulations), statutes, treaties, codes, ordinances, permits, certificates,
orders and licenses of and interpretations by, any Governmental Authority, and
applicable judgments, decrees, injunctions, writs, orders or like action of any
court, arbitrator or other administrative, judicial or quasi-judicial tribunal
or agency of competent jurisdiction (including those pertaining to health,
safety or the environment
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(including, without limitation, wetlands) and those pertaining to the
construction, use or occupancy of any Leased Property).
"Applicable Margin" means, with respect to LIBOR Advances:
The Applicable Margin shall be the number of basis points designated
below based on DAP's Consolidated Funded Debt to Total Capitalization
Ratio, measured quarterly:
CONSOLIDATED FUNDED DEBT TO TOTAL CAPITALIZATION RATIO
<25.0% >25.0% and <35.0% >35.0 % and <45.0% >45.0% and <50.0% >50%
- - - -
75.00 ▇▇ ▇▇.▇ ▇▇ ▇▇▇ ▇▇ 112.5 bp 137.5 bp
========== ================== =================== ================== ========
provided, however, that adjustments, if any, to the Applicable Margin
based on changes in DAP's Consolidated Funded Debt to Total
Capitalization Ratio as set forth above shall be calculated by the
Agent quarterly, based upon DAP's quarterly financial statements,
beginning with the DAP's statements for the period ended February 29,
2000, and shall become effective on the first day of the next
succeeding fiscal quarter following the date of such calculation;
provided, further, however, if DAP shall fail to deliver any such
quarterly financial statements within the time period required by
Section 5.7 of the Master Agreement, then the Applicable Margin for
LIBOR Advances shall be that shown above for a Consolidated Funded
Debt to Total Capitalization Ratio equal to or greater than 50%; it
being understood that if and when such quarterly financial statements
are subsequently delivered, then the Applicable Margin shall be
readjusted, effective upon and as of the date of such delivery, to
that number of basis points designated above based on DAP's
Consolidated Funded Debt to Total Capitalization Ratio as reflected in
such delivered quarterly financial statements.
"Appraisal" is defined in Section 3.1 of the Master Agreement.
"Appraiser" means an MAI appraiser reasonably satisfactory to the
Agent.
"Architect" means with respect to any Leased Property the architect
engaged in connection with the construction of the related Building, if any,
who may be an employee of the General Contractor for such Leased Property.
"Architect's Agreement" means, with respect to any Leased Property,
the architectural services agreement, if any, between the Construction Agent
(or a Lessee), in its capacity as agent for Lessor, and the related Architect.
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"Asset Value" means, with respect to any property or asset as of any
particular date, an amount equal to the greater of (i) the then book value of
such property or asset as established in accordance with GAAP, or (ii) the then
fair market value of such property or asset as determined in good faith by the
board of directors of DAP.
"Assignment and Assumption" means an assignment and assumption
agreement, substantially in the form of Exhibit F to the Master Agreement.
"Assignment of Lease and Rents" means, with respect to any Leased
Property, the Assignment of Lease and Rents, dated as of the related Closing
Date, from the Lessor to the Agent, substantially in the form of Exhibit B to
the Master Agreement.
"Authority" means a development or similar authority of any state,
county or municipality that is an issuer of Bonds.
"Award" means any award or payment received by or payable to the
Lessor or a Lessee on account of any Condemnation or Event of Taking (less the
actual costs, fees and expenses, including reasonable attorneys' fees, incurred
in the collection thereof, for which the Person incurring the same shall be
reimbursed from such award or payment).
"B Loan" means the B Percentage of Fundings made pursuant to the Loan
Agreement and the Master Agreement.
"B Note" is defined in Section 2.2 of the Loan Agreement.
"B Percentage" means 11.5%.
"Bankruptcy Code" means The Bankruptcy Code of 1978, as amended and in
effect from time to time (11 U.S.C. ss.101 et seq.).
"Base Rate" means (with any change in the Base Rate to be effective as
of the date of change of either of the following rates) the higher of (i) the
rate which the Agent publicly announces from time to time as its prime lending
rate, as in effect from time to time, and (ii) the Federal Funds Rate, as in
effect from time to time, plus one-half of one percent (0.50%) per annum. The
Agent's prime lending rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to customers; the Agent may
make commercial loans or other loans at rates of interest at, above or below
the Agent's prime lending rate. The Base Rate is determined daily.
"Base Rate Advance" means that portion of the Funded Amount bearing
interest at the Base Rate.
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"Base Term" means, with respect to any Leased Property, (a) the period
commencing on the related Closing Date and ending on May 30, 2005 or (b) such
shorter period as may result from earlier termination of the Lease as provided
therein.
"Basic Rent" means the rent payable pursuant to Section 3.1 of the
Lease, determined in accordance with the following: each installment of Basic
Rent payable on any Payment Date shall be in an amount equal to the sum of (A)
the aggregate amount of Lender Basic Rent payable on such Payment Date, plus
(B) the aggregate amount of Lessor Basic Rent payable on such Payment Date, in
each case for the Leased Property or Properties that are then subject to the
Lease.
"Board" means the Board of Governors of the Federal Reserve System and
any successor thereto or to the functions thereof.
"Board of Directors", with respect to a corporation, means either the
Board of Directors or any duly authorized committee of that Board which
pursuant to the by-laws of such corporation has the same authority as that
Board as to the matter at issue.
"Bond Purchase Contract" is defined in Section 2.6 of the Master
Agreement.
"Bond Trustee" is defined in Section 2.6 of the Master Agreement.
"Bonds" means industrial revenue or development bonds issued by a
state, county or municipal authority in connection with any Leased Property.
"Building" means, with respect to any Leased Property, the buildings,
structures and improvements located or to be located on the related Land, along
with all fixtures used or useful in connection with the operation of such
Leased Property, including, without limitation, all furnaces, boilers,
compressors, elevators, fittings, pipings, connectives, conduits, ducts,
partitions, equipment and apparatus of every kind and description now or
hereafter affixed or attached to the Building, equipment, if any, financed by
the Lessor and/or the Lenders and all Alterations (including all restorations,
repairs, replacements and rebuilding of such buildings, improvements and
structures) thereto (but in each case excluding trade fixtures and equipment
financed other than by the Lessor or the Lenders).
"Business Day" means any day other than a Saturday, Sunday or other
day on which banks are required or authorized to be closed for business in
Atlanta, Georgia or Orlando, Florida and, if the applicable Business Day
relates to a LIBOR Advance, on which trading is not carried on by and between
banks in the London interbank market.
