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EXECUTION COPY
REIMBURSEMENT AGREEMENT
Dated as of April 1, 1998
by and among
MERRY LAND & INVESTMENT COMPANY, INC.,
as Borrower,
THE FINANCIAL INSTITUTIONS PARTY HERETO
AND THEIR ASSIGNEES UNDER SECTION 10.5.(c),
as Lenders,
and
FIRST UNION NATIONAL BANK,
as Agent
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THIS REIMBURSEMENT AGREEMENT dated as of April 1, 1998 by and among
MERRY LAND & INVESTMENT COMPANY, INC., a corporation organized under the
laws of the State of Georgia (the "Borrower"), each of the financial
institutions initially a signatory hereto together with their assignees
pursuant to Section 10.5.(c) (the "Lenders") and FIRST UNION NATIONAL BANK,
as Agent (the "Agent").
WHEREAS, the Agent and the Lenders desire to make available to the
Borrower a letter of credit facility on the terms and conditions contained
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the
parties hereto agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1. DEFINITIONS.
In addition to terms defined elsewhere herein, the following terms
shall have the following meanings for the purposes of this Agreement:
"ACCESSION AGREEMENT" means an Accession Agreement substantially in
the form of Annex I to the Guaranty.
"ACQUISITION" means the acquisition by the Borrower, indirectly
through certain Subsidiaries, of all of the partnership interest of the
Target Partnerships from Xxxxxxxx Xxxx Residential Company pursuant to the
Acquisition Agreement.
"ACQUISITION AGREEMENT" means that certain Contribution Agreement
dated February 23, 1998 by and among Borrower, Merry Land DownREIT I LP and
certain affiliates of Xxxxxxxx Xxxx Residential Company.
"ACQUISITION DOCUMENT" means the Acquisition Agreement and any other
document, instrument or agreement executed and delivered by any Person in
connection with the Acquisition Agreement or the Acquisition.
"ADDITIONAL COSTS" has the meaning given that term in Section 4.1.
"AFFILIATE" means any Person (other than the Agent or any Lender):
(a) directly or indirectly controlling, controlled by, or under common
control with, the Borrower; (b) directly or indirectly owning or holding
five percent (5.0%) or more of any equity interest in the Borrower; or
(c) five percent (5.0%) or more of whose voting stock or other equity
interest is directly or indirectly owned or held by the Borrower. For
purposes of this definition, "control" (including with correlative
meanings, the terms "controlling", "controlled by" and "under common
control with") means the possession directly or indirectly of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities or by contract or
otherwise.
"AGENT" means First Union National Bank, in its capacity as
contractual representative of the Lenders under the terms of this
Agreement, and any of its successors.
"AGREEMENT DATE" means the date as of which this Agreement is dated.
"APPLICABLE LAW" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all governmental bodies and all
orders and decrees of all courts, tribunals and arbitrators.
"ASSIGNEE" has the meaning given that term in Section 10.5.(c).
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an Assignment and
Acceptance Agreement among a Lender, an Assignee and the Agent,
substantially in the form of Exhibit A or such other form as may be agreed
to by such Lender, such Assignee and the Agent.
"BANK BONDS" means any Bonds acquired or held by or for the benefit of
the Issuer of such Bonds, the applicable Target Partnership, the Borrower,
any general partner of such Target Partnership or any guarantor of the
obligations of such Target Partnership under the "Loan Agreement" relating
to such Bonds, this Agreement or any Confirming Bank Reimbursement
Agreement.
"BASE RATE" means the per annum rate of interest equal to the greater
of (a) the Prime Rate or (b) the Federal Funds Rate plus one-half of one
percent (0.5%). Any change in the Base Rate resulting from a change in the
Prime Rate or the Federal Funds Rate shall become effective as of 12:01
a.m. on the Business Day on which each such change occurs. The Base Rate
is a reference rate used by the Agent in determining interest rates on
certain loans and is not intended to be the lowest rate of interest charged
by the Agent or any Lender on any extension of credit to any debtor.
"BONDS" means each of the bonds described in Schedule 1.1.(a) attached
hereto.
"BOND DOCUMENTS" means, with respect to a given issue of Bonds, such
Bonds, the Indenture relating thereto, and all other documents, instruments
or agreements entered into by any Target Partnership, the Borrower, any
other Subsidiary of the Borrower, the Trustee under such Indenture, the
Issuer of such Bonds, the Remarketing Agent for such Bonds or any other
Person, in each case, in connection with such Bonds.
"BORROWER" has the meaning set forth in the introductory paragraph
hereof and shall include the Borrower's successors and assigns.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which banks in Charlotte, North Carolina are authorized or required
to close.
"CASH EQUIVALENTS" means: (a) securities issued, guaranteed or insured
by the United States of America or any of its agencies with maturities of
not more than one year from the date acquired; (b) certificates of deposit
with maturities of not more than one year from the date acquired issued by
a United States federal or state chartered commercial bank of recognized
standing, which has capital and unimpaired surplus in excess of
$500,000,000.00 and which bank or its holding company has a short-term
commercial paper rating of at least A-2 or the equivalent by Standard &
Poor's Rating Group, a division of XxXxxx-Xxxx, Inc. ("S&P"), or at least
P-2 or the equivalent by Xxxxx'x Investors Services, Inc. ("Moody's");
(c) reverse repurchase agreements with terms of not more than seven days
from the date acquired, for securities of the type described in clause (a)
above and entered into only with commercial banks having the qualifications
described in clause (b) above; (d) commercial paper issued by any Person
incorporated under the laws of the United States of America or any State
thereof and rated at least A-2 or the equivalent thereof by S&P or at least
P-2 or the equivalent thereof by Moody's, in each case with maturities of
not more than one year from the date acquired; and (e) investments in money
market funds registered under the Investment Company Act of 1940, which
have net assets of at least $500,000,000.00 and at least 85% of whose
assets consist of securities and other obligations of the type described in
clauses (a) through (d) above.
"COLLATERAL" means any real or personal property securing any of the
Obligations, including without limitation, all "Pledged Collateral" as
defined in the Pledge Agreement and real property subject to the lien of
any Collateral Document.
"COLLATERAL ACCOUNT" means a special non-interest bearing deposit
account maintained at the Principal Office of the Agent and under its sole
dominion and control.
"COLLATERAL DOCUMENTS" means the Pledge Agreement and all other
security agreements, financing statements, and other loan and collateral
documents creating, evidencing and perfecting the Agent's Liens in any of
the Collateral.
"COMMITMENT" means, as to each Lender, such Lender's obligation to
issue (in the case of the Agent only) or participate in (in the case of all
of the other Lenders) Letters of Credit pursuant to Section 2.1.(a) and
2.1.(f) respectively, in an amount up to, but not exceeding (but in the
case of the Agent excluding the aggregate amount of participations in the
Letters of Credit held by other Lenders), the amount set forth for such
Lender on its signature page hereto as such Lender's "Commitment Amount" or
as set forth in the applicable Assignment and Acceptance Agreement, as the
same may be changed from time to time as appropriate to reflect any
assignments to or by such Lender effected in accordance with Section 10.5.
"COMMITMENT PERCENTAGE" means, as to each Lender, the ratio, expressed
as a percentage, of (a) the amount of such Lender's Commitment to (b) the
sum of (i) the aggregate amount of the Commitments of all Lenders
hereunder; provided, however, that if at the time of determination the
Commitments have terminated or been reduced to zero, the "Commitment
Percentage" of each Lender shall be the Commitment Percentage of such
Lender in effect immediately prior to such termination or reduction.
"CONFIRMING BANK" means any financial institution that has issued a
Confirming Bank Letter of Credit. Initially, the only Confirming Bank is
Barclays Bank, PLC, New York Branch.
"CONFIRMING BANK LETTER OF CREDIT" means a letter of credit, guaranty,
confirmation or other similar type of security or credit enhancement issued
by a Confirming Bank in support of the payment of the principal of, or
interest or premium, if any, on, any issue of Bonds (or the Letter of
Credit issued in support of such payments on any issue of Bonds).
"CONFIRMING BANK REIMBURSEMENT AGREEMENT" means the confirmation
agreement, reimbursement agreement or other agreement between a Confirming
Bank and the Agent pursuant to which the Agent agrees to reimburse such
Confirming Bank for payments made by such Confirming Bank under the
applicable Confirming Bank Letter of Credit.
"CREDIT AGREEMENT" means that certain Credit Agreement dated as of
September 16, 1997, by and among the Borrower, the financial institutions
from time to time parties thereto as "Lenders" and First Union National
Bank, as Agent, as in effect on the date hereof and as hereinafter in
effect (or deemed in effect) as specified in Section 10.8.
"CREDIT AGREEMENT DEFAULT" means any event or condition set forth in
Section 10.1. of the Credit Agreement.
"CREDIT AGREEMENT REPRESENTATIONS" means the representations and
warranties of the Borrower and its Subsidiaries made or deemed made under
the Credit Agreement or any other Loan Document (as defined therein),
including without limitation, the representations and warranties set forth
in Article VI of the Credit Agreement.
"DEFAULT" means any of the events specified in Section 8.1., whether
or not there has been satisfied any requirement for the giving of notice,
the lapse of time or both.
"DEFAULTING LENDER" has the meaning set forth in Section 3.10.
"DOLLARS" or "$" means the lawful currency of the United States of
America.
"EFFECTIVE DATE" means the later of: (a) the Agreement Date; and
(b) the date on which all of the conditions precedent set forth in
Section 5.1. shall have been fulfilled or waived in writing by the Agent.
"ELIGIBLE ASSIGNEE" means any Person who is: (i) currently a Lender;
(ii) a commercial bank, trust company, insurance company, investment bank
or pension fund organized under the laws of the United States of America,
or any state thereof, and having total assets in excess of $5,000,000,000;
(iii) a savings and loan association or savings bank organized under the
laws of the United States of America, or any state thereof, and having a
tangible net worth of at least $500,000,000; or (iv) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development ("OECD"), or a
political subdivision of any such country, and having total assets in
excess of $10,000,000,000, provided that such bank is acting through a
branch or agency located in the United States of America. If such Person
is not currently a Lender, such Person's senior unsecured long term
indebtedness must be rated BBB or higher by S&P, Baa2 or higher by Moody's,
or the equivalent or higher of either such rating by another Rating Agency
acceptable to the Agent. Notwithstanding the foregoing, if an Event of
Default shall have occurred and be continuing under Section 8.1.(a) or (b),
the "Eligible Assignee" shall mean any Person that is not an individual.
"EVENT OF DEFAULT" means any of the events specified in Section 8.1.,
provided that any requirement for notice or lapse of time or any other
condition has been satisfied.
"EXTENSION REQUEST" has the meaning given that term in Section 2.3.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published
by the Federal Reserve Bank of New York on the Business Day next succeeding
such day, provided that (a) if such day is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on the next
preceding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall be
the average rate quoted to the Agent by federal funds dealers selected by
the Agent on such day on such transaction as determined by the Agent.
"FEES" means the fees and commissions provided for or referred to in
Section 3.5. and any other fees payable by the Borrower hereunder or under
any other Loan Document.
"FIRST UNION" means First Union National Bank and its successors and
assigns.
"FOREIGN LENDER" means any Lender organized under the laws of a
jurisdiction other than the United States of America.
"GAAP" means accounting principles as promulgated from time to time in
statements, opinions and pronouncements by the American Institute of
Certified Public Accountants and the Financial Accounting Standards Board
and in such statements, opinions and pronouncements of such other entities
with respect to financial accounting of for-profit entities as shall be
accepted by a substantial segment of the accounting profession in the
United States.
"GOVERNMENTAL APPROVALS" means all authorizations, consents,
approvals, licenses and exemptions of, registrations and filings with, and
reports to, all Governmental Authorities.
"GOVERNMENTAL AUTHORITY" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any
other governmental, quasi-governmental, judicial, public or statutory
instrumentality, authority, body, agency, bureau or entity (including,
without limitation, the Federal Deposit Insurance Corporation, the
Comptroller of the Currency or the Federal Reserve Board, any central bank
or any comparable authority) or any arbitrator with authority to bind a
party at law.
"GUARANTY" means the Guaranty to which various Subsidiaries are from
time to time parties and substantially in the form of Exhibit B.
"INDENTURE" means any of the trust indentures described in
Schedule 1.1.(b).
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended.
"ISSUER" means any Person who issued any Bond.
"L/C COMMITMENT AMOUNT" equals $100,991,788.
"LENDER" means each financial institution from time to time party
hereto as a "Lender," together with its respective successors and assigns.
"LENDING OFFICE" means, for each Lender, the office of such Lender
specified as such on its signature page hereto or in the applicable
Assignment and Acceptance Agreement, or such other office of such Lender as
such Lender may notify the Agent in writing from time to time.
"LETTER OF CREDIT" has the meaning set forth in Section 2.1.(a).
"LETTER OF CREDIT DOCUMENTS" means, with respect to any Letter of
Credit, collectively, any application therefor, any certificate or other
document presented in connection with a drawing under such Letter of Credit
and any other agreement, instrument or other document governing or
providing for (a) the rights and obligations of the parties concerned or at
risk with respect to such Letter of Credit or (b) any collateral security
for any of such obligations.
"LETTER OF CREDIT LIABILITIES" shall mean, without duplication, at any
time and in respect of any Letter of Credit, the sum of (a) the Stated
Amount of such Letter of Credit plus (b) the aggregate unpaid principal
amount of all Reimbursement Obligations of the Borrower at such time due
and payable in respect of all drawings made under such Letter of Credit.
For purposes of this Agreement, a Lender (other than the Agent in its
capacity as such) shall be deemed to hold a Letter of Credit Liability in
an amount equal to its participation interest in the related Letter of
Credit under Section 2.1.(f), and the Agent shall be deemed to hold a
Letter of Credit Liability in an amount equal to its retained interest in
the related Letter of Credit after giving effect to the acquisition by the
Lenders other than the Agent of their participation interests under such
Section.
"LOAN DOCUMENT" means this Agreement, each Letter of Credit Document
and each other document or instrument now or hereafter executed and
delivered by the Borrower or any Subsidiary in connection with, pursuant to
or relating to this Agreement.
"MATERIAL ADVERSE EFFECT" means a materially adverse effect on (a) the
business, assets, liabilities, financial condition, results of operations
or business prospects of the Borrower and its Subsidiaries taken as a
whole, (b) the ability of the Borrower to perform its obligations under any
Loan Document to which it is a party which does not result from a material
adverse effect on the items described in the immediate preceding
clause (a), (c) the validity or enforceability of any of the Loan
Documents, (d) the rights and remedies of the Lenders and the Agent under
any of such Loan Documents or (e) the timely payment of the Reimbursement
Obligations or other amounts payable in connection herewith. Except with
respect to representations made or deemed made by the Borrower or any
Subsidiary in any of the other Loan Documents to which it is a party, all
determinations of materiality shall be made by the Requisite Lenders in
their reasonable judgment unless expressly provided otherwise.
"MATERIAL SUBSIDIARY" has the meaning given that term in the Credit
Agreement.
"MORTGAGE" means each Mortgage, Assignment of Rents and Leases and
Security Agreement executed by a Target Partnership in favor of the Agent.
"OBLIGATIONS" means, individually and collectively: (a) all
Reimbursement Obligations and all other Letter of Credit Liabilities and
(b) all other indebtedness, liabilities, obligations, covenants and duties
of the Borrower owing to the Agent or any Lender of every kind, nature and
description, under or in respect of this Agreement or any of the other Loan
Documents, including, without limitation, the Fees and indemnification
obligations, whether direct or indirect, absolute or contingent, due or not
due, contractual or tortious, liquidated or unliquidated, and whether or
not evidenced by any promissory note.
"OTHER RELEVANT SUBSIDIARY" means any Subsidiary, individually or
together with other Subsidiaries, the occurrence of any of the events
described in Sections 8.1.(f) or 8.1.(g) with respect to which could
reasonably be expected to have a Material Adverse Effect.
"PARTICIPANT" has the meaning given that term in Section 10.5.(b).
"PERSON" means an individual, corporation, partnership, limited
liability company, association, trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
"PLACEMENT MEMORANDUM" means, with respect to a given issue of Bonds,
the private placement memorandum, offering circular, remarketing circular
or other similar writing used by the Remarketing Agent in connection with
sales of such Bonds.
"PLEDGE AGREEMENT" means the Pledge Agreement dated as of the date
hereof executed by the Borrower in favor of the Agent and in substantially
the form of Exhibit C.
"POST-DEFAULT RATE" means, in respect of any principal of any Loan or
any other Obligation that is not paid when due (whether at stated maturity,
by acceleration, by optional or mandatory prepayment or otherwise), a rate
per annum equal to four percent (4.0%) plus the Base Rate as in effect from
time to time.
"PRIME RATE" means the rate of interest per annum announced publicly
by the Agent as its prime rate from time to time. The Prime Rate is not
necessarily the best or the lowest rate of interest offered by the Agent or
any Lender.
"PRINCIPAL OFFICE" means the office of the Agent located at Xxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or such other office of the
Agent as the Agent may designate from time to time.
"REGISTER" has the meaning given that term in Section 10.5.(d).
"REGULATORY CHANGE" means, with respect to any Lender, any change
effective after the Agreement Date in Applicable Law (including without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) or the adoption or making after such date of any interpretation,
directive or request applying to a class of banks, including such Lender,
of or under any Applicable Law (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful) by any
Governmental Authority or monetary authority charged with the
interpretation or administration thereof or compliance by any Lender with
any request or directive regarding capital adequacy.
