================================================================================
PARTICIPATION AGREEMENT
among
KINDERCARE LEARNING CENTERS, INC.
THE KINDERCARE REALTY TRUST 1999,
a Delaware business trust,
as Lessor,
SCOTIABANC INC.
as an Investor,
THE CHASE MANHATTAN BANK,
as Agent for the
Lenders
and
THE LENDERS PARTIES HERETO
-----------------------------
Dated as of September 2, 1999
-----------------------------
================================================================================
TABLE OF CONTENTS
-----------------
Page
----
SECTION 1. THE LOANS ........................................................1
1.1 Loans ...........................................................1
1.2 Credit Agreement ................................................1
1.3 Collateral For Loans ............................................1
1.4 Guarantee .......................................................2
SECTION 2. INVESTOR CONTRIBUTION ............................................2
2.1 Investor Contribution ...........................................2
2.2 Allocated Investor Yield ........................................2
SECTION 3. SUMMARY OF THE TRANSACTIONS ......................................2
3.1 Operative Agreements ............................................2
3.2 Property Purchase and Lease. ....................................2
3.3 Construction of Improvements; Lease of Improvements. ............3
3.4 Aggregate Tranche A Percentage; Tranche A Percentage ............3
SECTION 4. THE CLOSINGS .....................................................3
4.1 Initial Closing Date ............................................3
4.2 Subsequent Funding Dates ........................................3
4.3 Trust Company Authorization .....................................3
SECTION 5. FUNDING OF ADVANCES ..............................................4
5.1 General .........................................................4
5.2 Procedures for Funding ..........................................4
SECTION 6. CONDITIONS OF THE CLOSING ........................................5
6.1 General Conditions to the Investor's and the Lenders'
Obligations to Make Loans and Investor Contributions ............5
6.2 Conditions to the Investor's and the Lenders' Obligations to
Make Advances to pay Property Acquisition Costs .................8
6.3 Conditions to the Investor's and the Lenders' Obligations to
Make Advances to Pay Project Costs for Construction on any
Property. ......................................................13
SECTION 7. REPRESENTATIONS AND WARRANTIES ..................................14
7.1 Representations and Warranties of the Investor on the Initial
Closing Date ...................................................14
7.2 Representations and Warranties of Lessor on the Initial
Closing Date ...................................................15
7.3 Representations and Warranties of the Lessee on the Initial
Closing Date ...................................................17
7.4 Representations and Warranties of the Trust Company on the
Initial Closing Date ...........................................21
-i-
Page
----
7.5 Representations and Warranties of the Lessee on Property
Closing Dates ..................................................22
7.6 Representations and Warranties of the Lessor on Property
Closing Dates ..................................................26
7.7 Representations and Warranties of the Lessee Upon each
Funding Date ...................................................27
7.8 Representations and Warranties of the Lessor Upon each
Funding Date ...................................................29
7.9 Representations and Warranties of the Investor Upon Funding
Dates ..........................................................30
SECTION 8. PAYMENT OF CERTAIN EXPENSES .....................................30
8.1 Transaction Expenses ...........................................30
8.2 Brokers' Fees and Stamp Taxes ..................................30
8.3 Certain Fees and Expenses ......................................30
8.4 Credit Agreement and Related Obligations .......................31
8.5 Commitment Fees ................................................31
8.6 Overdue Rate ...................................................31
SECTION 9. OTHER COVENANTS AND AGREEMENTS ..................................32
9.1 Covenants of the Trust and the Investor ........................32
9.2 Repayment of Certain Amounts on Maturity Date ..................33
9.3 Amendment of Certain Documents .................................34
9.4 Proceeds of Casualty ...........................................34
9.5 Intercreditor Agreement ........................................34
9.6 Walk Away Event ................................................34
SECTION 10. CREDIT AGREEMENT ................................................35
10.1 Lessee's Credit Agreement Rights ...............................35
SECTION 11. TRANSFER OF INTEREST ............................................36
11.1 Restrictions on Transfer .......................................36
11.2 Effect of Transfer .............................................37
SECTION 12. INDEMNIFICATION .................................................37