"Capitalized Lease Obligations" means all lease obligations which have
been or are required to be, in accordance with generally accepted accounting
principles, capitalized on the books of the lessee.
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"Casualty" means an event of damage or casualty relating to all or
part of any Leased Property that does not constitute an Event of Loss.
"Change in Control Provision" means a provision set forth in any loan
agreement, credit agreement, indenture, receivables purchase agreement, lease
or other similar agreement that relates to, or is triggered by, a change in the
ownership of the stock of DAP or any change in the composition of the board of
directors or senior management of DAP.
"Claims" means liabilities, obligations, damages, losses, demands,
penalties, fines, claims, actions, suits, judgments, proceedings, settlements,
utility charges, costs, expenses and disbursements (including, without
limitation, reasonable legal fees and expenses) of any kind and nature
whatsoever.
"Closing Date" means with respect to each parcel of Land, the date on
which (i) such Land is acquired by the Lessor pursuant to a Purchase Agreement
or such Land is leased to the Lessor pursuant to a Ground Lease and (ii) the
initial Funding occurs with respect to such Land under the Master Agreement.
"Code" or "Tax Code" means the Internal Revenue Code of 1986, as
amended.
"Commitment" means as to each Funding Party, its obligation to make
Fundings as investments in each Leased Property, or to make Loans to the
Lessor, in an aggregate amount not to exceed at any one time outstanding the
amount set forth for such Funding Party on Schedule 2.2 to the Master Agreement
(as it may be adjusted from time to time pursuant to Section 6 of the Master
Agreement).
"Commitment Percentage" means as to any Funding Party, at a particular
time, the percentage of the aggregate Commitments in effect at such time
represented by such Funding Party's Commitment, as such percentage is shown for
such Funding Party on Schedule 2.2 to the Master Agreement (as it may be
adjusted from time to time pursuant to Section 6 of the Master Agreement).
"Completion Date" with respect to any Leased Property means the
Business Day on which the conditions specified in Section 3.5 of the Master
Agreement have been satisfied or waived with respect to such Leased Property.
"Condemnation" means any condemnation, requisition, confiscation,
seizure or other taking or sale of the use, occupancy or title to any Leased
Property or any part thereof in, by or on account of any actual eminent domain
proceeding or other action by any Governmental Authority or other Person under
the power of eminent domain or any transfer in lieu of or in anticipation
thereof, which in any case does not constitute an Event of Taking. A
Condemnation shall be deemed to have "occurred" on the earliest of the dates
that use is prevented or occupancy or title is taken.
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"Consolidated Companies" means, collectively, DAP and all of its
Wholly-Owned Subsidiaries.
"Consolidated EBIT" means, for any fiscal period of DAP, an amount
equal to the sum of its Consolidated Net Income (Loss), plus (i) Consolidated
Interest Expense and (ii) Consolidated Income Tax Expense, (iii) extraordinary
losses, (iv) loss from discontinued operations and (v) the cumulative effect of
changes in accounting principles, minus (y) extraordinary gains and (z) income
from discontinued operations.
"Consolidated EBITDAR" means, for any fiscal period of DAP, an amount
equal to the sum of its Consolidated Net Income (Loss), plus (i) Consolidated
Income Tax Expense, (ii) Consolidated Interest Expense, (iii) depreciation and
amortization, (iv) Consolidated Rental Expense, (v) income or loss from
discontinued operations, (vi) extraordinary losses or gains and (vii) the
cumulative effect of changes in accounting principles.
"Consolidated EBITR" means, for any fiscal period of DAP, an amount
equal to the sum of its Consolidated EBIT, plus Consolidated Rental Expense,
for such period.
"Consolidated Fixed Charges" means, for any fiscal period of DAP, an
amount equal to the sum of (i) Consolidated Interest Expense and (ii)
Consolidated Rental Expense.
"Consolidated Funded Debt" means, without duplication, all
Indebtedness for money borrowed, purchase money mortgages, Capitalized Lease
Obligations, amounts outstanding in respect of asset securitization vehicles,
conditional sales contracts and similar title retention debt instruments,
including any current maturities of such indebtedness, plus the net present
value of future operating lease payments (excluding payments relating to
synthetic leases) calculated using standard S&P methodology, plus the
redemption amount with respect to any redeemable preferred stock of DAP or any
Consolidated Subsidiaries required to be redeemed within the next twelve (12)
months. Consolidated Funded Debt shall also include any Consolidated Funded
Debt which has been guaranteed by DAP or any Consolidated Subsidiary or which
is supported by a letter of credit issued for the account of DAP or any
Consolidated Subsidiary.
"Consolidated Funded Debt to Total Capitalization Ratio" means the
ratio of Consolidated Funded Debt to Total Capitalization.
"Consolidated Interest Expense" means, for any fiscal period of DAP,
total interest expense (including without limitation, interest expense
attributable to Capitalized Lease Obligations) of DAP and its Consolidated
Subsidiaries on a consolidated basis.
"Consolidated Income Tax Expense" means, for any fiscal period of DAP,
the aggregate of (i) all taxes based upon or measured by the income of DAP and
its Consolidated Subsidiaries on a consolidated basis and (ii) franchise taxes
payable by DAP and its Consolidated Subsidiaries on a consolidated basis.
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"Consolidated Net Income (Loss)" means, for any fiscal period of DAP,
the consolidated net income (or loss) of DAP and its Consolidated Subsidiaries
for such period (taken as a single accounting period); provided that there
shall be excluded therefrom (i) any items of gain or loss, together with any
related provision for Taxes which were included in determining such
consolidated net income, resulting from the sale of assets other than in the
ordinary course of business; and (ii) the income (or loss) of any party accrued
prior to the date such party becomes a Consolidated Subsidiary of DAP or is
merged into or consolidated with DAP or any of its Consolidated Subsidiaries,
or such party's assets are acquired by DAP or any of its Consolidated
Subsidiaries.
"Consolidated Net Worth" means, for any period of determination, the
net worth of DAP and its Consolidated Subsidiaries on a consolidated basis.
"Consolidated Rental Expense" means for any fiscal period of DAP,
total rental expense and operating lease expense of DAP and its Consolidated
Subsidiaries on a consolidated basis.
"Consolidated Subsidiary" means, as at any particular time, any
corporation included as a Consolidated Subsidiary of DAP in DAP's most recent
financial statements furnished to its stockholders and certified by DAP's
independent public accountants.