"REIMBURSEMENT OBLIGATION" means the absolute, unconditional and
irrevocable obligation of the Borrower to reimburse the Agent for (a) any
drawing honored by the Agent under a Letter of Credit or (b) any payment
made by the Agent to any Confirming Bank under or in respect of a
Confirming Bank Letter of Credit or Confirming Bank Reimbursement
Agreement.
"REMARKETING AGENT" means the Person acting as remarketing agent (or
performing an analogous function) for a given issue of Bonds.
"REQUISITE LENDERS" means, as of any date, Lenders having at least
66-2/3% of the aggregate amount of the Commitments, or, if the Commitments
have been terminated or reduced to zero, Lenders holding at least 66-2/3%
of the principal amount of the Letter of Credit Liabilities.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, together with all rules and regulations issued thereunder.
"S&P" means Standard & Poor's Rating Group, a division of XxXxxx-Xxxx
Companies, Inc.
"STATED AMOUNT" means the amount available to be drawn by a
beneficiary under a Letter of Credit from time to time, as such amount may
be increased or reduced from time to time in accordance with the terms of
such Letter of Credit.
"STATED TERMINATION DATE" means the date set forth as such in a Letter
of Credit and any such later date to which it may be extended in accordance
with Section 2.3.
"SUBSIDIARY" means, for any Person, any corporation, partnership or
other entity of which at least a majority of the securities or other
ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing
similar functions of such corporation, partnership or other entity (without
regard to the occurrence of any contingency) is at the time directly or
indirectly owned or controlled by such Person or one or more Subsidiaries
of such Person or by such Person and one or more Subsidiaries of such
Person. "WHOLLY OWNED SUBSIDIARY" means any such corporation, partnership
or other entity of which all of the equity securities or other ownership
interests (other than, in the case of a corporation, directors' qualifying
shares) are so owned or controlled.
"TARGET PARTNERSHIP" means each of the partnerships identified on
Schedule 1.1.(c).
"TAXES" has the meaning given that term in Section 3.11.
"TRUSTEE" means any Person acting in the capacity of trustee for the
holders of any series of Bonds pursuant to the applicable Bond Documents.
SECTION 1.2. GENERAL; REFERENCES TO TIMES.
Unless otherwise indicated, all accounting terms, ratios and
measurements shall be interpreted or determined in accordance with GAAP in
effect as of the Agreement Date. References in this Agreement to
"Sections", "Articles", "Exhibits" and "Schedules" are to sections,
articles, exhibits and schedules herein and hereto unless otherwise
indicated. References in this Agreement to any document, instrument or
agreement (a) shall include all exhibits, schedules and other attachments
thereto, (b) shall include all documents, instruments or agreements issued
or executed in replacement thereof, to the extent permitted hereby and
(c) shall mean such document, instrument or agreement, or replacement or
predecessor thereto, as amended, supplemented, restated or otherwise
modified from time to time to the extent permitted hereby and in effect at
any given time. Wherever from the context it appears appropriate, each
term stated in either the singular or plural shall include the singular and
plural, and pronouns stated in the masculine, feminine or neuter gender
shall include the masculine, the feminine and the neuter. Unless
explicitly set forth to the contrary, a reference to "Subsidiary" means a
Subsidiary of the Borrower or a Subsidiary of such Subsidiary and a
reference to an "Affiliate" means a reference to an Affiliate of the
Borrower. Titles and captions of Articles, Sections, subsections and
clauses in this Agreement are for convenience only, and neither limit nor
amplify the provisions of this Agreement. Unless otherwise indicated, all
references to time are references to Charlotte, North Carolina time.
ARTICLE II. LETTER OF CREDIT FACILITY
Section 2.1. Letters of Credit.
(a) LETTERS OF CREDIT. Subject to the terms and conditions of this
Agreement, the Agent, on behalf of the Lenders, agrees to issue for the
account of the Borrower on the Effective Date one or more letters of credit
(each a "Letter of Credit") up to a maximum aggregate Stated Amount at any
one time outstanding not to exceed the L/C Commitment Amount. Each Letter
of Credit shall be substantially in the form of Exhibit D attached hereto
or in such other form as may be acceptable to the Agent in its sole
discretion. The Stated Amount, initial beneficiary, Stated Termination
Date and brief description of the intended use of each Letter of Credit is
set forth on Schedule 2.1. To the extent any term of a Letter of Credit
Document (other than a Letter of Credit) is inconsistent with a term of any
other Loan Document that is not a Letter of Credit Document, the term of
such Loan Document shall control.
(b) REIMBURSEMENT OBLIGATIONS. The Borrower hereby unconditionally
and irrevocably agrees to pay and reimburse the Agent for the amount of
each demand for payment honored by the Agent under any Letter of Credit
promptly upon payment by the Agent to the beneficiary, without presentment,
demand, protest or other formalities of any kind. Upon receipt by the
Agent of any payment in respect of any Reimbursement Obligation in respect
of any Letter of Credit, the Agent shall promptly pay to each Lender that
has acquired a participation therein under the second sentence of
Section 2.1.(f) such Lender's Commitment Percentage of such payment.
(c) EFFECT OF LETTERS OF CREDIT ON COMMITMENTS. Upon the issuance by
the Agent of any Letter of Credit and until such Letter of Credit shall
have expired or been terminated, the Commitment of each Lender shall be
deemed to be utilized for all purposes of this Agreement in an amount equal
to such Lender's Commitment Percentage of the Stated Amount of such Letter
of Credit plus any related Reimbursement Obligations then outstanding.
(d) AGENT'S DUTIES REGARDING LETTERS OF CREDIT; UNCONDITIONAL NATURE
OF REIMBURSEMENT OBLIGATION. In examining documents presented in
connection with drawings under Letters of Credit and making payments under
such Letters of Credit against such documents, the Agent shall use the same
standard of care as it uses in connection with examining documents
presented in connection with drawings under letters of credit in which it
has not sold participations and making payments under such letters of
credit. The Borrower assumes all risks of the acts and omissions of, or
misuse of the Letters of Credit by, the respective beneficiaries of such
Letters of Credit. In furtherance and not in limitation of the foregoing,
neither the Agent nor any of the Lenders shall, except and only to the
extent the Agent or such Lender has acted with gross negligence or willful
misconduct, be responsible for (i) the form, validity, sufficiency,
accuracy, genuineness or legal effects of any document submitted by any
party in connection with the application for and issuance of or any drawing
honored under any Letter of Credit even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of Credit, or the
rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason; (iii) failure
of the beneficiary of any Letter of Credit to comply fully with conditions
required in order to draw upon such Letter of Credit; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telex, telecopy or otherwise, whether or not they
be in cipher; (v) errors in interpretation of technical terms; (vi) any
loss or delay in the transmission or otherwise of any document required in
order to make a drawing under any Letter of Credit, or of the proceeds
thereof; (vii) the misapplication by the beneficiary of any such Letter of
Credit, or the proceeds of any drawing under such Letter of Credit; or
(viii) any consequences arising from causes beyond the control of the Agent
or the Lenders. None of the above shall affect, impair or prevent the
vesting of any of the Agent's rights or powers hereunder. No action taken
or omitted to be taken by the Agent under or in connection with any Letter
of Credit, if taken or omitted in the absence of gross negligence or
willful misconduct, shall create against the Agent any liability to the
Borrower or any Lender. In this connection, the obligation of the Borrower
to reimburse the Agent for any drawing made under any Letter of Credit
shall be absolute, unconditional and irrevocable and shall be paid strictly
in accordance with the terms of this Agreement under all circumstances
whatsoever, including without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Letter of Credit
Document, any Bond Document or any term or provisions therein; (B) any
amendment or waiver of or any consent to departure from all or any of the
Letter of Credit Documents; (C) the existence of any claim, setoff, defense
or other right which the Borrower may have at any time against the Agent,
any Lender, any Trustee, any Issuer, any beneficiary of a Letter of Credit
or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby, the Bond Documents, the transactions
contemplated thereby, or in the Letter of Credit Documents or any
unrelated transaction; (D) any breach of contract or dispute between the
Borrower, the Agent, any Lender, any Trustee, any Issuer, or any other
Person; (E) any demand, statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein or made in connection therewith
being untrue or inaccurate in any respect whatsoever; (F) any
non-application or misapplication by the beneficiary of a Letter of Credit
of the proceeds of any drawing under such Letter of Credit; (G) payment by
the Agent under the Letter of Credit against presentation of a draft or
certificate which does not strictly comply with the terms of the Letter of
Credit; and (H) any other act, omission to act, delay or circumstance
whatsoever that might, but for the provisions of this Section, constitute a
legal or equitable defense to or discharge of the Borrower's Reimbursement
Obligations.
(e) AMENDMENTS, ETC. The issuance by the Agent of any amendment,
supplement or other modification to any Letter of Credit shall be subject
to the same conditions applicable under this Agreement to the initial
issuance of the Letters of Credit (including, without limitation, that the
request therefor be made through the Agent), and no such amendment,
supplement or other modification shall be issued unless either (i) the
respective Letter of Credit affected thereby would have complied with such
conditions had it originally been issued hereunder in such amended,
supplemented or modified form or (ii) the Requisite Lenders shall have
consented thereto.
(f) LENDERS' PARTICIPATION IN LETTERS OF CREDIT. Each Lender shall
be deemed to have irrevocably and unconditionally purchased and received
from the Agent, without recourse or warranty, an undivided interest and
participation to the extent of such Lender's Commitment Percentage of the
liability of the Agent with respect to each Letter of Credit and each
Lender thereby shall absolutely, unconditionally and irrevocably assume, as
primary obligor and not as surety, and shall be unconditionally obligated
to the Agent to pay and discharge when due, such Lender's Commitment
Percentage of the Agent's liability under such Letter of Credit. In
addition, upon the making of each payment by a Lender to the Agent in
respect of any Letter of Credit pursuant to the immediately following
subsection (g), such Lender shall, automatically and without any further
action on the part of the Agent or such Lender, acquire (i) a participation
in an amount equal to such payment in the Reimbursement Obligation owing to
the Agent by the Borrower in respect of such Letter of Credit and (ii) a
participation in a percentage equal to such Lender's Commitment Percentage
in any interest or other amounts payable by the Borrower in respect of such
Reimbursement Obligation (other than the Fees payable to the Agent pursuant
to the last sentence of Section 3.5.(a) or under Section 3.5.(b)).
(g) PAYMENT OBLIGATION OF LENDERS. Each Lender severally agrees to
pay to the Agent on demand in immediately available funds in Dollars the
amount of such Lender's Commitment Percentage of each drawing paid by the
Agent under each Letter of Credit to the extent such amount is not
reimbursed by the Borrower pursuant to Section 2.1.(b). Each such Lender's
obligation to make such payments to the Agent under this subsection, and
the Agent's right to receive the same, shall be absolute, irrevocable and
unconditional and shall not be affected in any way by any circumstance
whatsoever, including without limitation, (i) the failure of any other
Lender to make its payment under this subsection, (ii) the financial
condition of the Borrower or any of its Subsidiaries, (iii) the existence
of any Default or Event of Default, including any Event of Default
described in Section 8.1.(f) or 8.1.(g), or (iv) the termination of the
Commitments. Each such payment to the Agent shall be made without any
offset, abatement, withholding or deduction whatsoever.
(h) INFORMATION TO LENDERS. Upon the request of any Lender from time
to time, the Agent shall deliver to such Lender information reasonably
requested by such Lender with respect to any Letter of Credit then
outstanding. Other than as set forth in this subsection, the Agent shall
have no duty to notify the Lenders with respect to matters regarding any
Letter of Credit. The failure of the Agent to perform its requirements
under this subsection shall not relieve any Lender from its obligations
under Section 2.1.(g).
SECTION 2.2. CONFIRMING BANK LETTER OF CREDIT.
(a) LETTERS OF CREDIT. Subject to the terms and conditions of this
Agreement, on the Effective Date the Agent agrees to cause to be delivered
to the applicable Trustees five Confirming Bank Letters of Credit having
the initial stated amounts, expiration dates and the other terms generally
described in Schedule 2.2.
(b) REIMBURSEMENT OBLIGATIONS. The Borrower hereby unconditionally
and irrevocably agrees to pay and reimburse the Agent for the amount of
each payment made by the Agent to any Confirming Bank under or pursuant to
the terms of any Confirming Bank Reimbursement Agreement promptly upon
payment thereof by the Agent, without presentment, demand, protest or other
formalities of any kind. Upon receipt by the Agent of any payment in
respect of any such Reimbursement Obligation, the Agent shall promptly pay
to each Lender that has acquired a participation therein under the second
sentence of Section 2.2.(d) such Lender's Commitment Percentage of such
payment.
(c) UNCONDITIONAL NATURE OF REIMBURSEMENT OBLIGATION. The Borrower
assumes all risks of the acts and omissions of, or misuse of the Confirming
Letters of Credit by, the respective beneficiaries of such Confirming
Letters of Credit. In furtherance and not in limitation of the foregoing,
neither the Agent nor any of the Lenders shall, except and only to the
extent the Agent or such Lender has acted with gross negligence or willful
misconduct, be responsible for (i) the form, validity, sufficiency,
accuracy, genuineness or legal effects of any document submitted by any
party in connection with the application for and issuance of or any drawing
honored under any Confirming Letter of Credit even if it should in fact
prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any
Confirming Letter of Credit, or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (iii) failure of the beneficiary of any
Confirming Letter of Credit to comply fully with conditions required in
order to draw upon such Confirming Letter of Credit; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telex, telecopy or otherwise, whether or not they
be in cipher; (v) errors in interpretation of technical terms; (vi) any
loss or delay in the transmission or otherwise of any document required in
order to make a drawing under any Confirming Letter of Credit, or of the
proceeds thereof; (vii) the misapplication by the beneficiary of any such
Confirming Letter of Credit, or the proceeds of any drawing under such
Confirming Letter of Credit; or (viii) any consequences arising from causes
beyond the control of the Agent or the Lenders. No action taken or omitted
to be taken by the Agent under or in connection with any Confirming Letter
of Credit, if taken or omitted in the absence of gross negligence or
willful misconduct, shall create against the Agent any liability to the
Borrower or any Lender. In this connection, the obligation of the Borrower
to reimburse the Agent for any payment made by the Agent to any Confirming
Bank under or pursuant to the terms of any Confirming Bank Reimbursement
Agreement shall be absolute, unconditional and irrevocable and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances whatsoever, including without limitation, the following
circumstances: (A) any lack of validity or enforceability of any Confirming
Bank Letter of Credit, any Confirming Bank Reimbursement Agreement, any
Bond Document or any term or provisions therein; (B) any amendment or
waiver of or any consent to departure from all or any of the terms of any
Confirming Bank Letter of Credit or any Confirming Bank Reimbursement
Agreement; (C) the existence of any claim, setoff, defense or other right
which the Borrower may have at any time against the Agent, any Lender, any
Trustee, any Issuer, any Confirming Bank, any beneficiary of a Confirming
Letter of Credit or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby, the Bond Documents, the
transactions contemplated thereby, or in any unrelated transaction; (D) any
breach of contract or dispute between the Borrower, the Agent, any Lender,
any Trustee, any Issuer, any Confirming Bank or any other Person; (E) any
demand, statement or any other document presented under a Confirming Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein or made in connection therewith being
untrue or inaccurate in any respect whatsoever; (F) any non-application or
misapplication by the beneficiary of a Confirming Letter of Credit of the
proceeds of any drawing under such Confirming Letter of Credit; (G) payment
by a Confirming Bank under a Confirming Letter of Credit against
presentation of a draft or certificate which does not strictly comply with
the terms of such Confirming Letter of Credit; and (H) any other act,
omission to act, delay or circumstance whatsoever that might, but for the
provisions of this Section, constitute a legal or equitable defense to or
discharge of the Borrower's Reimbursement Obligations.
(d) LENDERS' PARTICIPATION IN AGENT'S REIMBURSEMENT OBLIGATIONS.
Each Lender shall be deemed to have irrevocably and unconditionally
purchased and received from the Agent, without recourse or warranty, an
undivided interest and participation to the extent of such Lender's
Commitment Percentage of the liability of the Agent with respect to each
Confirming Letter of Credit and the related Confirming Bank Reimbursement
Agreement, and each Lender thereby shall absolutely, unconditionally and
irrevocably assume, as primary obligor and not as surety, and shall be
unconditionally obligated to the Agent to pay and discharge when due, such
Lender's Commitment Percentage of the Agent's liability under or in respect
of any Confirming Letter of Credit and the related Confirming Bank
Reimbursement Agreement. In addition, upon the making of each payment by a
Lender to the Agent in respect of any Confirming Letter of Credit or any
Confirming Bank Reimbursement Agreement pursuant to the immediately
following subsection (e), such Lender shall, automatically and without any
further action on the part of the Agent or such Lender, acquire (i) a
participation in an amount equal to such payment in the Reimbursement
Obligation owing to the Agent by the Borrower in respect of such Confirming
Letter of Credit or Confirming Bank Reimbursement agreement and (ii) a
participation in a percentage equal to such Lender's Commitment Percentage
in any interest or other amounts payable by the Borrower in respect of such
Reimbursement Obligation.
(e) PAYMENT OBLIGATION OF LENDERS. Each Lender severally agrees to
pay to the Agent on demand in immediately available funds in Dollars the
amount of such Lender's Commitment Percentage of each payment made by the
Agent to any Confirming Bank under or pursuant to the terms of any
Confirming Bank Reimbursement Agreement to the extent such amount is not
reimbursed by the Borrower pursuant to Section 2.2.(b). Each such Lender's
obligation to make such payments to the Agent under this subsection, and
the Agent's right to receive the same, shall be absolute, irrevocable and
unconditional and shall not be affected in any way by any circumstance
whatsoever, including without limitation, (i) the failure of any other
Lender to make its payment under this subsection, (ii) the financial
condition of the Borrower or any of its Subsidiaries, (iii) the existence
of any Default or Event of Default, including any Event of Default
described in Section 8.1.(f) or 8.1.(g), (iv) the termination of the
Commitments or (v) the Agent's failure initially to make payment under the
Letter of Credit associated with a Confirming Bank Letter of Credit. Each
such payment to the Agent shall be made without any offset, abatement,
withholding or deduction whatsoever.