12.1 General Indemnity ..............................................37
12.2 General Tax Indemnity ..........................................38
SECTION 13. MISCELLANEOUS ...................................................42
13.1 Survival of Agreements .........................................42
13.2 No Broker, etc. ................................................43
13.3 Notices ........................................................43
13.4 Counterparts ...................................................44
13.5 Amendments and Termination .....................................44
13.6 Headings, etc. .................................................45
13.7 Parties in Interest ............................................45
13.8 GOVERNING LAW ..................................................45
-ii-
Page
----
13.9 Severability ...................................................45
13.10 Liability Limited ..............................................45
13.11 Rights of Lessee ...............................................45
13.12 Further Assurances .............................................46
13.13 Successors and Assigns .........................................46
13.14 No Representation or Warranty ..................................46
13.15 Highest Lawful Rate ............................................46
13.16 Confidentiality ................................................47
13.17 Oregon Provisions ..............................................48
Annex A Rules of Usage and Definitions
-------
Exhibits
--------
Exhibit A-1 Form of Construction Agreement
Exhibit A-2 Form of Agency Agreement
Exhibit B Form of Assignment of Leases and Consent to Assignment
Exhibit C Form of Contract Assignment and Consent to Contract Assignment
Exhibit D-1 Form of Mortgage
Exhibit D-2 Form of Deed of Trust
Exhibit E Form of Guarantee
Exhibit F Form of Requisition
Exhibit G-1 Form of Opinion of Counsel to Lessee and each Guarantor
Exhibit G-2 Form of Opinion of Counsel to Lessor and Trust Company
Exhibit G-3 Form of Opinion of Local Counsel to Lessee and each Guarantor
Exhibit H Property Closing Certificate
Exhibit I Form of Ground Lease Provisions
-iii-
PARTICIPATION AGREEMENT, dated as of September 2, 1999 (this
"Agreement"), among KINDERCARE LEARNING CENTERS, INC., a Delaware corporation
(the "Lessee"); THE KINDERCARE REALTY TRUST 1999, a Delaware business trust (the
"Trust" or the "Lessor"); THE CHASE MANHATTAN BANK, a New York banking
corporation, as agent (in such capacity, the "Agent") for the Lenders;
SCOTIABANC INC., as an investor ("Scotiabanc" or an "Investor" ); and each of
the financial institutions listed on the signature pages hereof (each, a
"Lender"; collectively, the "Lenders"). Capitalized terms used but not otherwise
defined in this Agreement shall have the meanings set forth in Annex A hereto.
Preliminary Statement
---------------------
In consideration of the mutual agreements herein contained and other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. THE LOANS
1.1 Loans. The Lenders have agreed to make loans to the Lessor in an
aggregate principal amount of up to $95,500,000 in order for the Lessor to
acquire, develop and construct the Properties in accordance with the
Construction Agreement (in the form attached hereto as Exhibit A-1) and the
Agency Agreement (in the form attached hereto as Exhibit A-2), and to pay other
Project Costs, and in consideration of the receipt of the proceeds of such
Loans, the Lessor will issue the Tranche A Notes and the Tranche B Notes.
1.2 Credit Agreement. The Loans shall be made and the Notes shall be
issued pursuant to the Credit Agreement. Pursuant to this Agreement and the
Credit Agreement, the Loans will be made to the Lessor from time to time at the
request of the Construction Agent in consideration for the Construction Agent's
agreeing for the benefit of the Lessor, pursuant to the Agency Agreement, to
assist with the acquisition by the Lessor of parcels of Land or other Property
and, if such Property is not a Completed Property, to construct Improvements in
accordance with the Plans and Specifications.
1.3 Collateral For Loans. The Loans and the obligations of the Lessor
under the Credit Agreement shall be secured by, inter alia, (i) a first priority
assignment of the Lease, granted pursuant to the Assignment of Lease and
consented to by the Lessee pursuant to the Consent to Assignment (in each case
in the respective forms set forth on Exhibit B hereto), (ii) a first priority
assignment of the Agency Agreement, granted pursuant to the Contract Assignment
and consented to by the Construction Agent pursuant to the Consent to Contract
Assignment (in each case in the respective forms set forth on Exhibit C hereto);
and (iii) a first priority mortgage lien on each Property pursuant to a Mortgage
in the form set forth on Exhibit D-1 or Exhibit D-2 hereto, as applicable.
2
1.4 Guarantee. The obligations of the Lessor under the Credit
Agreement shall be guaranteed by each Guarantor to the extent provided in the
Guarantee (in the form attached hereto as Exhibit E). The Lessee and each
Subsidiary of the Lessee that is or becomes a party to the guarantee to the
Corporate Credit Agreement shall be a Guarantor and shall execute the Guarantee.