"Construction" means, with respect to any Leased Property, the
construction of the related Building pursuant to the related Plans and
Specifications.
"Construction Agency Agreement" means the Construction Agency
Agreement, dated as of May 30, 2000, between DAP SUB and the Lessor.
"Construction Agency Event of Default" is defined in Section 5.1 of
the Construction Agency Agreement.
"Construction Agent" means DAP SUB in its capacity as construction
agent pursuant to the Construction Agency Agreement.
"Construction Budget" is defined in Section 2.4 of the Construction
Agency Agreement.
"Construction Conditions" means the conditions set forth in Section
3.5 of the Master Agreement.
"Construction Contract" means, with respect to any Leased Property,
that certain construction contract, if any, between a Lessee or the
Construction Agent, as agent for Lessor, and a General Contractor for the
Construction of the related Building, provided that such contract shall be
assigned to the Lessor, and such assignment shall be consented to by such
General Contractor, pursuant to an assignment of such construction contract
substantially in the form of the Security Agreement and Assignment set forth as
Exhibit C to the Master Agreement.
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"Construction Failure Payment" with respect to any Leased Property
means an amount equal to the sum of (i) 89.9% of the acquisition cost of the
related Land, plus (ii) 89.9% of the Construction costs (including development
and transaction costs, but excluding any upfront structuring fees) related to
such Leased Property that have been incurred through the date of payment, plus
(iii) any amounts owed with respect to such Leased Property pursuant to Section
3.3 of the Construction Agency Agreement or Section 7.2 or 7.5 of the Master
Agreement, plus (iv) the cost of tenant improvements that were not part of the
Construction Budget for such Leased Property.
"Construction Force Majeure Event" means, with respect to any Leased
Property:
(a) an act of God arising after the related Closing Date, or
(b) any change in any state or local law, regulation or other legal
requirement arising after such Closing Date and relating to the use of the Land
or the construction of a building on the Land, or
(c) strikes, lockouts, labor troubles, unavailability of materials,
riots, insurrections or other causes beyond a Lessee's control
which prevents the Construction Agent from arranging for completion of the
Construction prior to the Scheduled Construction Termination Date and which
could not have been avoided or which cannot be remedied by the Construction
Agent through the exercise of all commercially reasonable efforts or the
expenditure of funds and, in the case of (b) above, the existence or
potentiality of which was not known to and could not have been discovered prior
to such Closing Date through the exercise of reasonable due diligence by the
Construction Agent.
"Construction Land Interest" means each parcel of Land for which the
Completion Date has not yet occurred.
"Construction Term" means, with respect to any Leased Property, the
period commencing on the related Closing Date and ending on the related
Construction Term Expiration Date, or such shorter period as may result from
earlier termination of the Lease as provided therein.
"Construction Term Expiration Date" means, with respect to any Leased
Property, the earliest of the following:
(a) the related Completion Date,
(b) the date on which the aggregate Funded Amounts equal the
Commitments, and
(c) the related Scheduled Construction Termination Date.
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"Contractual Obligation", as applied to any Person, means any
provision of any securities issued by that Person or any indenture, mortgage,
deed of trust, contract, undertaking, agreement, instrument or other document
to which that Person is a party or by which it or any of its properties is
bound or to which it or any of its properties is subject (including, without
limitation, any restrictive covenant affecting any of the properties of such
Person).
"Contribution Agreement" means the Contribution Agreement, dated as of
May 30, 2000, among the Subsidiary Guarantors.
"Credit Party" means DAP, DAP SUB, each Lessee and each Subsidiary
Guarantor.
"DAP" means Discount Auto Parts, Inc., a Florida corporation.
"DAP SUB" means Discount Auto Parts Distribution Center, Inc., a
Mississippi corporation.
"Deed" means, with respect to any Land, a general warranty deed (or,
if the related Title Policy is acceptable to the related Lessee and the Agent,
a special, limited warranty or trustee's deed), dated the applicable Closing
Date, from the applicable Seller to the Lessor, conveying such Land.
"Default" means any of the events specified in Article XII of the
Lease, without giving effect to any requirement for the giving of notice, for
the lapse of time, or both, or for the happening of any other condition, event
or act.
"Dollars" and the sign "$" means lawful money of the United States of
America.
"Engineer" means, with respect to any Leased Property, the engineer
engaged in connection with the construction of the related Building, if any,
who may be an employee of the General Contractor for such Leased Property.
"Engineer's Agreement" means, with respect to any Leased Property the
engineering services agreement, if any, between the Construction Agent, in its
capacity as agent for Lessor, and the related Engineer.
"Environment" shall have the meaning set forth in 42 U.S.C. ss.9601(8)
as defined on the date of the Master Agreement, and "Environmental" means
pertaining or relating to the Environment.
"Environmental Audit" means, with respect to each parcel of Land, a
Phase I Environmental Assessment, dated no more than 90 days prior to the
related Closing Date, by an environmental services firm satisfactory to the
Funding Parties and DAP SUB.
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"Environmental Laws" means and include the Resource Conservation and
Recovery Act of 1976, (RCRA) 42 U.S.C. ▇▇.▇▇. 6901-6987, as amended by the
Hazardous and Solid Waste Amendments of 1984, the Comprehensive Environmental
Response, Compensation and Liability Act, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. ▇▇.▇▇. 9601-9657, (CERCLA), the
Hazardous Materials Transportation Act of 1975, 49 U.S.C. ▇▇.▇▇. 1801-1812, the
Toxic Substances Control Act, 15 U.S.C. ▇▇.▇▇. 2601-2671, the Clean Air Act, 42
U.S.C. ▇▇.▇▇. 7401 et seq., the Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. ▇▇.▇▇. 136 et seq., and all similar federal, state and local
environmental laws, ordinances, rules, orders, statutes, decrees, judgments,
injunctions, codes and regulations, and any other federal, state or local laws,
ordinances, rules, codes and regulations, relating to the environment, human
health or natural resources or the regulation or control of or imposing
liability or standards of conduct concerning human health, the environment,
Hazardous Materials or the clean-up or other remediation of any Leased Property,
or any part thereof, as any of the foregoing may have been from time to time
amended, supplemented or supplanted.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time or any successor federal statute, and the regulations
promulgated and rulings issued thereunder.
"ERISA Affiliate" means, as applied to DAP, any Person or trade or
business which is a member of a group which is under common control with DAP,
who together with DAP, is treated as a single employer within the meaning of
Section 414 (b),(c),(m) or (o) of the Code.