SECTION 2.3. EXTENSION OF STATED TERMINATION DATES.
The Borrower may request that the Agent and the Lenders extend the
current Stated Termination Date of a Letter of Credit by a one year period
by executing and delivering to the Agent at least 90 days but no more than
120 days prior to the current Stated Termination Date of such Letter of
Credit, a written request for such extension (an "Extension Request"). The
Agent shall forward to each Lender a copy of each Extension Request
delivered to the Agent promptly after receipt thereof. The Borrower
understands that this Section has been included in this Agreement for the
Borrower's convenience in requesting an extension of Stated Termination
Dates and the Borrower acknowledges that none of the Lenders nor the Agent
has promised (either expressly or impliedly), nor has any obligation or
commitment whatsoever, to extend any Stated Termination Date at any time.
If all of the Lenders shall have notified the Agent in writing on or prior
to the date which is 30 days prior to such current Stated Termination Date
that they accept such Extension Request, then such current Stated
Termination Date shall be extended to the date one year following such
current Stated Termination Date. The Agent shall evidence such consent and
the extension of any such Stated Termination Date by delivering to the
beneficiary of such Letter of Credit, no later than 5 Business Days prior
to the then current Stated Termination Date, a notice of extension in the
form provided under such Letter of Credit or such other form as may be
acceptable to the beneficiary of such Letter of Credit. If any Lender
shall not have notified the Agent on or prior to the date which is 30 days
prior to such current Stated Termination Date that it accepts such
Extension Request, then such current Stated Termination Date shall not be
extended. The Agent shall promptly notify the Borrower and the Lenders
whether the Extension Request has been accepted or rejected.
SECTION 2.4. MATURITY DATE OF LETTERS OF CREDIT PAST FACILITY TERMINATION
DATE.
If on the date (the "Facility Termination Date") the Commitments are
terminated (whether voluntarily, by reason of the occurrence of an Event of
Default or otherwise), there are any Letters of Credit outstanding
hereunder, the Borrower shall, on the Facility Termination Date, pay to the
Agent an amount of Dollars equal to the Stated Amount of such Letters of
Credit for deposit into the Collateral Account. If a drawing pursuant to
any such Letter of Credit occurs on or prior to the expiration of such
Letter of Credit, the Borrower authorizes the Agent to use the monies
deposited in the Collateral Account to make payment to the beneficiary with
respect to such drawing or the payee with respect to such presentment. The
Agent shall pay to the Borrower (or to whomever else may be legally
entitled thereto) the monies deposited in the Collateral Account no later
than the date 30 Business Days following the expiration of all Letters of
Credit.
ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
Section 3.1. Payments.
Except to the extent otherwise provided herein, all payments to be
made by the Borrower under this Agreement or any other Loan Document shall
be made in Dollars, in immediately available funds, without deduction,
set-off or counterclaim, to the Agent at its Principal Office, not later
than 2:00 p.m. on the date on which such payment shall become due (each
such payment made after such time on such due date to be deemed to have
been made on the next succeeding Business Day). Prior to making any such
payment, the Borrower shall give the Agent notice of such payment. Subject
to Sections 3.2. and 3.3., the Agent may (but shall not be obligated to)
debit the amount of any such payment which is not made by such time from
any special or general deposit account of the Borrower with the Agent (with
notice to the Borrower, the other Lenders and the Agent). The Borrower
shall, at the time of making each payment under this Agreement, specify to
the Agent the amounts payable by the Borrower hereunder to which such
payment is to be applied. Each payment received by the Agent for the
account of a Lender under this Agreement shall be paid to such Lender at
the applicable Lending Office of such Lender no later than 5:00 p.m. on the
date of receipt. If the Agent fails to pay such amount to a Lender as
provided in the previous sentence, the Agent shall pay interest on such
amount until paid at a rate per annum equal to the Federal Funds Rate from
time to time in effect. If the due date of any payment under this
Agreement or any other Loan Document would otherwise fall on a day which is
not a Business Day such date shall be extended to the next succeeding
Business Day and interest shall be payable for the period of such
extension. If any amount required to be paid by the Borrower to the Agent
or any Lender under this Agreement or any Loan Document remains unpaid
after such amount is due (whether because of operation of law or
otherwise), the Borrower shall pay interest on such past due amount from
the date due until such amount is paid in full at the Post-Default Rate.
All such interest shall be due and payable on demand.
SECTION 3.2. PRO RATA TREATMENT.
Except to the extent otherwise provided herein: (a) each payment of
the Fees under Section 3.5.(a) shall be made for account of the Lenders pro
rata according to the amounts of their respective Commitments and (b) the
Lenders' participation in, and payment obligations in respect of, Letters
of Credit under Section 2.1., and Confirming Bank Letters of Credit and
Confirming Bank Reimbursement Agreements under Section 2.2., shall be pro
rata in accordance with their respective Commitments.
SECTION 3.3. SHARING OF PAYMENTS, ETC.
The Borrower agrees that, in addition to (and without limitation of)
any right of set-off, banker's lien or counterclaim a Lender or the Agent
may otherwise have, each Lender and the Agent shall be entitled, at its
option, to offset balances held by it for the account of the Borrower at
any of such Lender's (or the Agent's) offices, in Dollars or in any other
currency, against any Obligations owing to such Lender or the Agent
hereunder which is not paid when due (regardless of whether such balances
are then due to the Borrower), in which case such Lender shall promptly
notify the Borrower, all other Lenders and the Agent thereof; provided,
however, such Lender's failure to give such notice shall not affect the
validity of such offset. If a Lender shall obtain payment of any
Obligation owing by the Borrower through the exercise of any right of
set-off, banker's lien or counterclaim or similar right or otherwise or
through voluntary prepayments directly to a Lender or other payments made
by the Borrower to a Lender not in accordance with the terms of this
Agreement and such payment should be distributed to the Lenders pro rata in
accordance with Section 3.2. or Section 8.3., as applicable, such Lender
shall promptly pay such amounts to the Agent for application pursuant to
the applicable terms of the Loan Documents, and make such other adjustments
from time to time as shall be equitable, to the end that the Agent and all
the Lenders shall share the benefit of such payment (net of any reasonable
expenses which may be incurred by such Lender in obtaining or preserving
such benefit) in accordance with Section 3.2. or Section 8.3. To such end,
all the Lenders shall make appropriate adjustments among themselves (by the
resale of participations sold or otherwise) if such payment is rescinded or
must otherwise be restored. Nothing contained herein shall require any
Lender to exercise any such right or shall affect the right of any Lender
to exercise, and retain the benefits of exercising, any such right with
respect to any other indebtedness or obligation of the Borrower.
SECTION 3.4. SEVERAL OBLIGATIONS.
No Lender shall be responsible for the failure of any other Lender to
perform any obligation to be made or performed by such other Lender
hereunder, and the failure of any Lender to perform any obligation to be
made or performed by it hereunder shall not relieve the obligation of any
other Lender to perform any obligation to be made or performed by such
other Lender.
SECTION 3.5. FEES.
(a) LETTER OF CREDIT FEES. The Borrower agrees to pay to the Agent
for account of each Lender a letter of credit fee as may be agreed to in
writing by the Agent and the Borrower from time to time. The Borrower
shall pay directly to the Agent from time to time on demand all
commissions, charges, costs and expenses in the amounts customarily charged
by the Agent from time to time in like circumstances with respect to the
issuance of each Letter of Credit, drawings, amendments and other
transactions relating thereto.
(b) ADMINISTRATIVE AND OTHER FEES. The Borrower agrees to pay the
administrative and other fees of the Agent as may be agreed to in writing
by the Agent and the Borrower from time to time.
SECTION 3.6. COMPUTATIONS.
Unless otherwise expressly set forth herein, any Fees or accrued
interest on any Obligations due hereunder shall be computed on the basis of
a year of 360 days and the actual number of days elapsed.
SECTION 3.7. USURY.
In no event shall the amount of interest due or payable on the
Obligations exceed the maximum rate of interest allowed by Applicable Law
and, if any such payment is paid by the Borrower or received by any Lender,
then such excess sum shall be credited as a payment of principal, unless
the Borrower shall notify the respective Lender in writing that the
Borrower elects to have such excess sum returned to it forthwith. It is
the express intent of the parties hereto that the Borrower not pay and the
Lenders not receive, directly or indirectly, in any manner whatsoever,
interest in excess of that which may be lawfully paid by the Borrower under
Applicable Law.
SECTION 3.8. AGREEMENT REGARDING INTEREST AND CHARGES.
The parties hereto agree and stipulate that all agency fees,
syndication fees, facility fees, underwriting fees, letter of credit fees,
default charges, late charges, increased cost charges, attorneys' fees and
reimbursement for costs and expenses paid by the Agent or any Lender to
third parties or for damages incurred by the Agent or any Lender, are
charges made to compensate the Agent or any such Lender for underwriting or
administrative services and costs or losses performed or incurred, and to
be performed or incurred, by the Agent and the Lenders in connection with
this Agreement and shall under no circumstances be deemed to be charges for
the use of money. It is the express intent of the parties hereto that the
Borrower not pay and neither the Agent nor the Lenders receive, directly or
indirectly, in any manner whatsoever, interest in excess of that which may
be lawfully paid by the Borrower under Applicable Law.
SECTION 3.9. STATEMENTS OF ACCOUNT.
The Agent will account to the Borrower monthly with a statement of
accrued interest and Fees, charges and payments made pursuant to this
Agreement and the other Loan Documents, and such account rendered by the
Agent shall be deemed conclusive upon Borrower absent manifest error. The
failure of the Agent to deliver such a statement of accounts shall not
relieve or discharge the Borrower from any of its obligations hereunder.
SECTION 3.10. DEFAULTING LENDERS.
(a) GENERALLY. If for any reason any Lender (a "Defaulting Lender")
shall fail or refuse to perform any of its obligations under this Agreement
or any other Loan Document to which it is a party within the time period
specified for performance of such obligation or, if no time period is
specified, if such failure or refusal continues for a period of two
Business Days after notice from the Agent, then, in addition to the rights
and remedies that may be available to the Agent or the Borrower under this
Agreement or Applicable Law, such Defaulting Lender's right to participate
in the administration of this Agreement and the other Loan Documents,
including without limitation, any right to vote in respect of, to consent
to or to direct any action or inaction of the Agent or to be taken into
account in the calculation of the Requisite Lenders, shall be suspended
during the pendency of such failure or refusal. If a Lender is a
Defaulting Lender because it has failed to make timely payment to the Agent
of any amount required to be paid to the Agent hereunder (without giving
effect to any notice or cure periods), in addition to other rights and
remedies which the Agent may have under the immediately preceding
provisions or otherwise, the Agent shall be entitled (i) to collect
interest from such Defaulting Lender on such delinquent payment for the
period from the date on which the payment was due until the date on which
the payment is made at the Federal Funds Rate, and (ii) to withhold or
setoff and to apply in satisfaction of the defaulted payment and any
related interest, any amounts otherwise payable to such Defaulting Lender
under this Agreement or any other Loan Document. Any amounts received by
the Agent in respect of a Defaulting Lender's Obligations shall not be paid
to such Defaulting Lender and shall be held uninvested by the Agent and
either applied against the purchase price of the Defaulting Lender's
Commitment under the following subsection (b) or paid to such Defaulting
Lender upon the Defaulting Lender's curing of its default.
(b) PURCHASE OF DEFAULTING LENDER'S COMMITMENT. Any Lender who is
not a Defaulting Lender shall have the right, but not the obligation, in
its sole discretion, to acquire all of a Defaulting Lender's Commitment.
Any Lender desiring to exercise such right shall give written notice
thereof to the Agent no sooner than 2 Business Days and not later than
10 Business Days after such Defaulting Lender became a Defaulting Lender.
If more than one Lender exercises such right, each such Lender shall have
the right to acquire an amount of such Defaulting Lender's Commitment in
proportion to the Commitments of the other Lenders exercising such right.
Upon any such purchase, the Defaulting Lender's interest in the Letter of
Credit Liabilities held by such Defaulting Lender and its rights hereunder
(but not its liability in respect thereof or under the Loan Documents or
this Agreement to the extent the same relate to the period prior to the
effective date of the purchase) shall terminate on the date of purchase,
and the Defaulting Lender shall promptly execute all documents reasonably
requested to surrender and transfer such interest to the purchaser thereof,
including an appropriate Assignment and Acceptance Agreement and,
notwithstanding Section 10.5.(c), shall pay to the Agent an assignment fee
in the amount of $6,000. The Defaulting Lender shall be entitled to
receive amounts owed to it by the Borrower or the Agent under the Loan
Documents which accrued prior to the date of the default by the Defaulting
Lender, to the extent the same are received by the Agent from or on behalf
of the Borrower. There shall be no recourse against any Lender or the
Agent for the payment of such sums except to the extent of the receipt of
payments from any other party or in respect of the Obligations. If, prior
to a Lender's acquisition of a Defaulting Lender's Commitment pursuant to
this subsection, such Defaulting Lender shall cure the event or condition
which caused it to become a Defaulting Lender and shall have paid all
amounts owing by it hereunder as a result thereof, then such Lender shall
no longer have the right to acquire such Defaulting Lender's Commitment.
SECTION 3.11. TAXES.
(a) TAXES GENERALLY. All payments by the Borrower in respect of any
of the Obligations shall be made free and clear of and without deduction
for any present or future excise, stamp or other taxes, fees, duties,
levies, imposts, charges, deductions, withholdings or other charges of any
nature whatsoever imposed by any taxing authority, but excluding
(i) franchise taxes, (ii) any taxes (other than withholding taxes) that
would not be imposed but for a connection between the Agent or a Lender and
the jurisdiction imposing such taxes (other than a connection arising
solely by virtue of the activities of the Agent or such Lender pursuant to
or in respect of this Agreement or any other Loan Document), (iii) any
withholding taxes payable with respect to payments hereunder or under any
other Loan Document under Applicable Law in effect on the Agreement Date,
(iv) any taxes imposed on or measured by any Lender's assets, net income,
receipts or branch profits and (v) any taxes arising after the Agreement
Date solely as a result of or attributable to a Lender changing its
designated Lending Office after the date such Lender becomes a party hereto
(such non-excluded items being collectively called "Taxes"). If any
withholding or deduction from any payment to be made by the Borrower
hereunder is required in respect of any Taxes pursuant to any Applicable
Law, then the Borrower will:
(i) pay directly to the relevant Governmental Authority the full
amount required to be so withheld or deducted;
(ii) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to
such Governmental Authority; and
(iii) pay to the Agent for its account or the account of the
applicable Lender, as the case may be, such additional amount or
amounts as is necessary to ensure that the net amount actually
received by the Agent or such Lender will equal the full amount that
the Agent or such Lender would have received had no such withholding
or deduction been required.
(b) TAX INDEMNIFICATION. If the Borrower fails to pay any Taxes when
due to the appropriate Governmental Authority or fails to remit to the
Agent, for its account or the account of the respective Lender, as the case
may be, the required receipts or other required documentary evidence, the
Borrower shall indemnify the Agent and the Lenders for any incremental
Taxes, interest or penalties that may become payable by the Agent or any
Lender as a result of any such failure. For purposes of this Section, a
distribution hereunder by the Agent or any Lender to or for the account of
any Lender shall be deemed a payment by the Borrower.
(c) TAX FORMS. Prior to the date that any Lender or participant
organized under the laws of a jurisdiction outside the United States of
America becomes a party hereto, such Person shall deliver to the Borrower
and the Agent such certificates, documents or other evidence, as required
by the Internal Revenue Code or Treasury Regulations issued pursuant
thereto (including Internal Revenue Service Forms 4224 or 1001, as
applicable, or appropriate successor forms), properly completed, currently
effective and duly executed by such Lender or participant establishing that
payments to it hereunder and under the other Loan Documents are (i) not
subject to United States Federal backup withholding tax or (ii) not subject
to United States Federal withholding tax under the Code because such
payment is either effectively connected with the conduct by such Lender or
participant of a trade or business in the United States or totally exempt
from United States Federal withholding tax by reason of the application of
the provisions of a treaty to which the United States is a party or such
Lender is otherwise exempt.
ARTICLE IV. YIELD PROTECTION, ETC.
Section 4.1. Additional Costs; Capital Adequacy.
(a) ADDITIONAL COSTS. The Borrower shall promptly pay to the Agent,
or the Agent for the account of a Lender, from time to time such amounts as
the Agent or such Lender may determine to be necessary to compensate such
Lender for any costs incurred by such Lender that it determines are
attributable to any reduction in any amount receivable by the Agent or such
Lender under this Agreement or any of the other Loan Documents in respect
of the maintenance by the Agent or such Lender of capital in respect of its
Commitment (such increases in costs and reductions in amounts receivable
being herein called "Additional Costs"), resulting from any Regulatory
Change that: (i) changes the basis of taxation of any amounts payable to
the Agent or such Lender under this Agreement or any of the other Loan
Documents in respect of its Commitment (other than taxes imposed on or
measured by the overall net income of the Agent or such Lender or of its
Lending Office by the jurisdiction in which such Lender has its principal
office or such Lending Office); or (ii) imposes or modifies any reserve,
special deposit or similar requirements relating to any extensions of
credit or other assets of, or any deposits with or other liabilities of,
such Lender, or any commitment of such Lender (including, without
limitation, the Commitment of the Agent or such Lender hereunder); or
(iii) has or would have the effect of reducing the rate of return on
capital of the Agent or such Lender to a level below that which the Agent
or such Lender could have achieved but for such Regulatory Change (taking
into consideration such Agent's or Lender's policies with respect to
capital adequacy).