Notwithstanding whether a Guarantor is relieved of its obligations under the
guarantee to the Corporate Credit Agreement, a Guarantor shall be relieved of
its obligations under the Guarantee only if and to the extent so approved by a
majority consent of the Lenders and Investors, collectively, each Lender and
Investor having a vote proportionate to its share of the sum of Commitments plus
Investor Commitments.
SECTION 2. INVESTOR CONTRIBUTION
2.1 Investor Contribution. Subject to the terms and conditions of this
Agreement, and in reliance on the representations and warranties of each of the
parties hereto contained herein or made pursuant hereto, on each Funding Date,
each Investor shall make an investment in the Lessor (each, an "Investor
Contribution") in an amount equal to its Proportionate Share of 4.5% of the
amount of the Advance requested by the Construction Agent in the Requisition for
such Funding Date. The aggregate amount of Investor Contributions made by each
Investor shall not exceed its Investor Commitment. The aggregate amount of all
Investor Commitments of all Investors is $4,500,000. The Lessor shall use the
Investor Contributions to pay a portion of the Project Costs simultaneously and
pro rata with the fundings by the Lenders. The Lessee shall, on a pro rata
basis, prepay the Investor Contribution, in connection with the exercise by the
Lessee of its right to direct the Lessor to prepay the Loans in accordance with
Section 10.1(e).
2.2 Allocated Investor Yield. With respect to each Construction Period
Property, on each date which is one Business Day prior to any date on which the
Investor is entitled to a payment on account of the Investor Yield, the
Construction Agent shall be deemed to have requested that the Investor make an
Investor Contribution in an amount equal to the Investor Yield due and payable
on such date with respect to the Construction Period Properties solely for the
purpose of paying such Investor Yield which is then due and payable.
SECTION 3. SUMMARY OF THE TRANSACTIONS
3.1 Operative Agreements. On the Initial Closing Date, each of the
respective parties thereto shall execute and deliver this Agreement, the Lease,
the Construction Agreement, the Agency Agreement, the Notes, the Guarantee, the
Credit Agreement, the Assignment of Lease, the Contract Assignment, the Consent
to Assignment, the Consent to Contract Assignment and such other documents,
instruments, certificates and opinions of counsel as agreed to by the parties
hereto.
3
3.2 Property Purchase and Lease. (a) On each Property Closing Date and
subject to the terms and conditions of this Agreement and the Credit Agreement
(i) the Investor will make an Investor Contribution in accordance with Section 2
hereof, (ii) the Lenders will make loans in accordance with Section 5 hereof and
the terms and provisions of the Credit Agreement secured by a Mortgage with
respect to the Property executed and delivered by the Lessor and joined in by
the Lessee, (iii) the Lessor will purchase all right, title and interest in and
to each Property identified by the Construction Agent pursuant to the Agency
Agreement with respect to such Property Closing Date and (iv) the Lessor will
simultaneously lease (or sublease, as the case may be) all of its right, title
and interest in the Property to the Lessee by executing and delivering a Lease
Supplement and Memorandum of Lease which will be recorded in the real estate
records in the county where such Property is located.
(b) On each Property Closing Date, the Lessee shall certify to the
Agent on the Property Closing Certificate the Tranche A Percentage for each
Property being acquired on such Property Closing Date. The Tranche A Percentage
so certified shall be the Tranche A Percentage for such Property for the
duration of the Term.
3.3 Construction of Improvements; Lease of Improvements. On each
Property Closing Date, the Lessor and Lessee will (provided such Property is not
a Completed Property) execute and deliver an Agency Agreement Supplement, dated
as of such Property Closing Date, pursuant to which the Lessee will agree to act
as Construction Agent and to perform the Lessor's obligations under the
Construction Agreement in connection with the completion of the construction or
renovation of the Improvements on the Land acquired on such Property Closing
Date.
3.4 Aggregate Tranche A Percentage; Tranche A Percentage.
Notwithstanding any other provision of this Agreement or the other Operative
Agreements, the Lessee agrees that in no event shall the Lessee specify a
Property for the Lessor to acquire and lease pursuant to the execution and
delivery of a Lease Supplement if the Aggregate Tranche A Percentage after
giving effect to the acquisition and lease pursuant to the execution and
delivery of a Lease Supplement of such Property would be less than 87.96%.