"Event of Default" means any event or condition designated as an "Event
of Default" in Article XII of the Lease.
"Event of Loss" is defined in Section 10.1 of the Lease.
"Event of Taking" is defined in Section 10.2 of the Lease.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute thereto.
"Executive Officer" means with respect to any Person, the Chief
Executive Officer, President, Vice Presidents (if elected by the Board of
Directors of such Person), Chief Financial Officer, Treasurer, Secretary and any
Person holding comparable offices or duties (if elected by the Board of
Directors of such Person).
"Fair Market Rental Value" means, with respect to any Leased Property,
the fair market rent as determined by an independent appraiser chosen by the
related Lessee and reasonably acceptable to the Lessor and the Agent (unless an
Event of Default has occurred and is continuing, in which case the appraiser
shall be chosen by the Agent) that would be obtained in an arm's-length lease
between an informed and willing lessee and an informed and willing
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lessor, in either case under no compulsion to lease, and neither of which is
related to or affiliated with the Lessor or any Lessee for the lease of such
Leased Property on the terms (other than the amount of Basic Rent) set forth, or
referred to, in the Lease. Such fair market rent shall be calculated as the
value for the use of such Leased Property to be leased in place at the Land,
assuming, in the determination of such fair market rental value, that such
Leased Property is in the condition and repair required to be maintained by the
terms of the Lease (unless such fair market rental value is being determined for
the purposes of Section 13.1 of the Lease and except as otherwise specifically
provided in the Lease, in which case this assumption shall not be made).
"Fair Market Sales Value" means, with respect to any Leased Property or
any portion thereof, the fair market sales value as determined by an independent
appraiser chosen by the related Lessee and reasonably acceptable to the Lessor
and the Agent (unless an Event of Default has occurred and is continuing, in
which case the appraiser shall be chosen by the Agent), that would be obtained
in an arm's-length transaction between an informed and willing buyer (other than
a lessee currently in possession) and an informed and willing seller, under no
compulsion, respectively, to buy or sell and neither of which is related to the
Lessor or any Lessee, for the purchase of such Leased Property. Such fair market
sales value shall be calculated as the value for such Leased Property, assuming,
in the determination of such fair market sales value, that such Leased Property
is in the condition and repair required to be maintained by the terms of the
Lease (unless such fair market sales value is being determined for purposes of
Section 13.1 of the Lease and except as otherwise specifically provided in the
Lease or the Master Agreement, in which case this assumption shall not be made).
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with member banks of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of Atlanta, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Final Rent Payment Date" with respect to any Leased Property is
defined in Section 13.1(e) of the Lease.
"Funded Amount" means, as to the Lessor, the Lessor's Invested Amounts,
and, as to each Lender, the outstanding principal amount of such Lender's Loans.
"Funding" means any funding by the Funding Parties pursuant to Section
2.2 of the Master Agreement.
"Funding Date" means each Closing Date and each other date on which a
Funding occurs under Section 2 of the Master Agreement.
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"Funding Parties" means the Lessor and the Lenders, collectively.
"Funding Party Balance" means, with respect to any Leased Property, (i)
for the Lessor as of any date of determination, an amount equal to the sum of
the outstanding related Lessor's Invested Amount, all accrued and unpaid Yield
on such outstanding related Lessor's Invested Amount, all unpaid related fees
owing to the Lessor under the Operative Documents, and all other related amounts
owing to the Lessor by the Lessees under the Operative Documents, and (ii) for
any Lender as of any date of determination, an amount equal to the sum of the
outstanding related Loans of such Lender, all accrued and unpaid interest
thereon, all unpaid related fees owing to such Lender under the Operative
Documents, and all other related amounts owing to such Lender by the Lessees
under the Operative Documents.
"Funding Request" is defined in Section 2.2 of the Master Agreement.
"Funding Termination Date" means the earlier of (i) May 30, 2003 and
(ii) the termination of the Commitments pursuant to Section 5.2 of the Loan
Agreement.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"General Partner" means Atlantic Financial Managers, Inc., a Texas
corporation.
"General Permitted Liens" means Liens permitted by Section 5.13 of the
Master Agreement.
"Governmental Action" means all permits, authorizations, registrations,
consents, approvals, waivers, exceptions, variances, orders, judgments, decrees,
licenses, exemptions, publications, filings, notices to and declarations of or
with, or required by, any Governmental Authority, or required by any Applicable
Law and shall include, without limitation, all citings, environmental and
operating permits and licenses that are required for the use, occupancy, zoning
and operation of any Leased Property.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Ground Lease" means, with respect to any Land, the ground lease
between the related Ground Lessor and the Lessor pursuant to which a leasehold
estate is conveyed in the Land to the Lessor.
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"Ground Lessor" means, as to any Land, the ground lessor of such Land.
"Guaranteed Indebtedness" means, as to any Person, any obligation of
such Person guaranteeing any indebtedness, lease, dividend, or other obligation
("primary obligation") of any other Person (the "primary obligor") in any manner
including, without limitation, any obligation or arrangement of such Person (a)
to purchase or repurchase any such primary obligation, (b) to advance or supply
funds (i) for the purchase or payment of any such primary obligation or (ii) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency or any balance sheet condition of the
primary obligor, (c) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation, or (d) to
indemnify the owner of such primary obligation against loss in respect thereof;
provided, however, that the guaranty of the Obligations by any Subsidiary shall
not be included within the meaning of the term "Guaranteed Indebtedness" for
purposes of the Master Agreement.
"Guarantor" means DAP.
"Guaranty Agreement" means the Guaranty Agreement, dated as of May 30,
2000, issued by DAP.
"Hazardous Material" or "Hazardous Substance" means any substance,
waste or material which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous, including
petroleum, crude oil or any fraction thereof, petroleum derivatives, by products
and other hydrocarbons, or which is or becomes regulated under any Environmental
Law by any Governmental Authority, including any agency, department, commission,
board or instrumentality of the United States, any jurisdiction in which a
Leased Property is located or any political subdivision thereof and also
including, without limitation, asbestos, urea formaldehyde foam insulation,
polychlorinated biphenyls ("PCBs") and radon gas.
"IDB Documentation" means the Bonds, each IDB Lease and all other
agreements, documents, contracts and instruments entered into in connection with
any Bonds or IDB Property.
"IDB Lease" means a lease between the Lessor and an Authority with
respect to a Leased Property.