(b) ADDITIONAL COSTS IN RESPECT OF LETTERS OF CREDIT. Without
limiting the obligations of the Borrower under the preceding subsection of
this Section (but without duplication), if as a result of any Regulatory
Change or any risk-based capital guideline or other requirement heretofore
or hereafter issued by any Governmental Authority there shall be imposed,
modified or deemed applicable any tax, reserve, special deposit, capital
adequacy or similar requirement against or with respect to or measured by
reference to Letters of Credit and the result shall be to increase the cost
to the Agent of issuing (or any Lender purchasing participations in) or
maintaining its obligation hereunder to issue (or a Lender to purchase
participations in) any Letter of Credit or reduce any amount receivable by
the Agent or any Lender hereunder in respect of any Letter of Credit, then,
upon demand by the Agent or such Lender, the Borrower shall pay immediately
to the Agent for its account or the account of such Lender, as applicable,
from time to time as specified by the Agent or a Lender, such additional
amounts as shall be sufficient to compensate the Agent or such Lender for
such increased costs or reductions in amount.
(c) NOTIFICATION AND DETERMINATION OF ADDITIONAL COSTS. Each of the
Agent and each Lender agrees to notify the Borrower of any event occurring
after the Agreement Date entitling the Agent or such Lender to compensation
under any of the preceding subsections of this Section as promptly as
practicable; provided, however, the failure of the Agent or any Lender to
give such notice shall not release the Borrower from any of its obligations
hereunder. The Agent and or such Lender agrees to furnish to the Borrower
a certificate setting forth the basis and amount of each request by the
Agent or such Lender for compensation under this Section. Determinations
by the Agent or any Lender of the effect of any Regulatory Change shall be
conclusive, provided that such determinations are made on a reasonable
basis and in good faith.
SECTION 4.2. CHANGE OF LENDING OFFICE.
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to any of its Obligations affected by
the matters or circumstances described in Sections 3.11. or 4.1. to reduce
the liability of the Borrower or avoid the results provided thereunder, so
long as such designation is not disadvantageous to such Lender as
determined by such Lender in its sole discretion, except that such Lender
shall have no obligation to designate a Lending Office located in the
United States of America.
ARTICLE V. CONDITIONS PRECEDENT
Section 5.1. Conditions Precedent.
The obligation of the Agent and the Lenders to effect or permit the
issuance of the Letters of Credit hereunder, and of the Agent to cause a
Confirming Bank to issue a Confirming Bank Letter of Credit, is subject to
the following conditions precedent:
(a) The Agent shall have received each of the following, in form and
substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the
parties hereto;
(ii) The Pledge Agreement executed by the Borrower and each of
the other parties thereto;
(iii) An opinion of Hull, Xxxxxx, Xxxxxx & Xxxxxxx, P.C. counsel
to the Borrower and the Subsidiaries, addressed to the Agent and the
Lenders, in substantially the form of Exhibit E;
(iv) an opinion of Xxxxxx Xxxx Xxxxxx Xxxx & Xxxxxxxxxx P.L.L.C.,
special North Carolina counsel to the Borrower and the Subsidiaries,
addressed to the Agent and the Borrower, regarding the enforceability
under North Carolina law of the Loan Documents (other than the
Mortgages) to which the Borrower or any Subsidiary is a party;
(v) an opinion of Xxxxxxxxx Traurig Hauffman Xxxxxx Xxxxx &
Quentel P.A., special Florida counsel to the Borrower and the
Subsidiaries, addressed to the Agent and the Borrower, regarding the
enforceability under Florida law of the Mortgages, taxes due in
connection therewith and such other matters as the Agent may request;
(vi) an opinion of bond counsel with respect to each issue of
Bonds, either addressed to the Agent and the Lenders or expressly
permitting them to rely on such opinion;
(vii) an opinion of counsel to each Issuer of each issue of
Bonds, either addressed to the Agent and the Lenders or expressly
permitting them to rely on such opinion, regarding such matters as the
Agent may request;
(viii) a copy of the opinion of counsel to the Target
Partnerships delivered under the Acquisition Agreement, accompanied by
a letter from such counsel permitting the Agent and the Lenders to
rely on such letter as if it were addressed to them;
(ix) copies of each of the following certified as true, correct
and complete by the chief financial officer or other duly authorized
officer of the Borrower: (A) the Acquisition Agreement; (B) each
Indenture (including all prior amendments or other supplements
thereto, as well as any such amendments or supplements being executed
and delivered in connection with the delivery of the Letters of
Credit); (C) each Placement Memorandum relating to any of the Bonds
(including any supplement or "wrap" prepared in connection with the
transactions relating to the delivery of the Letters of Credit);
(D) each Remarketing Agreement, if any, which will be in effect
immediately following the consummation of the transactions relating to
the delivery of the Letters of Credit; and (E) such other Bond
Documents as the Agent may request;
(x) The Articles of Incorporation of the Borrower certified as of
a recent date by the Secretary of State of the State of Georgia;
(xi) A good standing certificate with respect to the Borrower
issued as of a recent date by the Secretary of State of the State of
Georgia and certificates of qualification to transact business or
other comparable certificates issued by the Secretary of State (and
any state department of taxation, as applicable) of each state in
which the Borrower is required to be so qualified;
(xii) A certificate of incumbency signed by the Secretary or
Assistant Secretary of the Borrower with respect to each of the
officers of the Borrower authorized to execute and deliver the Loan
Documents to which the Borrower is a party;
(xiii) Copies (certified by the Secretary or Assistant Secretary
of the Borrower) of the bylaws of the Borrower and of all corporate
action taken by the Borrower to authorize the execution, delivery and
performance of the Loan Documents to which it is a party;
(xiv) A Guaranty executed by each Subsidiary;
(xv) If not previously delivered to the Agent pursuant to the
Credit Agreement, the articles of incorporation, articles of
organization, certificate of limited partnership or other comparable
organizational instrument (if any) of each Subsidiary certified as of
a recent date by the Secretary of State of the State of formation of
such Subsidiary;
(xvi) If not previously delivered to the Agent pursuant to the
Credit Agreement, a certificate of good standing or certificate of
similar meaning with respect to each Subsidiary issued as of a recent
date by the Secretary of State of the State of formation of each such
Subsidiary and certificates of qualification to transact business or
other comparable certificates issued by each Secretary of State (and
any state department of taxation, as applicable) of each state in
which such Subsidiary is required to be so qualified;
(xvii) If not previously delivered to the Agent pursuant to the
Credit Agreement, a certificate of incumbency signed by the Secretary
or Assistant Secretary (or other individual performing similar
functions) of each Subsidiary with respect to each of the officers of
such Subsidiary authorized to execute and deliver the Loan Documents
to which such Subsidiary is a party;
(xviii) If not previously delivered to the Agent pursuant to the
Credit Agreement, copies certified by the Secretary or Assistant
Secretary of each Subsidiary (or other individual performing similar
functions) of (i) the by-laws of such Subsidiary, if a corporation,
the operating agreement, if a limited liability company, the
partnership agreement, if a limited or general partnership, or other
comparable document in the case of any other form of legal entity and
(ii) all corporate, partnership, member or other necessary action
taken by such Subsidiary to authorize the execution, delivery and
performance of the Loan Documents to which it is a party;
(xix) Evidence that all insurance required to be maintained by
the Borrower and the Subsidiaries under the terms of the Loan
Documents and the Bond Documents is in effect;
(xx) The Fees, if any, then due under Section 3.5.;
(xxi) Mortgages executed by the applicable Target Partnership
encumbering the real estate associated with each series of Bonds;
(xxii) Surveys of each parcel of real property subject to a
Mortgage;
(xxiii) ALTA mortgagee's Policies of Title Insurance (or binders
to issue such a policy marked in a manner acceptable to the Agent) in
favor of the Agent for each parcel of real property subject to a
Mortgage in an amount at least equal to the initial stated amount of
the Letter of Credit issued in support of the Bonds associated with
such real estate, issued by a title insurance company acceptable to
the Agent, showing the fee simple title to the land and improvements
described in the applicable Mortgage as vested in the applicable
Target Partnership, and insuring that the lien granted by the
applicable Mortgage is a valid lien against said real property,
subject only to such restrictions, encumbrances, easements and
reservations as are acceptable to the Agent;
(xxiv) Favorable Phase I environmental audit reports regarding
each parcel of real property subject to a Mortgage prepared by a
nationally recognized firm of environmental engineers and either
addressed to the Agent and the Lenders or on which the Agent and the
Lenders are expressly permitted to rely;
(xxv) Affidavits of Title with respect to the "Property" under
and as defined each Mortgage;
(xxvi) UCC-1 Financing Statements executed by each of the Target
Partnership to be filed as fixture filings in the county in which the
related Mortgage was filed;
(xxvii) UCC-1 Financing Statements executed by each of the Target
Partnership to be filed with the Secretary of State of the State of
Florida covering the personal property subject to the related
Mortgage;
(xxviii) Payment of all title insurance premiums and filing fees
payable in connection with the above Mortgages and financing
statements;
(xxix) Such other documents, agreements and instruments as the
Agent on behalf of the Lenders may reasonably request; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or
the Lenders any event, condition, situation or status since the date
of the information contained in the financial and business
projections, budgets, pro forma data and forecasts concerning the
Borrower and its Subsidiaries delivered to the Agent and the Lenders
prior to the Agreement Date that has had or could reasonably be
expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other
arbitral, administrative or judicial proceeding shall be pending or
threatened which could reasonably be expected to (1) result in a
Material Adverse Effect or (2) restrain or enjoin, impose materially
burdensome conditions on, or otherwise materially and adversely affect
the ability of the Borrower to fulfill its obligations under the Loan
Documents;
(iii) The Borrower and its Subsidiaries shall have received all
approvals, consents and waivers, and shall have made or given all
necessary filings and notices as shall be required to consummate the
transactions contemplated hereby without the occurrence of any default
under, conflict with or violation of (1) any Applicable Law or (2) any
agreement, document or instrument to which the Borrower or any
Subsidiary is a party or by which any of them or their respective
properties is bound, except for such approvals, consents, waivers,
filings and notices the failure to obtain or receive could not
reasonably be likely to (A) have a Material Adverse Effect, or
(B) restrain or enjoin, impose materially burdensome conditions on, or
otherwise materially and adversely affect the ability of the Borrower
to fulfill its obligations under the Loan Documents; and
(iv) There shall not have occurred or exist any other material
disruption of financial or capital markets that could reasonably be
expected to materially and adversely affect the transactions
contemplated by the Loan Documents; and
(c) no Default or Event of Default shall have occurred and be
continuing as of the date of the issuance of the Letters of Credit or would
exist immediately after giving effect thereto; and
(d) the representations and warranties made or deemed made by the
Borrower and its Subsidiaries in the Loan Documents to which any of them is
a party, shall be true and correct on and as of the date of the issuance of
the Letters of Credit with the same force and effect as if made on and as
of such date except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate on and as
of such earlier date).
SECTION 5.2. CONDITIONS AS COVENANTS.
If the Agent issues the Letters of Credit prior to the satisfaction of
all conditions precedent set forth in Sections 5.1., the Borrower shall
nevertheless cause such condition or conditions to be satisfied within 5
Business Days after the date of the issuance of such Letters of Credit.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
Section 6.1. Representations and Warranties.
In order to induce the Agent and each Lender to enter into this
Agreement and to issue and permit the issuance of the Letters of Credit,
the Borrower represents and warrants to the Agent and each Lender as
follows:
(a) CREDIT AGREEMENT REPRESENTATIONS. The Credit Agreement
Representations are each true and correct on and as of the Effective Date
and are hereby incorporated herein by reference (together with the related
definitions) and made to the Agent and the Lenders on and as of the
Effective Date as if set forth herein in full.
(b) AUTHORIZATION OF LOAN DOCUMENTS AND ACQUISITION DOCUMENTS. The
Borrower, any Target Partnership and the other Subsidiaries each has the
right and power, and has taken all necessary action to authorize it to
execute, deliver and perform each of the Loan Documents and Acquisition
Documents to which it is a party in accordance with their respective terms
and to consummate the transactions contemplated hereby and thereby. The
Loan Documents and Acquisition Documents to which the Borrower, any Target
Partnership or any other Subsidiary is a party have been duly executed and
delivered by the duly authorized officers of the Borrower, such Target
Partnership or such other Subsidiary, as applicable, and each is a legal,
valid and binding obligation of the Borrower, such Target Partnership or
such other Subsidiary, as applicable, enforceable against it in accordance
with its respective terms.
(c) COMPLIANCE OF LOAN DOCUMENTS AND ACQUISITION DOCUMENTS WITH LAWS,
ETC. The execution, delivery and performance of the other Loan Documents
and Acquisition Documents to which the Borrower, any Target Partnership or
any other Subsidiary is a party in accordance with their respective terms
do not and will not, by the passage of time, the giving of notice, or
otherwise: (i) require any Governmental Approval or violate any Applicable
Law relating to the Borrower, any Target Partnership or any other
Subsidiary; (ii) conflict with, result in a breach of or constitute a
default under the articles of incorporation or the bylaws of the Borrower
or the organizational documents of any Target Partnership or any other
Subsidiary, or any indenture, agreement or other instrument to which the
Borrower or any Target Partnership or any other Subsidiary is a party or by
which it or any of its respective properties may be bound; or (iii) result
in or require the creation or imposition of any Lien upon or with respect
to any property now owned or hereafter acquired by the Borrower, any Target
Partnership or any other Subsidiary other than Liens in favor of the Agent
under the Collateral Documents.
(d) LITIGATION. There is no action, suit or proceeding pending
against, or to the knowledge of the Borrower, threatened against or
affecting the Borrower, any Target Partnership or any other Subsidiary
before any court or arbitrator or any Governmental Authority in which there
is a reasonable possibility of an adverse decision which could materially
adversely affect the ability of the Borrower to perform its obligations
under any of the Loan Documents or Acquisition Documents to which it, any
Target Partnership or any other Subsidiary is, or is to be, a party, or
which in any manner draws into question the validity of, or the
consummation of any of the transactions contemplated by, any of the Loan
Documents, Bond Documents or Acquisition Documents.
(e) PLACEMENT MEMORANDA. The information contained in each Placement
Memorandum, and any supplement or amendment thereto relating to the
Borrower, any Target Partnership following its acquisition by Affiliates of
the Borrower, any of the "projects" associated with any of the Bonds, any
Loan Document or any Bond Document as in effect on the Effective Date,
(a) shall as of the Effective Date be, accurate in all material respects
for the purposes for which its use is, or shall be, authorized and (b) does
not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements made therein, in the light
of the circumstances under which they are or were made, not misleading.
(f) REPRESENTATIONS AND WARRANTIES IN RELATED DOCUMENTS. Each
representation and warranty made or deemed made by the Borrower, any Target
Partnership or any other Subsidiary in the Acquisition Documents to which
it is a party are hereby made to and for the benefit of the Agent and the
Lenders as if the same were set forth herein in full.
(g) ACCURACY AND COMPLETENESS OF INFORMATION. All written
information, reports and other papers and data furnished to the Agent or
any Lender by, on behalf of, or at the direction of, the Borrower, any
Target Partnership or any other Subsidiary were, at the time the same were
so furnished, complete and correct in all material respects, to the extent
necessary to give the recipient a true and accurate knowledge of the
subject matter, or, in the case of financial statements, present fairly, in
accordance with GAAP consistently applied throughout the periods involved,
the financial position of the Persons involved as at the date thereof and
the results of operations for such periods. No fact is known to the
Borrower, any Target Partnership or any other Subsidiary which has had, or
may in the future have (so far as the Borrower, any Target Partnership or
any other Subsidiary can reasonably foresee), a Material Adverse Effect
which has not been set forth in such information, reports or other papers
or data or otherwise disclosed in writing to the Agent and the Lenders
prior to the Effective Date. No document furnished or written statement
made to the Agent or any Lender in connection with the negotiation,
preparation of execution of this Agreement or any of the other Loan
Documents contains or will contain any untrue statement of a fact material
to the creditworthiness of the Borrower, any Target Partnership or any
other Subsidiary or omits or will omit to state a material fact necessary
in order to make the statements contained therein not misleading.
(h) CERTAIN REPRESENTATIONS REGARDING THE BOND DOCUMENTS.
(i) AUTHORIZATION. The Borrower, any Target Partnership and the
other Subsidiaries each has the right and power, and has taken all
necessary action to authorize it to execute, deliver and perform each
of the Bond Documents to which it is a party in accordance with their
respective terms and to consummate the transactions contemplated
hereby and thereby. The Bond Documents to which the Borrower, any
Target Partnership or any other Subsidiary is a party have been duly
executed and delivered by the duly authorized officers of the
Borrower, such Target Partnership or such other Subsidiary, as
applicable, and each is a legal, valid and binding obligation of the
Borrower, such Target Partnership or such other Subsidiary, as
applicable, enforceable against it in accordance with its respective
terms.