"IDB Property" means each Leased Property that is the subject of Bonds.
"Incidental Contracts" means those contracts to which a Consolidated
Company is a party or by which its assets are bound, and as to which either (i)
the assets or services provided to the Consolidated Company under said contract
are not material or (ii) the assets or services so provided under said contract
are generic in nature and can readily be replaced on substantially
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comparable terms and the loss of said assets or services in either event would
not have a Material Adverse Effect.
"Indebtedness" of any Person means, without duplication (i) all
obligations of such Person which in accordance with GAAP would be shown on the
balance sheet of such Person as a liability (including, without limitation,
obligations for borrowed money and for the deferred purchase price of property
or services, and obligations evidenced by bonds, debentures, notes or other
similar instruments); (ii) all rental obligations under leases required to be
capitalized under GAAP; (iii) all Guaranteed Indebtedness of such Person
(including contingent reimbursement obligations under undrawn letters of
credit); (iv) Indebtedness of others secured by any Lien upon property owned by
such Person, whether or not assumed; and (v) obligations or other liabilities
under currency contracts, interest rate hedging contracts, or similar agreements
or combinations thereof.
"Indemnitee" means SunTrust Bank, in its individual capacity and in its
capacity as Agent, and each Lender (but, in each case, only, with respect to any
Leased Property, from and after the Completion Date for such Leased Property),
and the Lessor, and their respective Affiliates, successors, permitted assigns,
permitted transferees, employees, officers, directors and agents; provided,
however, that in no event shall any Lessee be an Indemnitee.
"Indemnitee Group" means the respective Affiliates, employees,
officers, directors and agents of the Agent (in its individual capacity), each
Lender or the Lessor, as applicable; provided, however, that in no event shall
any Lessee be a member of the Indemnitee Group.
"Initial Closing Date" means the Closing Date for the first Leased
Property acquired by the Lessor.
"Intercompany Loans" means, collectively, (i) the loans more
particularly described on Schedule 4.1(u) to the Master Agreement and (ii) those
loans or other extensions of credit made by any Consolidated Company to another
Consolidated Company.
"Investment" means, when used with respect to any Person, any direct or
indirect advance, loan or other extension of credit (other than the creation of
receivables in the ordinary course of business) or capital contribution by such
Person (by means of transfers of property to others or payments for property or
services for the account or use of others, or otherwise) to any Person, or any
direct or indirect purchase or other acquisition by such Person of, or of a
beneficial interest in, capital stock, partnership interests, bonds, notes,
debentures or other securities issued by any other Person.
"Joinder Agreement" means an agreement substantially in the form of
Exhibit E to the Master Agreement pursuant to which a Subsidiary of DAP shall
become a Lessee.
"Land" means the land described in the related Lease Supplement.
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"Laws" means all ordinances, statutes, rules, regulations, orders,
injunctions, writs, treaties or decrees of any Governmental Authority, or of any
court or similar entity established by any thereof.
"Lease" means the Master Lease Agreement, dated as of May 30, 2000
together with each Lease Supplement thereto, among the Lessees and the Lessor.
"Lease Balance" means, with respect to all of the Leased Properties, as
of any date of determination, an amount equal to the aggregate sum of the
outstanding Funded Amounts of all Funding Parties, all accrued and unpaid
interest on the Loans, all accrued and unpaid Yield on the Lessor's Invested
Amounts, all unpaid fees owing to the Funding Parties under the Operative
Documents, including all other amounts owing to the Funding Parties by the
Lessees under the Operative Documents.
"Lease Supplement" means a supplement to the Lease substantially in the
form of Exhibit A thereto.
"Lease Term" means (a) the Base Term, as it may be renewed pursuant to
Section 14.9 of the Lease or (b) such shorter period as may result from earlier
termination of the Lease as provided therein.
"Lease Termination Date" means the last day of the Lease Term.
"Leased Property" means Land and the related Building(s). For purposes
of the Lease, "Leased Property" means the Land identified in a Lease Supplement
and the Buildings related thereto, unless the context provides otherwise.
"Leased Property" shall not include any inventory of any Lessee.
"Leased Property Balance" means, with respect to any Leased Property,
as of any date of determination, an amount equal to the aggregate sum of the
outstanding related Funded Amounts of all Funding Parties, all accrued and
unpaid interest on the related Loans, all accrued and unpaid Yield on the
related Lessor Invested Amounts, all related unpaid fees owing to the Funding
Parties under the Operative Documents, and all other amounts owing to the
Funding Parties by any Lessee under the Operative Documents with respect to such
Leased Property.
"Lender Basic Rent" means, for any Rent Period under the Lease, the
aggregate amount of interest accrued on the Loans pursuant to Section 2.4 of the
Loan Agreement during such Rent Period.
"Lenders" means such financial institutions as are, or who may
hereafter become, parties to the Loan Agreement as Lenders to the Lessor.
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"Lending Office" for each Lender means the office such Lender
designates in writing from time to time to DAP SUB and the Agent.
"Lessee" is defined in the preamble to the Master Agreement. The
"related" Lessee with respect to any Leased Property means the Lessee that is
party to the Lease Supplement for such Leased Property.
"Lessor" is defined in the preamble to the Master Agreement.
"Lessor Basic Rent" means, for any Rent Period under the Lease, the
aggregate amount of Yield accrued and unpaid on the Lessor's Invested Amounts
pursuant to Section 2.3(a) of the Master Agreement during such Rent Period.
"Lessor Liens" means Liens on or against any Leased Property, the
Lease, any other Operative Document or any payment of Rent (a) which result from
any act or omission of, or any Claim against, the Lessor unrelated to the
Transaction or from Lessor's failure to perform as required under the Operative
Documents or (b) which result from any Tax owed by the Lessor, except any Tax
for which a Lessee or DAP is obligated to indemnify (including, without
limitation, in the foregoing exception, any assessments with respect to any
Leased Property noted on the related Title Policy or assessed in connection with
any construction or development by a Lessee or the Construction Agent).
"Lessor Rate" is defined in the Lessor Side Letter.
"Lessor Side Letter" means the letter agreement, dated as of May 30,
2000, between DAP and the Lessor.
"Lessor's Invested Amount" means the amounts funded by the Lessor
pursuant to Section 2 of the Master Agreement that are not proceeds of Loans by
a Lender, as such amount may be increased during the related Construction Term
pursuant to Section 2.3(c) of the Master Agreement.