(ii) COMPLIANCE OF BOND DOCUMENTS WITH LAWS, ETC. The execution,
delivery and performance of the Bond Documents to which the Borrower,
any Target Partnership or any other Subsidiary is a party in
accordance with their respective terms do not and will not, by the
passage of time, the giving of notice, or otherwise: (x) require any
Governmental Approval or violate any Applicable Law relating to the
Borrower, any Target Partnership or any other Subsidiary; (y) conflict
with, result in a breach of or constitute a default under the articles
of incorporation or the bylaws of the Borrower or the organizational
documents of any Target Partnership or any other Subsidiary, or any
indenture, agreement or other instrument to which the Borrower or any
Target Partnership or any other Subsidiary is a party or by which it
or any of its respective properties may be bound; or (z) result in or
require the creation or imposition of any Lien upon or with respect to
any property now owned or hereafter acquired by the Borrower, any
Target Partnership or any other Subsidiary other than Liens in favor
of the Agent under the Collateral Documents.
(iii) LITIGATION. There is no action, suit or proceeding pending
against, or to the knowledge of the Borrower, threatened against or
affecting the Borrower, any Target Partnership or any other Subsidiary
before any court or arbitrator or any Governmental Authority in which
there is a reasonable possibility of an adverse decision which could
materially adversely affect the ability of the Borrower to perform its
obligations under any of Bond Documents to which it, any Target
Partnership or any other Subsidiary is, or is to be, a party, or which
in any manner draws into question the validity of, or the consummation
of any of the transactions contemplated by, any of Bond Documents.
(iv) REPRESENTATIONS AND WARRANTIES IN BOND DOCUMENTS. Each
representation and warranty made or deemed made by the Borrower, any
Target Partnership or any other Subsidiary in any Bond Document to
which it is a party are hereby made to and for the benefit of the
Agent and the Lenders as if the same were set forth herein in full.
(v) LIMITATION REGARDING TARGET PARTNERSHIP. Any representation
or warranty in this subsection (h), as to actions of any Target
Partnership prior to its acquisition by Affiliates of the Borrower are
made only as to the best of the Borrower's knowledge after due
inquiry.
SECTION 6.2. SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC.
All statements contained in any certificate, financial statement or
other instrument delivered by or on behalf of the Borrower, any Target
Partnership or any other Subsidiary to the Agent or any Lender pursuant to
or in connection with this Agreement or any of the other Loan Documents
(including, but not limited to, any such statement made in or in connection
with any amendment thereto or any statement contained in any certificate,
financial statement or other instrument delivered by or on behalf of the
Borrower prior to the Agreement Date and delivered to the Agent or any
Lender in connection with closing the transactions contemplated hereby)
shall constitute representations and warranties made by the Borrower under
this Agreement. All representations and warranties made under this
Agreement and the other Loan Documents shall be deemed to be made at and as
of the Agreement Date and the Effective Date, except to the extent that
such representations and warranties expressly relate solely to an earlier
date (in which case such representations and warranties shall have been
true and accurate on and as of such earlier date) and except for changes in
factual circumstances specifically permitted hereunder. All such
representations and warranties shall survive the effectiveness of this
Agreement, the execution and delivery of the Loan Documents and the
issuance of the Letters of Credit.
ARTICLE VII. COVENANTS
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 10.7., all of the Lenders)
shall otherwise consent in the manner provided for in Section 10.7., the
Borrower shall comply with the following:
SECTION 7.1. INCORPORATION OF CERTAIN COVENANTS OF CREDIT AGREEMENT.
Except as may be otherwise provided in this Agreement, the Borrower
will perform, comply with and be bound by, for the benefit of the Agent and
the Lenders, each of its agreements, covenants and obligations contained in
Sections 7.1. through 7.7., Sections 7.9. through 7.12., Section 7.15,
Article VIII and Sections 9.1. through 9.13. of the Credit Agreement, each
of which (together with the related definitions and ancillary provisions)
is hereby incorporated herein by reference.
SECTION 7.2. ADDITIONAL SUBSIDIARIES.
Within 5 Business Days of any Person becoming a Subsidiary after the
Agreement Date, the Borrower shall deliver to the Agent each of the
following in form and substance satisfactory to the Agent: (a) an Accession
Agreement executed by such Subsidiary and (b) the items that would have
been delivered under subsections (iii) through (v), (xv) through (xix), and
(xxix), and if such Subsidiary is a Target Partnership, subsections (xxi)
through (xxvii), of Section 5.1.(a) if such Subsidiary had been one on the
Agreement Date.
SECTION 7.3. INFORMATION.
The Borrower shall furnish to the Agent (or to each Lender if so
provided below):
(a) promptly upon the giving or receipt thereof, a copy of any notice
given or received by any Target Partnership, the Borrower or any other
Subsidiary under any of the Bond Documents;
(b) prompt notice to the Agent and each Lender of the occurrence of
any Default or Event of Default; and
(c) from time to time and promptly upon each request, such data,
certificates, reports, statements, opinions of counsel, documents or
further information regarding the business, assets, liabilities, financial
condition, results of operations or business prospects of the Borrower or
any of its Subsidiaries as the Agent or any Lender may reasonably request.
SECTION 7.4. REMARKETING AGENT, PLACEMENT AGENT AND TRUSTEE.
To the extent required or permitted to do so under any Bond Document,
the Borrower shall not approve of any change in, or consent to the
replacement of, any Remarketing Agent (if applicable) or Trustee with
respect to any given issue of Bonds without the prior written consent of
the Agent.
SECTION 7.5. REGISTRATION OF BONDS.
The Borrower will cause all Bonds which it, any Target Partnership or
other Subsidiary acquires, or which any of such Persons has had acquired
for its account, to be registered forthwith in accordance with the
applicable terms of the relevant Indenture in the name of the Borrower and
pledged to the Agent under the Pledge Agreement.
SECTION 7.6. PERFORMANCE OF BOND DOCUMENTS.
The Borrower will, and will cause each Target Partnership and each
other Subsidiary to, pay and perform, at the time and in the manner
required thereunder, all of its respective obligations under any of the
Bond Documents to which it or any such Target Partnership or Subsidiary is
a party.
SECTION 7.7. MODIFICATIONS TO BOND DOCUMENTS; REDEMPTIONS, ETC..
The Borrower shall not, and shall not permit any Target Partnership or
other Subsidiary to, enter into, or consent to, any amendment or
modification to any Bond Documents to which it or any such Target
Partnership or Subsidiary is a party without the prior written consent of
the Agent if the effect of such amendment or modification would be to
change in any way the rights, benefits, duties, obligations or remedies of
or available to the Agent or any Lender under or in respect of any Loan
Document, any Letter of Credit or any Bond Document. The Borrower agrees
to deliver to the Agent notice of all proposed amendments or other
modifications of any of the Bond Documents. Not in limitation of the
foregoing, the Borrower shall not, and shall not permit any Target
Partnership or other Subsidiary to, do any of the following without the
Agent's prior written consent: (a) take any action which could result in a
mandatory redemption, optional redemption or mandatory repurchase of any of
the Bonds or (b) take any action which would change the manner in which
interest is determined on any of the Bonds.
SECTION 7.8. FURTHER ASSURANCES.
The Borrower shall, and shall cause each Target Partnership and each
other Subsidiary to, at the Borrower's cost and expense, upon the request
of the Agent, duly execute and deliver or cause to be duly executed and
delivered, to the Agent and the Lenders such further instruments, documents
and certificates, and do and cause to be done such further acts that may be
necessary or advisable in the opinion of the Agent to carry out more
effectively the provisions and purposes of this Agreement and the other
Loan Documents.
ARTICLE VIII. DEFAULT
Section 8.1. Events of Default.
Each of the following shall constitute an Event of Default, whatever
the reason for such event and whether it shall be voluntary or involuntary
or be effected by operation of Applicable Law or pursuant to any judgment
or order of any Governmental Authority:
(a) DEFAULT IN PAYMENT OF REIMBURSEMENT OBLIGATIONS. The Borrower
shall fail to pay when due (whether upon demand, at maturity, by reason of
acceleration or otherwise) any Reimbursement Obligation.
(b) DEFAULT IN PAYMENT OF OTHER AMOUNTS. The Borrower shall fail to
pay when due any of the other payment Obligations owing by the Borrower
under this Agreement or any other Loan Document and such failure shall
continue for a period of 3 Business Days after the earlier of (i) the date
upon which the Borrower or any Subsidiary obtains knowledge of such failure
or (ii) the date upon which the Borrower has received written notice of
such failure from the Agent.
(c) DEFAULT IN PERFORMANCE. (i) The Borrower or any Subsidiary shall
fail to perform or observe any term, covenant, condition or agreement on
its part to be performed or observed contained in Section 7.3.(b) or
(ii) the Borrower or any Subsidiary shall fail to perform or observe any
term, covenant, condition or agreement contained in this Agreement or any
other Loan Document to which it is a party and not otherwise mentioned in
this Section and in the case of this clause (ii) such failure shall
continue for a period of 30 days after the earlier of (x) the date upon
which the Borrower obtains knowledge of such failure or (y) the date upon
which the Borrower has received written notice of such failure from the
Agent.
(d) MISREPRESENTATIONS. Any written statement, representation or
warranty made or deemed made by or on behalf of the Borrower or any
Subsidiary under this Agreement or under any other Loan Document, or any
amendment hereto or thereto, or in any other writing or statement at any
time furnished or made or deemed made by or on behalf of the Borrower or
any Subsidiary to the Agent or any Lender, shall at any time prove to have
been incorrect or misleading in any material respect when furnished or
made.
(e) CREDIT AGREEMENT DEFAULT. A Credit Agreement Default shall
occur.
(f) VOLUNTARY BANKRUPTCY PROCEEDING. The Borrower, any Material
Subsidiary or any Other Relevant Subsidiary shall: (i) commence a
voluntary case under the Bankruptcy Code of 1978, as amended or other
federal bankruptcy laws (as now or hereafter in effect); (ii) file a
petition seeking to take advantage of any other Applicable Laws, domestic
or foreign, relating to bankruptcy, insolvency, reorganization, winding-up,
or composition or adjustment of debts; (iii) consent to, or fail to contest
in a timely and appropriate manner, any petition filed against it in an
involuntary case under such bankruptcy laws or other Applicable Laws or
consent to any proceeding or action described in the immediately following
subsection; (iv) apply for or consent to, or fail to contest in a timely
and appropriate manner, the appointment of, or the taking of possession by,
a receiver, custodian, trustee, or liquidator of itself or of a substantial
part of its property, domestic or foreign; (v) admit in writing its
inability to pay its debts as they become due; (vi) make a general
assignment for the benefit of creditors; (vii) make a conveyance fraudulent
as to creditors under any Applicable Law; or (viii) take any corporate or
similar action for the purpose of effecting any of the foregoing.
(g) INVOLUNTARY BANKRUPTCY PROCEEDING. A case or other proceeding
shall be commenced against the Borrower, any Material Subsidiary or any
Other Relevant Subsidiary, in any court of competent jurisdiction seeking:
(i) relief under the Bankruptcy Code of 1978, as amended or other federal
bankruptcy laws (as now or hereafter in effect) or under any other
Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts; or
(ii) the appointment of a trustee, receiver, custodian, liquidator or the
like of such Person, or of all or any substantial part of the assets,
domestic or foreign, of such Person.
(h) CONTEST OF LOAN DOCUMENTS. The Borrower or any Subsidiary shall
disavow, revoke or terminate any Loan Document to which it is a party or
shall otherwise challenge or contest in any action, suit or proceeding in
any court or before any Governmental Authority the validity or
enforceability of this Agreement or any other Loan Document.
(i) FAILURE OF SECURITY. The Agent shall, for any reason, cease to
have a valid, enforceable and perfected security interest or other lien in
any of the Collateral; PROVIDED, HOWEVER, the provisions of this subsection
regarding the perfection of any security interest or lien purportedly
granted by a Mortgage shall only apply after the filing thereof.
(j) LOAN DOCUMENTS. An Event of Default (as defined therein) shall
occur under any of the other Loan Documents.
SECTION 8.2. REMEDIES UPON EVENT OF DEFAULT.
Upon the occurrence of an Event of Default the following provisions
shall apply:
(a) ACCELERATION.
(i) AUTOMATIC. Upon the occurrence of an Event of Default
specified in Sections 8.1.(f) or 8.1.(g), (A) an amount equal to the
Stated Amount of all Letters of Credit then outstanding and (B) all of
the other Obligations of the Borrower, including, but not limited to,
the other amounts owed to the Lenders, and the Agent under this
Agreement or any of the other Loan Documents shall become immediately
and automatically due and payable by the Borrower without presentment,
demand, protest, or other notice of any kind, all of which are
expressly waived by the Borrower.
(ii) OPTIONAL. If any other Event of Default shall have occurred
and be continuing, the Agent may, and at the direction of the
Requisite Lenders shall: declare (A) an amount equal to the Stated
Amount of all Letters of Credit then outstanding and (B) all of the
other Obligations, including, but not limited to, the other amounts
owed to the Lenders and the Agent under this Agreement or any of the
other Loan Documents to be forthwith due and payable, whereupon the
same shall immediately become due and payable without presentment,
demand, protest or other notice of any kind, all of which are
expressly waived by the Borrower.
(b) LOAN DOCUMENTS. The Requisite Lenders may direct the Agent to,
and the Agent if so directed shall, exercise any and all of its rights
under any and all of the other Loan Documents.
(c) BOND DOCUMENTS. The Requisite Lenders may direct the Agent to,
and the Agent if so directed shall, exercise any and all of its rights
under any and all of the Bond Documents, including without limitation, any
right to cause a Trustee to declare the principal of the respective Bonds,
and all accrued and unpaid interest thereon, immediately due and payable to
the extent permitted under the applicable Indenture or other Bond
Documents.
(d) APPLICABLE LAW. The Requisite Lenders may direct the Agent to,
and the Agent if so directed shall, exercise all other rights and remedies
it may have under any Applicable Law.
(e) APPOINTMENT OF RECEIVER. To the extent permitted by Applicable
Law, the Agent and the Lenders shall be entitled to the appointment of a
receiver for the assets and properties of the Borrower and its
Subsidiaries, without notice of any kind whatsoever and without regard to
the adequacy of any security for the Obligations or the solvency of any
party bound for its payment, to take possession of all or any portion of
the business operations of the Borrower and its Subsidiaries and to
exercise such power as the court shall confer upon such receiver.
SECTION 8.3. ALLOCATION OF PROCEEDS.
If an Event of Default shall have occurred and be continuing and the
maturity of the Obligations has been accelerated, all payments received by
the Agent under any of the Loan Documents, in respect of any principal of
or interest on the Obligations or any other amounts payable by the Borrower
hereunder or thereunder, shall be applied by the Agent in the following
order and priority:
(a) amounts due to the Agent and the Lenders in respect of Fees and
expenses due under Section 10.2.;
(b) payment of accrued and unpaid interest on all Obligations, to be
applied for the ratable benefit of the parties to whom such interest is
owed;
(c) payment to the Agent of all unpaid Reimbursement Obligations, to
be applied in accordance with Section 2.1.(b);
(d) payment of all other Obligations then due and payable, to be
applied for the ratable benefit of the parties to whom such Obligations are
owed;
(e) amounts due to the Agent and the Lenders pursuant to
Sections 9.7. and 10.11.;
(f) deposited into the Collateral Account;
(g) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the Lenders;
and
(h) any amount remaining after application as provided above, shall
be paid to the Borrower or whomever else may be legally entitled thereto.
SECTION 8.4. COLLATERAL ACCOUNT.
(a) As collateral security for the prompt payment in full when due of
all Letter of Credit Liabilities, the Borrower hereby pledges and grants to
the Agent, for the benefit of the Agent and the Lenders as provided herein,
a security interest in all of its right, title and interest in and to the
Collateral Account and the balances from time to time in the Collateral
Account (including the investments and reinvestments therein provided for
below). The balances from time to time in the Collateral Account shall not
constitute payment of any Letter of Credit Liabilities until applied by the
Agent as provided herein. Anything in this Agreement to the contrary
notwithstanding, funds held in the Collateral Account shall be subject to
withdrawal only as provided in this Section and in Section 2.4.
(b) Amounts on deposit in the Collateral Account shall be invested
and reinvested by the Agent in such Cash Equivalents as the Agent shall
determine in its sole discretion. All such investments and reinvestments
shall be held in the name of and be under the sole dominion and control of
the Agent. The Agent shall exercise reasonable care in the custody and
preservation of any funds held in the Collateral Account and shall be
deemed to have exercised such care if such funds are accorded treatment
substantially equivalent to that which the Agent accords other funds
deposited with the Agent, it being understood that the Agent shall not have
any responsibility for taking any necessary steps to preserve rights
against any parties with respect to any funds held in the Collateral
Account.
(c) If an Event of Default shall have occurred and be continuing, the
Agent may (and, if instructed by the Requisite Lenders, shall) in its (or
their) discretion at any time and from time to time elect to liquidate any
such investments and reinvestments and credit the proceeds thereof to the
Collateral Account and apply or cause to be applied such proceeds and any
other balances in the Collateral Account to the payment of any of the
Letter of Credit Liabilities due and payable.
(d) If (i) no Default or Event of Default has occurred and is
continuing and (ii) all of the Letter of Credit Liabilities have been paid
in full, the Agent shall, from time to time, at the request of the
Borrower, deliver to the Borrower, against receipt but without any
recourse, warranty or representation whatsoever, such of the balances in
the Collateral Account as exceed the aggregate amount of Letter of Credit
Liabilities at such time. When all of the Obligations shall have been paid
in full and no Letters of Credit remain outstanding, the Agent shall
promptly deliver to the Borrower, against receipt but without any recourse,
warranty or representation whatsoever, the balances remaining in the
Collateral Account.