"LIBOR" means, for any Rent Period, with respect to LIBOR Advances the
offered rate for deposits in U.S. Dollars, for a period comparable to the Rent
Period, appearing on the Reuters Screen LIBOR Page as of 11:00 A.M. (London,
England time) on the day that is two London banking days prior to the first day
of the Rent Period. If at least two such rates appear on the Reuters Screen
LIBOR Page, the rate for that Rent Period shall be the arithmetic mean of such
rates, rounded, if necessary, to the next higher 1/16 of 1.0%; and in either
case as such rates may be adjusted for any applicable reserve requirements. If
the foregoing rate is unavailable from the Reuters Screen for any reason, then
such rate shall be determined by the Agent from Telerate or, if such rate is
also unavailable on such service, then on any other interest rate reporting
service of recognized standing designated in writing by the Agent to DAP SUB and
the Lenders; in any such case rounded, if necessary, to the next higher 1/16 of
1.0%, if the rate is not such a multiple.
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"LIBOR Advance" means that portion of the Funded Amount bearing
interest at a rate based on LIBOR.
"Lien" means, with respect to any asset, any mortgage, deed to secure
debt, deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of indebtedness, whether by
consensual agreement or by operation of statute or other law, or by any
agreement, contingent or otherwise, to provide any of the foregoing.
"Loan" shall have the meaning specified in Section 2.1 of the Loan
Agreement.
"Loan Agreement" means the Loan Agreement, dated as of May 30, 2000,
among the Lessor, the Agent and the Lenders.
"Loan Documents" means the Loan Agreement, the Notes, the Assignments
of Lease and Rents, the Mortgages and all documents and instruments executed and
delivered in connection with each of the foregoing.
"Loan Event of Default" means any of the events specified in Section
5.1 of the Loan Agreement, provided that any requirement for the giving of
notice, the lapse of time, or both, or any other condition, event or act has
been satisfied.
"Loan Potential Event of Default" means any event, condition or failure
which, with notice or lapse of time or both, would become a Loan Event of
Default.
"Loss Proceeds" is defined in Section 10.6 of the Lease.
"Margin Regulations" means Regulations T, U and X of the Board of
Governors of the Federal Reserve System, as the same may be in effect from time
to time.
"Margin Stock" means "margin stock" as defined in Regulation T, U or X.
"Master Agreement" means the Master Agreement, dated as of May 30,
2000, among DAP, the Lessees, the Lessor, the Agent and the Lenders.
"Material Adverse Effect" means with respect to any event or occurrence
of whatever nature (including any adverse determination in any litigation,
arbitration or governmental investigation or proceeding), (i) a materially
adverse effect on the ability of Guarantor or any Lessee to perform its
obligations under any Operative Document, (ii) a materially adverse effect on
the financial condition, operations, business, prospects or assets of DAP and
its subsidiaries, taken as a whole, (iii) a materially adverse effect on the
value or useful life of any Leased Property, or the legality, validity or
enforceability of any of the Operative Documents or (iv) a
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materially adverse effect on the status or priority of the Agent's or any
Funding Party's interest in any Leased Property.
"MBFC" is defined in Section 2.6 of the Master Agreement.
"Mississippi Bonds" means the Bonds issued pursuant to the Trust
Indenture.
"Mississippi Property" means the Leased Property located in Copiah
County, Mississippi.
"Monthly Payment Date" means the fifteenth (15th) day of each calendar
month or, if such day is not a Business Day, the next Business Day.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means, with respect to any Leased Property, that certain
mortgage, deed of trust or security deed, dated as of the related Closing Date,
by the Lessor to the Agent, in the form of Exhibit D-1 or D-2 attached to the
Master Agreement, with such modifications as are satisfactory to the Lessor and
the Agent in conformity with Applicable Law to assure customary remedies in
favor of the Agent in the jurisdiction where the Leased Property is located.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Notes" means the A Note and the B Note issued by the Lessor under the
Loan Agreement, and any and all notes issued in replacement or exchange therefor
in accordance with the provisions thereof.
"Obligations" means all indebtedness (whether principal, interest, fees
or otherwise), obligations and liabilities of the Guarantor and each Lessee to
the Funding Parties (including without limitation all extensions, renewals,
modifications, rearrangements, restructures, replacements and refinancings
thereof, whether or not the same involve modifications to interest rates or
other payment terms of such indebtedness, obligations and liabilities), whether
arising under any of the Operative Documents or otherwise, and whether now
existing or hereafter created, absolute or contingent, direct or indirect, joint
or several, secured or unsecured, due or not due, contractual or tortious,
liquidated or unliquidated, arising by operation of law or otherwise, or
acquired by Funding Parties outright, conditionally or as collateral security
from another, including but not limited to the obligation of the Guarantor and
each Lessee to repay future advances by the Funding Parties, whether or not made
pursuant to commitment and whether or not presently contemplated by the
Guarantor or any Lessee and the Funding Parties under the Operative Documents.
"Obligors" means the Guarantor, the Subsidiary Guarantors and the
Lessees, collectively.
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"Officer's Certificate" of a Person means a certificate signed by the
Chairman of the Board or the President or the Chief Financial Officer or any
Executive Vice President or any Senior Vice President or any other Vice
President or the Treasurer or any Assistant Treasurer or the Controller or any
Assistant Controller or the Secretary of such Person.
"Operative Documents" means the Master Agreement, the Purchase
Agreements, the Deeds, the Lease, the Security Agreement and Assignment, the
Notes, the Loan Agreement, the Guaranty Agreement, the Assignments of Lease and
Rents, the Mortgages, the Ground Leases, the Construction Agency Agreement, the
Joinder Agreements, the Contribution Agreement, the Subsidiary Guaranty and the
other documents delivered in connection with the transactions contemplated by
the Master Agreement.
"Overdue Rate" means the lesser of (a) the highest interest rate
permitted by Applicable Law and (b) an interest rate per annum (calculated on
the basis of a 365-day (or 366-day, if appropriate) year equal to 2.0% above the
Base Rate in effect from time to time or, in the case of Yield, 2% above the
Lessor Rate.
"Partial Purchase Option" is defined in Section 14.1(b) of the Lease.
"Partnership Agreement" means the Agreement of Limited Partnership of
AFG, dated as of February 28, 1996, among the General Partner and the persons
listed on Schedule A thereto as limited partners.
"Payment Date" means the last day of each Rent Period (and if such Rent
Period is longer than three months, the day that is 90 days after the first day
of such Rent Period) or, if such day is not a Business Day, the next Business
Day.
"Payment Date Notice" is defined in Section 2.3(d) of the Master
Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation, and any
successor thereto.
"Permitted Liens" means the following with respect to any Leased
Property: (a) the respective rights and interest of the related Lessee, the
Lessor, the Agent and any Lender, as provided in the Operative Documents, (b)
Liens for Taxes either not yet due or being contested in good faith and by
appropriate proceedings, so long as enforcement thereof is stayed pending such
proceedings, (c) materialmen's, mechanics', workers', repairmen's, employees' or
other like Liens arising after the related Closing Date in the ordinary course
of business for amounts either not yet due or being contested in good faith and
by appropriate proceedings, so long as enforcement thereof is stayed pending
such proceedings, (d) Liens arising after such Closing Date out of judgments or
awards with respect to which at the time an appeal or proceeding for review is
being prosecuted in good faith, so long as the enforcement thereof has been
stayed pending such appeal or review, (e) easements, rights of way,
reservations, servitudes and rights of others against the Land which do not
materially and adversely affect the value or the utility of
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such Leased Property, (f) other Liens incidental to the conduct of the related
Lessee's business which were not incurred in connection with the borrowing of
money or the obtaining of advances or credit and which do not in the aggregate
materially detract from the value of such Leased Property or materially impair
the use thereof, (g) assignments and subleases expressly permitted by the
Operative Documents, (h) Liens in favor of municipalities agreed to by the
related Lessee that do not affect the value or utility of the related Leased
Property and (i) Liens created by IDB Documentation.
"Person" means an individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
nonincorporated organization or government or any agency or political
subdivision thereof.
"Plan" means any employee benefit plan, program, arrangement, practice
or contract, maintained by or on behalf of DAP or an ERISA Affiliate, which
provides benefits or deferred compensation to or on behalf of employees or
former employees, whether formal or informal, whether or not written, including
but not limited to the following types of plans:
(i) Executive Arrangements - any bonus, incentive
compensation, stock option, deferred compensation, commission,
severance, "golden parachute", "rabbi trust," or other executive
compensation plan, program, contract, arrangement or practice;
(ii) ERISA Plans - any "employee benefit plan" as defined in
Section 3(3) of ERISA), including, but not limited to, any defined
benefit pension plan, profit sharing plan, money purchase pension plan,
savings or thrift plan, stock bonus plan, employee stock ownership
plan, Multiemployer Plan, or any plan, fund, program, arrangement or
practice providing for welfare benefits, medical (including
post-retirement medical), hospitalization, accident, sickness,
disability, or life insurance benefits; and
(iii) Other Employee Fringe Benefits - any stock purchase,
vacation, scholarship, day care, prepaid legal services, severance pay
or other fringe benefit plan, program, arrangement, contract or
practice.
"Plans and Specifications" means with respect to any Building the final
plans and specifications for such Building prepared by the Architect, and, if
applicable, referred to by the Appraiser in the Appraisal, as such Plans and
Specifications may be hereafter amended, supplemented or otherwise modified from
time to time.
"Potential Event of Default" means any event, condition or failure
which, with notice or lapse of time or both, would become an Event of Default.
"Purchase Agreement" means with respect to any Land, the purchase
agreement with the Seller for the conveyance of such Land to the Lessor.
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"Purchase Option" is defined in Section 14.1(a) of the Lease.
"Rate Management Transaction" means any transaction (including any
agreement with respect thereto) now existing or hereafter entered into between
DAP and any Lender which is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap, equity or equity
index option, bond option, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.
"Recourse Deficiency Amount" means, as of any date of determination
thereof, the sum of (i) the aggregate principal amount of the A Loans then
outstanding, plus (ii) all accrued and unpaid interest on the A Loans.
"Release" means the release, deposit, disposal or leak of any Hazardous
Material into or upon or under any land or water or air, or otherwise into the
environment, including, without limitation, by means of burial, disposal,
discharge, emission, injection, spillage, leakage, seepage, leaching, dumping,
pumping, pouring, escaping, emptying, placement and the like.
"Release Date" means, with respect to any Leased Property, the earlier
of (i) the date that the Lease Balance has been paid in full, and (ii) the date
on which the Agent gives notice to the Lessor that the Lenders release any and
all interest they may have in such Leased Property, and all proceeds thereof,
and any rights to direct, consent or deny consent to any action by the Lessor
with respect to such Leased Property.
"Remarketing Option" is defined in Section 14.6 of the Lease.
"Rent" means Basic Rent and Supplemental Rent, collectively.
"Rent Period" means (i) in the case of Base Rate Advances, means the
period from, and including, a Monthly Payment Date (or the date of the borrowing
or conversion of such Base Rate Advance, if such date is other than a Monthly
Payment Date) to, but excluding, the next succeeding Monthly Payment Date; and
(ii) with respect to any LIBOR Advance:
(1) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
LIBOR Advance and ending one, two, three or six months
thereafter, as selected by DAP SUB in its Funding Notice or
Payment Date Notice, as the case may be, given with respect
thereto; and
(2) thereafter, each period commencing on the last day of the next
preceding Rent Period applicable to such LIBOR Advance and
ending one, two, three or six
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months thereafter, as selected by DAP SUB by irrevocable
notice to the Agent in its related Payment Date Notice;
provided, however that:
(a) The initial Rent Period for any Funding shall commence on the
Funding Date of such Funding and each Rent Period occurring thereafter in
respect of such Funding shall commence on the day on which the next preceding
Rent Period expires;
(b) If any Rent Period would otherwise expire on a day which is not a
Business Day, such Rent Period shall expire on the next succeeding Business Day,
provided that if any Rent Period in respect of LIBOR Advances would otherwise
expire on a day that is not a Business Day but is a day of the month after which
no further Business Day occurs in such month, such Rent Period shall expire on
the next preceding Business Day;
(c) Any Rent Period in respect of LIBOR Advances which begins on a day
for which there is no numerically corresponding day in the calendar month at the
end of such Rent Period shall, subject to paragraph (d) below, expire on the
last Business Day of such calendar month;
(d) No Rent Period shall extend beyond the Lease Termination Date; and
(e) At any one time, there shall be no more than six (6) Rent Periods;
"Report" is defined in Section 7.6 of the Master Agreement.
"Reportable Event" has the meaning set forth in Act Section 4043(b) of
ERISA, but shall not include a Reportable Event as to which the provision for
thirty days' notice to the PBGC is waived under applicable regulations.