(e) The Borrower shall pay to the Agent from time to time such fees
as the Agent normally charges for similar services in connection with the
Agent's administration of the Collateral Account and investments and
reinvestments of funds therein.
SECTION 8.5. PERFORMANCE BY AGENT.
If the Borrower shall fail to perform any covenant, duty or agreement
contained in any of the Loan Documents, the Agent may perform or attempt to
perform such covenant, duty or agreement on behalf of the Borrower after
the expiration of any cure or grace periods set forth herein. In such
event, the Borrower shall, at the request of the Agent, promptly pay any
amount reasonably expended by the Agent in such performance or attempted
performance to the Agent, together with interest thereon at the applicable
Post-Default Rate from the date of such expenditure until paid.
Notwithstanding the foregoing, neither the Agent nor any Lender shall have
any liability or responsibility whatsoever for the performance of any
obligation of the Borrower under this Agreement or any other Loan Document.
SECTION 8.6. RIGHTS CUMULATIVE.
The rights and remedies of the Agent and the Lenders under this
Agreement and each of the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies which any of them may otherwise have
under Applicable Law. In exercising their respective rights and remedies
the Agent and the Lenders may be selective and no failure or delay by the
Agent or any of the Lenders in exercising any right shall operate as a
waiver of it, nor shall any single or partial exercise of any power or
right preclude its other or further exercise or the exercise of any other
power or right.
ARTICLE IX. THE AGENT
Section 9.1. Authorization and Action.
Each Lender hereby appoints and authorizes the Agent to take such
action as agent on such Lender's behalf and to exercise such powers under
this Agreement and the other Loan Documents as are specifically delegated
to the Agent by the terms and thereof, together with such powers as are
reasonably incidental thereto. The relationship between the Agent and the
Lenders shall be that of principal and agent only and nothing herein shall
be construed to deem the Agent a trustee or fiduciary for any Lender nor to
impose on the Agent duties or obligations other than those expressly
provided for herein. At the request of a Lender, the Agent will forward to
each Lender copies or, where appropriate, originals of the documents
delivered to the Agent pursuant to this Agreement or the other Loan
Documents. The Agent will also furnish to any Lender, upon the request of
such Lender, a copy of any certificate or notice furnished to the Agent by
the Borrower or any other Affiliate of the Borrower, pursuant to this
Agreement or any other Loan Document not already delivered to such Lender
pursuant to the terms of this Agreement or any such other Loan Document.
The Agent is hereby authorized on behalf of all of the Lenders, without the
necessity of any notice to or further consent from any the Lender, from
time to time prior to an Event of Default, to take any action with respect
to any Collateral or Loan Documents which may be necessary to perfect and
maintain perfected the security interest in and liens upon the Collateral
granted pursuant to any of the Collateral Documents. As to any matters not
expressly provided for by the Loan Documents (including, without
limitation, enforcement or collection of any of the Obligations), the Agent
shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the instructions of
the Requisite Lenders (or all of the Lenders if explicitly required under
any oher provision of this Agreement), and such instructions shall be
binding upon all Lenders and all holders of any of the Obligations;
provided, however, that, notwithstanding anything in this Agreement to the
contrary, the Agent shall not be required to take any action which is
contrary to this Agreement or any other Loan Document or Applicable Law.
Not in limitation of the foregoing, the Agent shall not exercise any right
or remedy it or the Lenders may have under any Loan Document upon the
occurrence of a Default or an Event of Default unless the Requisite Lenders
have so directed the Agent to exercise such right or remedy.
SECTION 9.2. AGENT'S RELIANCE, ETC.
Notwithstanding any other provision of any Loan Document, including
without limitation, the first sentence of Section 2.1.(d), neither the
Agent nor any of its directors, officers, agents, employees or counsel
shall be liable for any action taken or omitted to be taken by it or them
under or in connection with this Agreement, except for its or their own
gross negligence or willful misconduct. Without limiting the generality of
the foregoing, the Agent: (a) may consult with legal counsel (including its
own counsel or counsel for the Borrower), independent public accountants
and other experts selected by it and shall not be liable for any action
taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (b) makes no warranty or
representation to any Lender or any other Person and shall not be
responsible to any Lender or any other Person for any statements,
warranties or representations made by any Person in or in connection with
this Agreement or any other Loan Document; (c) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of any of this Agreement or any other Loan
Document or the satisfaction of any conditions precedent under this
Agreement or any Loan Document on the part of the Borrower or other Persons
or inspect the property, books or records of the Borrower or any other
Person; (d) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other Loan Document, any other instrument or document
furnished pursuant thereto or any Collateral covered thereby or the
perfection or priority of any Lien in favor of the Agent on behalf of the
Lenders in any such Collateral; (e) shall incur no liability under or in
respect of this Agreement or any other Loan Document by acting upon any
notice, consent, certificate or other instrument or writing (which may be
by telephone or telecopy) believed by it to be genuine and signed, sent or
given by the proper party or parties and (f) shall have no obligation
whatsoever to the Lenders or to any other Person to assure that the
Collateral exists or is owned by the Borrower or is cared for, protected or
insured or that the liens granted to the Agent pursuant to any Collateral
Document have been properly or sufficiently or lawfully created, perfected,
protected or enforced or are entitled to any particular priority, or to
exercise or to continue exercising at all or in any manner or under any
duty of care, disclosure or fidelity any of the rights, authorities and
powers granted or available to the Agent in this Section or in any of the
Loan Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission or event related thereto, the Agent may
act in any manner it may deem appropriate, in its sole discretion, given
the Agent's own interest in the Collateral as one of the Lenders and that
the Agent shall have no duty or liability whatsoever to the Lenders, except
for its gross negligence or willful misconduct.
SECTION 9.3. NOTICE OF DEFAULTS.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Agent has received
notice from a Lender or the Borrower referring to this Agreement,
describing with reasonable specificity such Default or Event of Default and
stating that such notice is a "notice of default." If any Lender becomes
aware of any Default or Event of Default, it shall promptly send to the
Agent such a "notice of default." Further, if the Agent receives such a
"notice of default", the Agent shall give prompt notice thereof to the
Lenders.
SECTION 9.4. FIRST UNION AS LENDER.
First Union, as a Lender, shall have the same rights and powers under
this Agreement and any other Loan Document as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include First Union
in each case in its individual capacity. First Union and its affiliates
may each accept deposits from, maintain deposits or credit balances for,
invest in, lend money to, act as trustee under indentures of, serve as
financial advisor to, and generally engage in any kind of business with the
Borrower, any Subsidiary or any other affiliate thereof as if it were any
other bank and without any duty to account therefor to the other Lenders.
Further, the Agent and any affiliate may accept fees and other
consideration from the Borrower for services in connection with this
Agreement and otherwise without having to account for the same to the other
Lenders.
SECTION 9.5. APPROVALS OF LENDERS.
All communications from the Agent to any Lender requesting such
Lender's determination, consent, approval or disapproval (a) shall be given
in the form of a written notice to such Lender, (b) shall be accompanied by
a description of the matter or issue as to which such determination,
approval, consent or disapproval is requested, or shall advise such Lender
where information, if any, regarding such matter or issue may be inspected,
or shall otherwise describe the matter or issue to be resolved, (c) shall
include, if reasonably requested by such Lender and to the extent not
previously provided to such Lender, written materials and a summary of all
oral information provided to the Agent by the Borrower in respect of the
matter or issue to be resolved, and (d) shall include the Agent's
recommended course of action or determination in respect thereof. Each
Lender shall reply promptly, but in any event within ten Business Days (or
such lesser period as may be required under the Loan Documents for the
Agent to respond). Unless a Lender shall give written notice to the Agent
that it objects to the recommendation or determination of the Agent
(together with a written explanation of the reasons behind such objection)
within the applicable time period for reply, such Lender shall be deemed to
have conclusively approved of or consented to such recommendation or
determination.
SECTION 9.6. LENDER CREDIT DECISION, ETC.
Each Lender expressly acknowledges and agrees that neither the Agent
nor any of its officers, directors, employees, agents, counsel,
attorneys-in-fact or other affiliates has made any representations or
warranties as to the financial condition, operations, creditworthiness,
solvency or other information concerning the business or affairs of the
Borrower, any Subsidiary or other Person to such Lender and that no act by
the Agent hereinafter taken, including any review of the affairs of the
Borrower, shall be deemed to constitute any such representation or warranty
by the Agent to any Lender. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, any other Lender or
counsel to the Agent, or any of their respective officers, directors,
employees and agents, and based on the financial statements of the
Borrower, the Subsidiaries or any other Affiliate thereof, and inquiries of
such Persons, its independent due diligence of the business and affairs of
the Borrower, the Subsidiaries and other Persons, its review of the Loan
Documents, the legal opinions required to be delivered to it hereunder, the
advice of its own counsel and such other documents and information as it
has deemed appropriate, made its own credit and legal analysis and decision
to enter into this Agreement and the transaction contemplated hereby. Each
Lender also acknowledges that it will, independently and without reliance
upon the Agent, any other Lender or counsel to the Agent or any of their
respective officers, directors, employees and agents, and based on such
review, advice, documents and information as it shall deem appropriate at
the time, continue to make its own decisions in taking or not taking action
under the Loan Documents. Except for notices, reports and other documents
and information expressly required to be furnished to the Lenders by the
Agent under this Agreement or any of the other Loan Documents, the Agent
shall have no duty or responsibility to provide any Lender with any credit
or other infomation concerning the business, operations, property,
financial and other condition or creditworthiness of the Borrower, any
Subsidiary or any other Affiliate thereof which may come into possession of
the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or other affiliates. Each Lender acknowledges that the
Agent's legal counsel in connection with the transactions contemplated by
this Agreement is only acting as counsel to the Agent and is not acting as
counsel to such Lender.
SECTION 9.7. INDEMNIFICATION OF AGENT.
Each Lender agrees to indemnify the Agent (to the extent not
reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so) pro rata in accordance with such Lender's respective
Commitment Percentage, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may at any
time be imposed on, incurred by, or asserted against the Agent (in its
capacity as "Agent" but not as a "Lender") in any way relating to or
arising out of the Loan Documents, the Bond Documents, any Confirming Bank
Letter of Credit or related Confirming Bank Reimbursement Agreement, any
transaction contemplated hereby or thereby or any action taken or omitted
by the Agent under the Loan Documents (collectively, "Indemnifiable
Amounts"); provided, however, that no Lender shall be liable for any
portion of such Indemnifiable Amounts to the extent resulting from the
Agent's gross negligence or willful misconduct or if the Agent fails to
follow the written direction of the Requisite Lenders unless such failure
is pursuant to the advice of counsel that following such written direction
would likely violate Applicable Law or the terms of the Loan Documents and
of which the Lenders have received notice. Without limiting the generality
of the foregoing, each Lender agrees to reimburse the Agent promptly upon
demand for its ratable share of any out-of-pocket expenses (including
reasonable counsel fees of the counsel(s) of the Agent's own choosing)
reasonably incurred by the Agent in connection with the preparation,
execution, administration, or enforcement of, or legal advice with respect
to the rights or responsibilities of the parties under, the Loan Documents,
any suit or action brought by the Agent to enforce the terms of the Loan
Documents and/or collect any Obligations, and any "lender liability" suit
or claim brought against the Agent and/or the Lenders, to the extent that
the Agent is not reimbursed forsuch expenses by the Borrower. Such
out-of-pocket expenses (including counsel fees) shall be advanced by the
Lenders on the request of the Agent notwithstanding any claim or assertion
that the Agent is not entitled to indemnification hereunder (other than any
claim or assertion that the Agent is not entitled to such out-of-pocket
expenses as a result of its gross negligence or willful misconduct or
failure to follow the written direction of the Requisite Lenders in the
absence of the advice of counsel referred to above) upon receipt of an
undertaking by the Agent that the Agent will reimburse the Lenders if it is
actually and finally determined by a court of competent jurisdiction that
the Agent is not so entitled to indemnification. The agreements in this
Section shall survive the payment of all amounts payable hereunder or under
the other Loan Documents and the termination of this Agreement. If the
Borrower shall reimburse the Agent for any Indemnifiable Amount following
payment by any Lender to the Agent in respect of such Indemnifiable Amount
pursuant to this Section, the Agent shall share such reimbursement on a
ratable basis with each Lender making any such payment.
ARTICLE X. MISCELLANEOUS
Section 10.1. Notices.
Unless otherwise provided herein, communications provided for
hereunder shall be in writing and shall be mailed, telecopied or delivered
as follows:
If to the Borrower:
Merry Land & Investment Company, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Vice President - Finance
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to the Agent:
First Union National Bank
Atlanta Real Estate Lending Group
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
and
First Union Capital Markets Group
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xx. Xxxxx Xxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to a Lender:
To such Lender's address or telecopy number, as applicable, set
forth on its signature page hereto or in the applicable
Assignment and Acceptance Agreement.
or, as to each party at such other address as shall be designated by such
party in a written notice to the other parties delivered in compliance with
this Section. All such notices and other communications shall be effective
(i) if mailed, when received; (ii) if telecopied, when transmitted with
confirmation of transmission; or (iii) if hand delivered, when delivered.
Notwithstanding the immediately preceding sentence, all notices or
communications to the Agent or any Lender under Article II. shall be
effective only when actually received. Neither the Agent nor any Lender
shall incur any liability to the Borrower (nor shall the Agent incur any
liability to the Lenders) for acting upon any telephonic notice referred to
in this Agreement which the Agent or such Lender, as the case may be,
believes in good faith to have been given by a Person authorized to deliver
such notice or for otherwise acting in good faith under hereunder.
SECTION 10.2. EXPENSES.
The Borrower agrees (a) to pay or reimburse the Agent for all of its
reasonable out-of-pocket costs and expenses incurred in connection with the
preparation, negotiation and execution of, and any amendment, supplement or
modification to, any of the Loan Documents (including due diligence
expenses and travel expenses relating to closing), any Confirming Bank
Letter of Credit or related Confirming Bank Reimbursement Agreement and the
consummation of the transactions contemplated thereby, including the
reasonable fees and disbursements of counsel to the Agent, (b) to pay or
reimburse the Agent and the Lenders for all their costs and expenses
incurred in connection with the enforcement or preservation of any rights
under the Loan Documents, including the reasonable fees and disbursements
of their respective counsel (including the allocated fees and expenses of
in-house counsel) and any payments in indemnification or otherwise payable
by the Lenders to the Agent pursuant to the Loan Documents, (c) to pay,
indemnify and hold the Agent and the Lenders harmless from any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any failure to pay or delay in paying, documentary, stamp,
excise and other similar taxes, if any, which may be payable or determined
to be payable in connection with the execution, delivery and/or recording
of any of the Loan Documents, or consummation of any amendment, supplement
or modification of, or any waiver or consent under or in respect of, any
Loan Document and (d) to the extent not already covered by any of the
preceding subsections, to pay or reimburse the Agent and the Lenders for
all their costs and expenses incurred in connection with any bankruptcy or
other proceeding of the type described in Sections 8.1.(e) or 8.1.(f),
including the reasonable fees and disbursements of counsel to the Agent and
any Lender, whether such fees and expenses are incurred prior to, during or
after the commencement of such proceeding or the confirmation or conclusion
of any such proceeding.
SECTION 10.3. SETOFF.
Subject to Section 3.3. and in addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such
rights, the Agent, each Lender and each Participant is hereby authorized by
the Borrower, at any time or from time to time, without notice to the
Borrower or to any other Person, any such notice being hereby expressly
waived, to set-off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, indebtedness evidenced
by certificates of deposit, whether matured or unmatured) and any other
indebtedness at any time held or owing by the Agent, such Lender or any
affiliate of the Agent or such Lender, to or for the credit or the account
of the Borrower against and on account of any of the Obligations,
irrespective of whether or not any or all of the Obligations have been
declared to be due and payable as permitted by Section 8.2., and although
such obligations shall be contingent or unmatured.
SECTION 10.4 ARBITRATION.
UPON DEMAND OF ANY PARTY HERETO, WHETHER MADE BEFORE OR AFTER
INSTITUTION OF ANY JUDICIAL PROCEEDING, ANY CLAIM OR CONTROVERSY ARISING
OUT OF, OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS
("DISPUTES") BETWEEN OR AMONG ANY SUCH PARTIES SHALL BE RESOLVED BY BINDING
ARBITRATION CONDUCTED UNDER AND GOVERNED BY THE COMMERCIAL FINANCIAL
DISPUTES ARBITRATION RULES (THE "ARBITRATION RULES") OF THE AMERICAN
ARBITRATION ASSOCIATION (THE "AAA") AND THE FEDERAL ARBITRATION ACT.
DISPUTES MAY INCLUDE, WITHOUT LIMITATION, TORT CLAIMS, COUNTERCLAIMS,
DISPUTES AS TO WHETHER A MATTER IS SUBJECT TO ARBITRATION, CLAIMS BROUGHT
AS CLASS ACTIONS, AND CLAIMS ARISING FROM LOAN DOCUMENTS EXECUTED IN THE
FUTURE. A JUDGMENT UPON THE AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. NOTWITHSTANDING THE FOREGOING, THIS ARBITRATION PROVISION
DOES NOT APPLY TO DISPUTES UNDER OR RELATED TO INTEREST RATE AGREEMENTS TO
WHICH ANY LENDER IS A PARTY. ALL ARBITRATION HEARINGS SHALL BE CONDUCTED
IN CHARLOTTE, NORTH CAROLINA. A HEARING SHALL BEGIN WITHIN 90 DAYS OF
DEMAND FOR ARBITRATION AND ALL HEARINGS SHALL CONCLUDED WITHIN 120 DAYS OF
DEMAND FOR ARBITRATION. THESE TIME LIMITATIONS MAY NOT BE EXTENDED UNLESS
A PARTY SHOWS CAUSE FOR EXTENSION AND THEN NO MORE THAN A TOTAL EXTENSION
OF 60 DAYS. THE EXPEDITED PROCEDURES SET FORTH IN RULE 51 ET. SEQ. OF THE
ARBITRATION RULES SHALL BE APPLICABLE TO CLAIMS OF LESS THAN $1,000,000.
ARBITRATORS SHALL BE LICENSED ATTORNEYS SELECTED FROM THE COMMERCIAL
FINANCIAL DISPUTE ARBITRATION PANEL OF THE AAA. THE PARTIES DO NOT WAIVE
ANY APPLICABLE LAWS EXCEPT AS PROVIDED HEREIN. NOTWITHSTANDING THE
PRECEDING BINDING ARBITRATION PROVISIONS, THE PARTIES AGREE TO PRESERVE,
WITHOUT DIMINUTION, THE FOLLOWING REMEDIES THAT THE AGENT OR THE LENDERS
MAY EXERCISE BEFORE OR AFTER AN ARBITRATION PROCEEDING IS BROUGHT. SUBJECT
TO THE OTHER TERMS HEREOF, THE AGENT AND THE LENDERS SHALL HAVE THE RIGHT
TO PROCEED IN ANY COURT OF PROPER JURISDICTION OR BY SELF-HELP TO EXERCISE
OR PROSECUTE THE FOLLOWING REMEDIES, AS APPLICABLE: (I) ALL RIGHTS TO
FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY OR OTHER SECURITY BY
EXERCISING A POWER OF SALE OR UNDER APPLICABLE LAW BY JUDICIAL FORECLOSURE
INCLUDING A PROCEEDING TO CONFIRM THE SALE; (II) ALL RIGHTS OF SELF-HELP
INCLUDING PEACEFUL OCCUPATION OF REAL PROPERTY AND COLLECTION OF RENTS,
SET-OFF, AND PEACEFUL POSSESSION OF PERSONAL PROPERTY; (III) OBTAINING
PROVISIONAL OR ANCILLARY REMEDIES INCLUDING INJUNCTIVE RELIEF,
SEQUESTRATION, GARNISHMENT, ATTACHMENT, APPOINTMENT OF RECEIVER AND FILING
AN INVOLUNTARY BANKRUPTCY PROCEEDING; AND (IV) WHEN APPLICABLE, A JUDGMENT
BY CONFESSION OF JUDGMENT. ANY CLAIM OR CONTROVERSY WITH REGARD TO PARTIES
ENTITLEMENT TO SUCH REMEDIES IS A DISPUTE. THE PARTIES HERETO ACKNOWLEDGE
THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED ANY
RIGHT THEY MAY HAVE TO A JURY TRIAL WITH REGARD TO A DISPUTE.
SECTION 10.5. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrower may not assign or otherwise transfer any
of its rights under this Agreement without the prior written consent of all
Lenders.
(b) Any Lender may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests in
its Commitment or the Obligations owing to such Lender; provided, however,
(i) any such participating interest must be for a constant and not a
varying percentage interest, (ii) no Lender may grant a participating
interest in its Commitment, or if the Commitments have been terminated, the
aggregate outstanding principal balance of Letter of Credit Liabilities and
other Obligations held by it, in an amount less than $10,000,000 and
(iii) after giving effect to any such participation by a Lender, the amount
of its Commitment, or if the Commitments have been terminated, the
aggregate outstanding principal balance of Letter of Credit Liabilities and
other Obligations held by it, in which it has not granted any participating
interests must be at least $10,000,000. Except as otherwise provided in
Section 10.3., no Participant shall have any rights or benefits under this
Agreement or any other Loan Document. In the event of any such grant by a
Lender of a participating interest to a Participant, such Lender shall
remain responsible for the performance of its obligations hereunder, and
the Borrower and the Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under
this Agreement. Any agreement pursuant to which any Lender may grant such
a participating interest shall provide that such Lender shall retain the
sole right and responsibility to enforce the obligations of the Borrower
hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement;
provided, however, such Lender may agree with the Participant that it will
not, without the consent of the Participant, agree to (i) increase, or
extend the term or extend the time or waive any requirement for the
reduction or termination of, such Lender's Commitment, (ii) extend the date
fixed for the payment of principal of or interest on the Obligations owing
to such Lender, (iii) reduce the amount of any such payment of principal,
or (iv) reduce the rate at which interest is payable thereon. An
assignment or other transfer which is not permitted by subsection (c) below
shall be given effect for purposes of this Agreement only to the extent of
a participating interest granted in accordance with this subsection (b).
The selling Lender shall notify the Agent and the Borrower of the sale of
any participation hereunder and the terms thereof.
(c) Any Lender may with the prior written consent of the Agent and,
so long as no Default or Event of Default shall have occurred and be
continuing, the Borrower (which consent, of the Borrower shall not be
unreasonably withheld) assign to one or more Eligible Assignees (each an
"Assignee") all or a portion of its Commitment and its other rights and
obligations under this Agreement; provided, however, (i) no such consent by
the Borrower shall be required in the case of any assignment to another
Lender or any affiliate of such Lender or another Lender; (ii) any partial
assignment shall be in an amount at least equal to $10,000,000 and after
giving effect to such assignment the assigning Lender retains a Commitment,
or if the Commitments have been terminated, holds Obligations having an
aggregate outstanding principal balance, of at least $10,000,000;
(iii) each such assignment shall be effected by means of an Assignment and
Acceptance Agreement and (iv) the Agent, in its capacity as a Lender, shall
not effect any assignment of its Commitment, if after giving effect
thereto, the amount of such Commitment would be less than the amount of any
other Lender's Commitment. Upon execution and delivery of such instrument
and payment by such Assignee to such transferor Lender of an amount equal
to the purchase price agreed between such transferor Lender and such
Assignee, such Assignee shall be deemed to be a Lender party to this
Agreement as of the effective date of the Assignment and Acceptance
Agreement and shall have all the rights and obligations of a Lender with a
Commitment as set forth in such Assignment and Acceptance Agreement, and
the transferor Lender shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall
be required. In connection with any such assignment, the transferor Lender
shall pay to the Agent an administrative fee for processing such assignment
in the amount of $3,000.
(d) The Agent shall maintain at the Principal Office a copy of each
Assignment and Acceptance Agreement delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and
the Commitment of each Lender from time to time (the "Register"). The
Agent shall give each Lender and the Borrower notice of the assignment by
any Lender of its rights as contemplated by this Section. The Borrower,
the Agent and the Lenders may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this Agreement. The
Register and copies of each Assignment and Acceptance Agreement shall be
available for inspection by the Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice to the Agent. Upon
its receipt of an Assignment and Acceptance Agreement executed by an
assigning Lender, the Agent shall, if such Assignment and Acceptance
Agreement has been completed and if the Agent receives the processing and
recording fee described in subsection (c) above, (i) accept such Assignment
and Acceptance Agreement, (ii) record the information contained therein in
the Register, and (iii) give prompt notice thereof to the Borrower.
(e) In addition to the assignments and participations permitted under
the foregoing provisions of this Section, any Lender may assign and pledge
all or any portion of the Obligations owing to such Lender to any Federal
Reserve Bank as collateral security pursuant to Regulation A and any
Operating Circular issued by such Federal Reserve Bank, and such
Obligations shall be fully transferable as provided therein. No such
assignment shall release the assigning Lender from its obligations
hereunder.
(f) A Lender may furnish any information concerning the Borrower, or
any Subsidiaries in the possession of such Lender from time to time to
Assignees and Participants (including prospective Assignees and
Participants) subject to compliance with Section 10.10.
(g) Anything in this Section to the contrary notwithstanding, no
Lender may assign or participate any interest in its Commitment or any
Obligation owing to it hereunder to the Borrower or any Subsidiary or
Affiliate of the Borrower.
(h) Each Lender agrees that, without the prior written consent of the
Borrower and the Agent, it will not make any assignment hereunder in any
manner or under any circumstances that would require registration or
qualification of, or filings in respect of, any Loan Document under the
Securities Act or any other securities laws United States of America or of
any other jurisdiction.
SECTION 10.6. REPLACEMENT OF LENDERS.
If a Lender requests compensation pursuant to Section 3.11. or
Section 4.1. and the Requisite Lenders are not also doing the same, the
Borrower may, subject to the prior consent of the Agent, demand that such
Lender (the "Affected Lender"), and upon such demand the Affected Lender
shall promptly, assign its Commitment and all of the Obligations owing to
it to an Eligible Assignee subject to and in accordance with the provisions
of Section 10.5.(c). Each of the Agent and the Affected Lender shall
reasonably cooperate in effectuating the replacement of an Affected Lender
under this Section, but at no time shall the Agent, the Affected Lender or
any other Lender be obligated in any way whatsoever to initiate any such
replacement or to assist in finding an Eligible Assignee. The exercise by
the Borrower of its rights under this Section shall be at the Borrower's
sole cost and expenses and at no cost or expense to the Agent, the Affected
Lender or any of the other Lenders. The terms of this Section shall not in
any way limit the Borrower's obligation to pay to any Affected Lender
compensation owing to such Affected Lender pursuant to Section 3.11. or
Section 4.1.
SECTION 10.7. AMENDMENTS.
Except as otherwise expressly provided in this Agreement, any consent
or approval required or permitted by this Agreement or in any Loan Document
to be given by the Lenders may be given, and any term of this Agreement or
of any other Loan Document may be amended, and the performance or
observance by the Borrower or any Subsidiary of any terms of this Agreement
or such other Loan Document or the continuance of any Default or Event of
Default may be waived (either generally or in a particular instance and
either retroactively or prospectively) with, but only with, the written
consent of the Requisite Lenders (and, in the case of an amendment to any
Loan Document, the written consent of the Borrower). Notwithstanding the
foregoing, no amendment, waiver or consent shall, unless in writing, and
signed by all of the Lenders (or the Agent at the written direction of all
of the Lenders), do any of the following: (i) increase the Commitments of
the Lenders or subject the Lenders to any additional obligations;
(ii) reduce the principal of, or interest rates that have accrued or that
will be charged on the outstanding principal amount of, any Obligations;
(iii) reduce the amount of any Fees payable hereunder; (iv) postpone any
date fixed for any payment of Fees or any other Obligations; (v) change the
Commitment Percentages; (vi) amend this Section or amend the definitions of
the terms used in this Agreement or the other Loan Documents insofar as
such definitions affect the substance of this Section; (vii) release any
Guarantor that is a Material Subsidiary from its obligations under its
Guaranty or (viii) modify the definition of the term "Requisite Lenders" or
modify in any other manner the number or percentage of the Lenders required
to make any determinations or waive any rights hereunder or to modify any
provision hereof. Further, no amendment, waiver or consent unless in
writing and signed by the Agent, in addition to the Lenders required
hereinabove to take such action, shall affect the rights or duties of the
Agent under this Agreement or any of the other Loan Documents. No waiver
shall extend to or affect any obligation not expressly waived or impair any
right consequent thereon and any amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose set
forth therein. No course of dealing or delay or omission on the part of
the Agent or any Lender in exercising any right shall operate as a waiver
thereof or otherwise be prejudicial thereto. Except as otherwise
explicitly provided for herein or in any other Loan Document, no notice to
or demand upon the Borrower shall entitle the Borrower to other or further
notice or demand in similar or other circumstances.
SECTION 10.8. CREDIT AGREEMENT PROVISIONS.
(a) Notwithstanding any provision of this Agreement or any other Loan
Document to the contrary, the Agent, the Lenders and the Borrower agree
that on or after the date hereof any amendment to, or waiver of, (i) the
Credit Agreement Representations, (ii) the Credit Agreement Defaults or
(iii) the covenants from the Credit Agreement referred to in Section 7.1.,
which has been consented to by the Requisite Lenders (or all Lenders if
such amendment or waiver required the consent of all Lenders (as defined in
the Credit Agreement) under the applicable terms of the Credit Agreement)
in writing, shall be deemed to be incorporated herein by reference and
shall become effective hereunder when such amendment or waiver becomes
effective thereunder, without any further action necessary by the Borrower,
the Lenders or the Agent. Any such amendment or waiver shall be effective
only in the specific instance and for the specific purpose for which given.
The Borrower agrees to promptly provide the Agent with a copy of such
amendment or waiver if the Agent is not also acting as "Agent" under the
Credit Agreement.
(b) The Credit Agreement Representations, the Credit Agreement
Defaults and the covenants from the Credit Agreement referred to in
Section 7.1. incorporated herein by reference and any definitions or other
terms or provisions of the Credit Agreement incorporated herein by
reference, will be deemed to continue in effect for the benefit of the
Agent and the Lenders (notwithstanding the termination of the Credit
Agreement) until this Agreement has terminated and all Obligations have
been indefeasibly paid in full, including, without limitation, whether or
not the Credit Agreement remains in effect or whether or not the Credit
Agreement is amended, restated or terminated after the date hereof. If
after the date hereof, the Credit Agreement is terminated, then references
to the Credit Agreement shall continue to be references to the Credit
Agreement as provided in the immediately preceding sentence. For purposes
of the foregoing, (i) references in the provisions of the Credit Agreement
incorporated herein by reference to the "Borrower" shall refer to the
Borrower; (ii) references therein to the "Agent" shall refer to the Agent;
(iii) references therein to the "Lenders" or a "Lender" shall refer to the
Lenders and a Lender, respectively; and (iii) the terms "Agreement,"
"hereto" and "hereof" when used in the provisions of the Credit Agreement
incorporated herein by referenced shall refer to this Agreement.
SECTION 10.9. NONLIABILITY OF AGENT AND LENDERS.
The relationship between the Borrower and the Lenders and the Agent
shall be solely that of borrower and lender. Neither the Agent nor any
Lender shall have any fiduciary responsibilities to the Borrower and no
provision in this Agreement or in any of the other Loan Documents, and no
course of dealing between or among any of the parties hereto, shall be
deemed to create any fiduciary duty owing by the Agent or any Lender to any
Lender, the Borrower or any Subsidiary. Neither the Agent nor any Lender
undertakes any responsibility to the Borrower to review or inform the
Borrower of any matter in connection with any phase of the Borrower's
business or operations.
SECTION 10.10. CONFIDENTIALITY.
Except as otherwise provided by Applicable Law, the Agent and each
Lender shall utilize all non-public information obtained pursuant to the
requirements of this Agreement which has been identified as confidential or
proprietary by the Borrower in accordance with its customary procedure for
handling confidential information of this nature and in accordance with
safe and sound banking practices but in any event may make disclosure:
(a) to any of their respective affiliates (provided they shall agree to
keep such information confidential in accordance with the terms of this
Section); (b) as reasonably required by any bona fide Assignee, Participant
or other transferee in connection with the contemplated transfer of any
Commitment or participations therein as permitted hereunder (provided they
shall agree to keep such information confidential in accordance with the
terms of this Section); (c) as required by any Governmental Authority or
representative thereof or pursuant to legal process; (d) to the Agent's or
such Lender's independent auditors and other professional advisors
(provided they shall be notified of the confidential nature of the
information); and (e) after the happening and during the continuance of an
Event of Default, to any other Person, in connection with the exercise by
the Agent or the Lenders of rights hereunder or under any of the other Loan
Documents.
SECTION 10.11. INDEMNIFICATION.
(a) The Borrower shall and hereby agrees to indemnify, defend and
hold harmless the Agent, any affiliate of the Agent and each of the Lenders
and their respective directors, officers, shareholders, agents, employees
and counsel (each referred to herein as an "Indemnified Party") from and
against any and all losses, costs, claims, damages, liabilities,
deficiencies, judgments or expenses of every kind and nature (including,
without limitation, amounts paid in settlement, court costs and the fees
and disbursements of counsel incurred in connection with any litigation,
investigation, claim or proceeding or any advice rendered in connection
therewith) (the foregoing items referred to herein as "Claims and
Expenses") incurred by an Indemnified Party in connection with, arising out
of, or by reason of, any suit, cause of action, claim, arbitration,
investigation or settlement, consent decree or other proceeding (the
foregoing referred to herein as an "Indemnity Proceeding") which is in any
way related directly or indirectly to: (i) this Agreement, any other Loan
Document, any Confirming Bank, Letter of Credit, any Confirming Bank
Reimbursement Agreement or the transactions contemplated hereby or thereby;
(ii) the issuance of the Letters of Credit hereunder; (iii) any actual or
proposed use by the Borrower or any beneficiary of the Letters of Credit;
(iv) the Agent's or any Lender's entering into this Agreement; (v) the fact
that the Agent and the Lenders have established the credit facility
evidenced hereby in favor of the Borrower; (vi) the fact that the Agent and
the Lenders are creditors of the Borrower and have or are alleged to have
information regarding the financial condition, strategic plans or business
operations of the Borrower and the Subsidiaries; (vii) the fact that the
Agent and the Lenders are material creditors of the Borrower and are
alleged to influence directly or indirectly the business decisions or
affairs of the Borrower and the Subsidiaries or their financial condition;
(viii) the exercise of any right or remedy the Agent or the Lenders may
have under this Agreement or the other Loan Documents; provided, however,
that the Borrower shall not be obligated to indemnify any Indemnified Party
for any acts or omissions of such Indemnified Party in connection with
matters described in this clause (viii) that constitute gross negligence or
willful misconduct; and (ix) any violation or non-compliance by the
Borrower or any Subsidiary of any Applicable Law including, but not limited
to, any Indemnity Proceeding commenced by (A) the Internal Revenue Service
or state taxing authority or (B) any Governmental Authority or other Person
under any Applicable Laws relating to the environment, including any
Indemnity Proceeding commenced by a Governmental Authority or other Person
seeking remedial or other action to cause the Borrower or its Subsidiaries
(or its respective properties) (or the Agent and/or the Lenders as
successors to the Borrower) to be in compliance with such Applicable Laws.