"Required Funding Parties" means, at any time, Funding Parties holding
an aggregate outstanding principal amount of Funded Amounts equal to at least
66-2/3% of the aggregate outstanding principal amount of all Funded Amounts.
"Required Lenders" means, at any time, Funding Parties holding an
aggregate outstanding principal amount of Loans equal to at least 66-2/3% of the
aggregate outstanding principal amount of all Loans.
"Requirement of Law" for any Person means the articles or certificate
of incorporation and bylaws or other organizational or governing documents of
such Person, and any law, treaty,
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rule or regulation, or determination of an arbitrator or a court or other
governmental authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"Reuters Screen" means, when used in connection with any designated
page and LIBOR, the display page so designated on the Reuters Monitor Money
Rates Service (or such other page as may replace that page on that service for
the purpose of displaying rates comparable to LIBOR).
"Revolving Credit Agreement" means the Revolving Credit Agreement,
dated as of July 29, 1999, among DAP, SunTrust Bank (as successor to SunTrust
Bank, Central Florida, National Association), individually and as Administrative
Agent, SunTrust Equitable Securities Corporation, as Arranger and Book Manager,
Bank of America, N.A., individually and as Syndication Agent, The First National
Bank of Chicago, individually and as Documentation Agent, and the other lenders
party thereto.
"Scheduled Construction Termination Date" means with respect to any
Building twenty (20) months after the Closing Date for the related Land.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Security Agreement and Assignment" means, with respect to any Leased
Property, the Security Agreement and Assignment (Construction Contract,
Architect's Agreement, Permits, Licenses and Governmental Approvals, and Plans,
Specifications and Drawings) from the Construction Agent to the Lessor,
substantially in the form of Exhibit C to the Master Agreement.
"Seller" with respect to any Leased Property means the Person who
transfers such Leased Property to Lessor.
"Senior Management" means with respect to any Person the Chief
Executive Officer, the President, the Executive Vice Presidents and the Chief
Financial Officer and any Person holding comparable offices or duties.
"Solvent" means, with respect to any Person as of any date, that on
such date(i) the fair value of the property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (ii) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become matured, (iii)
such Person is able to realize upon its
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assets and pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (iv) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature, and (v) such Person is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which such Person's
property would constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in which such Person is
engaged. In computing the amount of contingent liabilities at anytime, it is
intended that such liabilities will be computed at the amount which, in light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
"Stockholders' Equity" means, with respect to any Person as at any date
of determination, the stockholders' equity of such Person, determined on a
consolidated basis.
"Subordinated Debt" means Indebtedness of DAP and its Subsidiaries
subordinated to all obligations of DAP and its Subsidiaries or any other Credit
Party arising under the Operative Documents on terms and conditions satisfactory
in all respects to the Agent and the Required Lenders, including without
limitation, with respect to interest rates, payment terms, maturities,
amortization schedules, covenants, defaults, remedies, and subordination
provisions, as evidenced by the written approval of the Agent and Required
Lenders.
"Subsidiary" means any corporation, association, partnership, trust, or
other business entity of which the designated parent shall at any time own
directly or indirectly through a Subsidiary or Subsidiaries at least a majority
(by number of votes or controlling interests) of the outstanding Voting
Interests.
"Subsidiary Guarantors" means the Subsidiaries of DAP that are party to
the Subsidiary Guaranty.
"Subsidiary Guaranty" means the Subsidiary Guaranty, dated as of May
30, 2000, issued by the Subsidiary Guarantors.
"Supplemental Rent" means any and all amounts, liabilities and
obligations other than Basic Rent which any Lessee assumes or agrees or is
otherwise obligated to pay under the Lease or any other Operative Document
(whether or not designated as Supplemental Rent) to the Lessor, the Agent, any
Lender or any other party, including, without limitation, amounts under Article
XVI of the Lease, and indemnities and damages for breach of any covenants,
representations, warranties or agreements, and all overdue or late payment
charges in respect of any Funded Amount.
"Tax Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time.
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"Tax Indemnitee" means, with respect to each Leased Property, (i) so
long as such Leased Property is a Construction Land Interest, the Lessor and its
Affiliates, successors, permitted assigns, permitted transferees, employees,
officers, directors and agents and (ii) from and after the Completion Date for
such Leased Property, the Lessor, SunTrust Bank, in its individual capacity and
in its capacity as Agent, each Lender and their respective Affiliates,
successors, permitted assigns, permitted transferees, employees, officers,
directors and agents; provided, however, that in no event shall any Lessee be a
Tax Indemnitee.
"Taxes" means any present or future taxes, levies, imposts, duties,
fees, assessments, deductions, withholdings or other charges of whatever nature,
including without limitation, income, receipts, excise, property, sales,
transfer, license, payroll, withholding, social security and franchise taxes now
or hereafter imposed or levied by the United States, or any state, local or
foreign government or by any department, agency or other political subdivision
or taxing authority thereof or therein and all interest, penalties, additions to
tax and similar liabilities with respect thereto.
"Telerate" means, when used in connection with any designated page and
LIBOR, the display page so designated on the Dow ▇▇▇▇▇ Telerate Service (or such
other page as may replace that page on that service for the purpose of
displaying rates comparable to LIBOR).
"Termination Event" means (a) a Reportable Event; (b) the filing of a
notice of intent to terminate a Plan or the treatment of a Plan amendment as a
termination under Act Section 4041 of ERISA or (c) the institution of
proceedings to terminate a Plan by the PBGC under Act Section 4042 of ERISA or
the appointment of a trustee to administer any Plan.
"Title Insurance Company" means the company that has or will issue the
title policies with respect to a Leased Property, which company shall be
reasonably acceptable to the Funding Parties.
"Title Policy" is defined in Section 3.1 of the Master Agreement.
"Total Capitalization" means the sum of Consolidated Funded Debt and
Stockholders' Equity.
"Transaction" means all the transactions and activities referred to in
or contemplated by the Operative Documents.
"Trust Indenture" is defined in Section 2.6 of the Master Agreement.
"UCC" means the Uniform Commercial Code of Georgia, as in effect from
time to time.
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"Wholly-Owned Subsidiary" means any Subsidiary, all of the stock of
every class of which, except directors' qualifying shares, shall, at the time as
of which any determination is being made, be owned by DAP either directly or
through Wholly-Owned Subsidiaries.
"Withholding Taxes" is defined in Section 7.5(f) of the Master
Agreement.
"Yield" is defined in Section 2.3 of the Master Agreement.
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