(b) The Borrower's indemnification obligations under this Section
shall apply to all Indemnity Proceedings arising out of, or related to, the
foregoing whether or not an Indemnified Party is a named party in such
Indemnity Proceeding. In this connection, this indemnification shall cover
all costs and expenses of any Indemnified Party in connection with any
deposition of any Indemnified Party or compliance with any subpoena
(including any subpoena requesting the production of documents). This
indemnification shall, among other things, apply to any Indemnity
Proceeding commenced by other creditors of the Borrower or any Subsidiary,
any shareholder of the Borrower or any Subsidiary (whether such
shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivately on behalf of the Borrower), any account
debtor of the Borrower or any Subsidiary or by any Governmental Authority.
This indemnification shall apply to any Indemnity Proceeding arising during
the pendency of any bankruptcy proceeding filed by or against the Borrower
and/or any Subsidiary.
(c) All out-of-pocket fees and expenses of, and all amounts paid to
third-persons by, an Indemnified Party shall be advanced by the Borrower at
the request of such Indemnified Party notwithstanding any claim or
assertion by the Borrower that such Indemnified Party is not entitled to
indemnification hereunder upon receipt of an undertaking by such
Indemnified Party that such Indemnified Party will reimburse the Borrower
if it is actually and finally determined by a court of competent
jurisdiction that such Indemnified Party is not so entitled to
indemnification hereunder.
(d) An Indemnified Party may conduct its own investigation and
defense of, and may formulate its own strategy with respect to, any
Indemnified Proceeding covered by this Section and, as provided above, all
costs and expenses incurred by the Indemnified Party shall be reimbursed by
the Borrower. No action taken by legal counsel chosen by an Indemnified
Party in investigating or defending against any such Indemnified Proceeding
shall vitiate or in any way impair the obligations and duties of the
Borrower hereunder to indemnify and hold harmless each such Indemnified
Party; provided, however, that (i) if the Borrower is required to indemnify
an Indemnified Party pursuant hereto and (ii) the Borrower has provided
evidence reasonably satisfactory to such Indemnified Party that the
Borrower has the financial wherewithal to reimburse such Indemnified Party
for any amount paid by such Indemnified Party with respect to such
Indemnified Proceeding, such Indemnified Party shall not settle or
compromise any such Indemnified Proceeding without the prior written
consent of the Borrower (which consent shall not be unreasonably withheld
or delayed).
(e) If and to the extent that the obligations of the Borrower
hereunder are unenforceable for any reason, the Borrower hereby agrees to
make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under Applicable Law. The Borrower's
obligations hereunder shall survive any termination of this Agreement and
the other Loan Documents and the payment in full of the Obligations, and
are in addition to, and not in substitution of, any other of their
obligations set forth in this Agreement or any other Loan Document to which
it is a party.
SECTION 10.12. TERMINATION; SURVIVAL.
At such time as (a) all of the Commitments have been terminated,
(b) all Letters of Credit have expired or been terminated, (c) none of the
Lenders is obligated any longer under this Agreement and (d) all
Obligations (other than obligations which survive as provided in the
following sentence) have been paid and satisfied in full, this Agreement
shall terminate. Notwithstanding any termination of this Agreement, or of
the other Loan Documents, the indemnities to which the Agent and the
Lenders are entitled under the provisions of Sections 9.7., 10.2. and
10.11. and any other provision of this Agreement and the other Loan
Documents, and the waivers of jury trial and submission to jurisdictions
contained in Section 10.4., shall continue in full force and effect and
shall protect the Agent and the Lenders against events arising after such
termination as well as before.
SECTION 10.13. SEVERABILITY OF PROVISIONS.
Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective only to
the extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 10.14. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NORTH CAROLINA APPLICABLE TO CONTRACTS EXECUTED,
AND TO BE FULLY PERFORMED, IN SUCH STATE.
SECTION 10.15. COUNTERPARTS.
This Agreement and any amendments, waivers, consents or supplements
may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all of which counterparts
together shall constitute but one and the same instrument.
SECTION 10.16. LIMITATION OF LIABILITY.
Neither the Agent nor any Lender, nor any affiliate, officer,
director, employee, attorney, or agent of the Agent or any Lender shall
have any liability with respect to, and the Borrower hereby waives,
releases, and agrees not to xxx any of them upon, any claim for any
special, indirect, incidental, or consequential damages suffered or
incurred by the Borrower in connection with, arising out of, or in any way
related to, this Agreement or any of the other Loan Documents, or any of
the transactions contemplated by this Agreement or any of the other Loan
Documents. The Borrower hereby waives, releases, and agrees not to xxx the
Agent or any Lender or any of the Agent's or any Lender's affiliates,
officers, directors, employees, attorneys, or agents for punitive damages
in respect of any claim in connection with, arising out of, or in any way
related to, this Agreement or any of the other Loan Documents, or any of
the transactions contemplated by this Agreement or financed hereby.
SECTION 10.17. ENTIRE AGREEMENT.
This Agreement and the other Loan Documents embody the final, entire
agreement among the parties hereto and supersede any and all prior
commitments, agreements, representations, and understandings, whether
written or oral, relating to the subject matter hereof and may not be
contradicted or varied by evidence of prior, contemporaneous, or subsequent
oral agreements or discussions of the parties hereto.
SECTION 10.18. CONSTRUCTION.
The Agent, the Borrower and each Lender acknowledge that each of them
has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement and the other Loan
Documents with its legal counsel and that this Agreement and the other Loan
Documents shall be construed as if jointly drafted by the Agent, the
Borrower and each Lender.
[Signatures on the Following Pages]
IN WITNESS WHEREOF, the parties hereto have caused this Reimbursement
Agreement to be executed by their authorized officers all as of the day and
year first above written.
BORROWER:
MERRY LAND & INVESTMENT COMPANY, INC.
By:_________________________________
Name:__________________________
Title:_________________________
[Signatures Continued on Following Pages]
[SIGNATURE PAGE TO REIMBURSEMENT AGREEMENT DATED AS OF
APRIL 1, 1998 WITH MERRY LAND & INVESTMENT COMPANY, INC.]
FIRST UNION NATIONAL BANK, as Agent and as a
Lender
By:_______________________________
Name:________________________
Title:_______________________
INITIAL COMMITMENT AMOUNT:
$100,991,788
LENDING OFFICE:
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
SCHEDULE 1.1.(a)
BONDS
1. $12,470,000 Florida Housing Finance Agency Multi-Family Guaranteed
Mortgage Revenue Bonds (Horizon Place Development), 1983 Series F.
2. $6,240,000 Florida Housing Finance Agency Multi-Family Guaranteed
Mortgage Revenue Bonds (Wood Forest Apartments Project), 1983 Series
I.
3. $8,700,000 Florida Housing Finance Agency Multi-Family Housing Revenue
Bonds (Beneva Place Project), 1985 Series C.
4. $10,975,000 Florida Housing Finance Agency Multi-Family Guaranteed
Mortgage Revenue Bonds (Oaks at Baymeadows Development), 1983 Series
G.
5. $10,220,000 Florida Housing Finance Agency Multi-Family Housing
Revenue Refunding Bonds (Oaks at Orange Park Project), 1990 Series A.
6. $10,770,000 Florida Housing Finance Agency Multi-Family Guaranteed
Mortgage Revenue Bonds (Forest Place Development), 1983 Series J.
7. $13,840,000 Florida Housing Finance Agency Multi-Family Revenue Bonds
(The Crossings Project), 1987 Series A.
8. $21,170,000 Florida Housing Finance Agency Multi-Family Housing
Revenue Bonds (Buena Vista Place Project), 1985 Series MM.
9. $7,200,000 Florida Housing Finance Agency Multi-Family Guaranteed
Mortgage Revenue Bonds (Oaks at Regency Development), 1983 Series K.
SCHEDULE 1.1.(b)
INDENTURES
1. Trust Indenture dated as of December 1, 1983, by and between SunTrust
Bank, Central Florida, National Association, the successor to Flagship
National Bank of Miami, as trustee (the "Trustee"), and the Florida
Housing Finance Corporation, formerly known as the Florida Housing
Finance Agency (the "Corporation"), as supplemented as of August 1,
1984, as of February 1, 1986, as of December 1, 1986, as of March 10,
1995, as of June 1, 1995, as of April 1, 1998, and as further
supplemented from time to time.
2. Trust Indenture dated as of December 1, 1983, by and between the
Trustee and the Corporation as supplemented as of February 1, 1986, as
of December 1, 1986, as of March 1, 1998, and as further supplemented
from time to time.
3. Trust Indenture dated as of February 1, 1985, by and between the
Trustee and the Corporation as supplemented as of February 1, 1986, as
of May 1, 1988, as of April 1, 1998, and as further supplemented from
time to time.
4. Trust Indenture dated as of December 1, 1983, by and between the
Trustee and the Corporation, as supplemented as of August 1, 1984, as
of February 1, 1986, as of December 1, 1986, as of March 10, 1995, as
of June 1, 1995, as of April 1, 1998, and as further supplemented from
time to time.
5. Trust Indenture dated as of August 1, 1990, by and between the
Trustee and the Corporation as supplemented as of April 1, 1998, and
as further supplemented from time to time.
6. Trust Indenture dated as of December 1, 1983, by and between the
Trustee and the Corporation, as supplemented as of February 1, 1986,
as of December 1, 1986 as of March 1, 1998, and as further
supplemented from time to time.
7. Trust Indenture dated as of February 1, 1987, by and between the
Trustee and the Corporation as supplemented as of April 1, 1998, and
as further supplemented from time to time.
8. Second Amended and Restated Trust Indenture dated as of September 1,
1987 by and between the Trustee and the Corporation as supplemented as
of April 1, 1998, and as further supplemented from time to time.
9. Trust Indenture dated as of December 1, 1983, by and between the
Trustee and the Corporation, as supplemented as of February 1, 1986,
as of December 1, 1986, as of March 1, 1998, and as further
supplemented from time to time.
SCHEDULE 1.1.(c)
TARGET PARTNERSHIPS
Sarasota Beneva Place Associates, Ltd., a Florida limited partnership
The Crossings Associates, a Florida general partnership
Forest Place Associates, a Florida general partnership
Horizon Place Associates, a Florida general partnership
Oaks at Baymeadows Associates, a Florida general partnership
Merry Land DownREIT I LP, successor to Crow Oaks at Orange Park Associates,
Ltd., a Florida limited partnership
Oaks at Regency Associates, a Florida general partnership
Buena Vista Place Associates, a Florida general partnership
Wood Forest Associates, a Florida general partnership
SCHEDULE 2.1.
Description of Basic Terms of Letters of Credit
HORIZON OAKS AT CROSSINGS WOOD FOREST OAKS AT XXXXXX XXXX AT BUENA VISTA
PROJECT NAME PLACE BAYMEADOWS (CHICKASAW) FOREST PLACE REGENCY PLACE ORANGE PARK PLACE
Bond Series 1983F 1983G 1987A 1983I 1983J 1983K 1985C 1990A 1985MM
CURRENT
PRINCIPAL
AMOUNT $12,090,000 $10,240,000 $11,640,000 $5,995,000 $10,370,000 $6,925,000 $8,700,000 $9,540,000 $21,170,000
STATED
EXPIRATION
DATE June 15, June 15, February 15, December 15, December 15, December 15, February 15, April 15, November
2000 2000 2003 1999 1999 1999 2002 1999 15, 1999
CURRENT/MAX.
INTEREST RATE 5.35% 5.35% 4.85% 4.85% 4.85% 4.85% Max. 15% Max. 10% 4.013%/
REDEMPTION PREMIUM
COVERAGE 1.5% 1.5% 2.0% 1.0% 1.0% 1.0% None None None
REQUIRED # OF
DAYS INTEREST
COVERAGE 183 183 183 183 183 183 95 36 183
ORIGINAL LOC
STATED AMOUNT $12,600,148 $10,672,086 $12,159,775 $6,202,752 $10,729,364 $7,164,981 $9,044,375 $9,634,094 $22,784,213
LOC NUMBER S148617 S148618 S148619 S148620 S148621 S148622 S148623 S148624 S148625
SCHEDULE 2.2.
Description of Basic Terms of Confirming Bank Letters of Credit
OAKS AT CROSSINGS OAKS AT BUENA VISTA
PROJECT NAME HORIZON PLACE BAYMEADOWS (CHICKASAW) ORANGE PARK PLACE
Bond Series 1983F 1983G 1987A 1990A 1985MM
CURRENT PRINCIPAL AMOUNT $12,090,000 $10,240,000 $11,640,000 $9,540,000 $21,170,000
SCHEDULED EXPIRATION June 15, 2000 June 15, 2000 February 15, 2003 April 15, 1999 November 15, 1999
DATE
CURRENT/MAX. 5.35% 5.35% 4.85% Max. 10% 4.013%/
INTEREST RATE Max. 15%
REDEMPTION 1.5% 1.5% 2.0% None None
PREMIUM COVERAGE
ORIGINAL LOC $12,600,148 $10,672,086 $12,159,775 $9,634,094 $22,784,213
STATED AMOUNT
TABLE OF CONTENTS*
ARTICLE I. DEFINITIONS..............................................1
Section 1.1. Definitions......................................1
Section 1.2. General; References to Times.....................9
ARTICLE II. LETTER OF CREDIT FACILITY...............................9
Section 2.1. Letters of Credit................................9
Section 2.2. Confirming Bank Letter of Credit................12
Section 2.3. Extension of Stated Termination Dates...........14
Section 2.4. Maturity Date of Letters of Credit Past
Facility Termination Date.......................15
ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS...........15
Section 3.1. Payments........................................15
Section 3.2. Pro Rata Treatment..............................16
Section 3.3. Sharing of Payments, Etc........................16
Section 3.4. Several Obligations.............................16
Section 3.5. Fees............................................17
Section 3.6. Computations....................................17
Section 3.7. Usury...........................................17
Section 3.8. Agreement Regarding Interest and Charges........17
Section 3.9. Statements of Account...........................18
Section 3.10. Defaulting Lenders..............................18
Section 3.11. Taxes...........................................19
ARTICLE IV. YIELD PROTECTION, ETC..................................20
Section 4.1. Additional Costs; Capital Adequacy..............20
Section 4.2. Change of Lending Office........................21
ARTICLE V. CONDITIONS PRECEDENT....................................21
Section 5.1. Conditions Precedent............................21
Section 5.2. Conditions as Covenants.........................25
ARTICLE VI. REPRESENTATIONS AND WARRANTIES.........................26
Section 6.1. Representations and Warranties..................26
Section 6.2. Survival of Representations and Warranties,Etc..28
ARTICLE VII. COVENANTS.............................................29
Section 7.1. Incorporation of Certain Covenants of Credit
Agreement.......................................29
Section 7.2. Additional Subsidiaries.........................29
Section 7.3. Information.....................................29
Section 7.4. Remarketing Agent, Placement Agent and Trustee..30
Section 7.5. Registration of Bonds...........................30
Section 7.6. Performance of Bond Documents...................30
Section 7.7. Modifications to Bond Documents; Redemptions,
Etc.............................................30
Section 7.8. Further Assurances..............................30
ARTICLE VIII. DEFAULT..............................................31
Section 8.1. Events of Default...............................31
Section 8.2. Remedies Upon Event of Default..................32
Section 8.3. Allocation of Proceeds..........................33
Section 8.4. Collateral Account..............................34
Section 8.5. Performance by Agent............................35
Section 8.6. Rights Cumulative...............................35
ARTICLE IX. THE AGENT..............................................35
Section 9.1. Authorization and Action........................35
Section 9.2. Agent's Reliance, Etc...........................36
Section 9.3. Notice of Defaults..............................37
Section 9.4. First Union as Lender...........................37
Section 9.5. Approvals of Lenders............................37
Section 9.6. Lender Credit Decision, Etc.....................38
Section 9.7. Indemnification of Agent........................38
ARTICLE X. MISCELLANEOUS...........................................39
Section 10.1. Notices........................................39
Section 10.2. Expenses.......................................40
Section 10.3. Setoff.........................................41
Section 10.4. Arbitration....................................41
Section 10.5. Successors and Assigns.........................42
Section 10.6. Replacement of Lenders.........................44
Section 10.7. Amendments.....................................45
Section 10.8. Credit Agreement Provisions....................46
Section 10.9. Nonliability of Agent and Lenders..............46
Section 10.10. Confidentiality................................47
Section 10.11. Indemnification................................47
Section 10.12. Termination; Survival..........................49
Section 10.13. Severability of Provisions.....................49
Section 10.14. GOVERNING LAW..................................49
Section 10.15. Counterparts...................................49
Section 10.16. Limitation of Liability........................49
Section 10.17. Entire Agreement...............................50
Section 10.18. Construction...................................50
SCHEDULE 1.1.(a) Bonds
SCHEDULE 1.1.(b) Indentures
SCHEDULE 1.1.(c) Target Partnerships
SCHEDULE 2.1. Description of Basic Terms of Letters of Credit
EXHIBIT A Form of Assignment and Acceptance Agreement
EXHIBIT B Form of Guaranty
EXHIBIT C Form of Pledge Agreement
EXHIBIT D Form of Letter of Credit
EXHIBIT E Form of Opinion of Counsel
**FOOTNOTES**
*THIS TABLE OF CONTENTS IS NOT PART OF THE REIMBURSEMENT
AGREEMENT AND IS PROVIDED AS A CONVENIENCE ONLY.