SECTION 4. THE CLOSINGS
4.1 Initial Closing Date. All documents and instruments required to be
delivered on the Initial Closing Date shall be delivered at the offices of
Xxxxxxx Xxxxxxx & Xxxxxxxx, 425 Lexington Avenue, New York, New York, or at such
other location as may be determined by the Agent and the Lessee.
4
4.2 Subsequent Funding Dates. The Lessee shall deliver to the Lessor,
each Investor and the Agent a Requisition appropriately completed, in connection
with each Funding Date.
4.3 Trust Company Authorization. The Investor agrees that, with
respect to the Initial Closing Date and each Property Closing Date, the
satisfaction or waiver of the conditions contained in Section 6 hereof shall
constitute, without further act, authorization and direction by the Investor to
the Trust Company to take on behalf of the Lessor the actions specified in
Section 2.1 of the Trust Agreement.
SECTION 5. FUNDING OF ADVANCES
5.1 General. To the extent funds have been made available to the
Lessor as Loans and Investor Contributions, the Lessor will make advances of
such funds to the Construction Agent from time to time in accordance with the
terms and conditions of this Agreement and the other Operative Agreements in
order to provide sufficient funds to: (i) allow the Lessor, at the direction of
the Construction Agent to acquire the Land or Completed Property in accordance
with the terms of this Agreement and the other Operative Agreements; (ii) allow
the Lessor to pay Transaction Expenses; (iii) permit the Construction Agent to
construct the Improvements (provided that such Property is not a Completed
Property) in accordance with the Plans and Specifications and the terms of the
Construction Agreement, the Agency Agreement, the Lease and the other Operative
Agreements; and (iv) pay all other Project Costs.
5.2 Procedures for Funding. (a) Not less than three Business Days
prior to each proposed Funding Date (but only one Business Day with regard to
funding of an ABR Loan exclusively), the Construction Agent shall deliver to the
Investor and the Agent, a requisition (a "Requisition"), appropriately
completed, in the form of Exhibit F hereto.
(b) Each Requisition shall: (i) be irrevocable; and (ii) request funds
in an amount of at least $500,000 (or such lesser amount representing Property
Acquisition Costs for any Property or such lesser amount as shall be equal to
the total aggregate of the Available Commitments plus the Available Investor
Commitment at such time) for the payment of Project Costs which have previously
been incurred and were not the subject of and funded pursuant to a prior
Requisition, in each case as specified in the Requisition.
(c) So long as no Default or Event of Default has occurred and is
continuing and subject to the Lessor and the Agent having each received the
materials required by Section 6.1, 6.2 and/or 6.3, as applicable, on each
Funding Date (i) the Lenders shall make Loans to the Lessor in an aggregate
amount equal to 95.5% of the funds specified in any Requisition, up to an
aggregate principal amount equal to the Available Commitments; (ii) each
Investor shall make an
5
Investor Contribution in an amount equal to its Proportionate Share of 4.5% of
the funds specified in any Requisition, up to an amount equal to the Available
Investor Commitment; and (iii) the total amount of such Loans and Investor
Contribution made on such date shall be paid to the Construction Agent to pay
the Project Costs.
(d) Notwithstanding anything to the contrary in this Agreement, (i)
the Lenders shall not be required to make Loans with respect to a Property in an
aggregate amount in excess of 95.5% of the amount allocated to such Property in
the Budget, and (ii) no Investor shall be required to make Investor
Contributions with respect to a Property in an aggregate amount in excess of its
Proportionate Share of 4.5% of the amount allocated to such Property in the
Budget.
SECTION 6. CONDITIONS OF THE CLOSINGS AND ADVANCES
6.1 General Conditions to the Investor's and the Lenders' Obligations
to Make Loans and Investor Contributions. The agreement of each Lender to make
Loans, and each Investor to make Investor Contributions, is subject to the
satisfaction, immediately prior to or concurrently with the making of such Loans
and Investor Contribution, of the following conditions precedent:
(a) Operative Agreements. Each of the Operative Agreements entered
into on the Initial Closing Date or subsequently shall have been duly
authorized, executed, acknowledged and delivered by the parties thereto and
shall be in full force and effect, and the Agent and each Investor shall
have received a fully executed copy of each of the Operative Agreements
(other than the Notes of which the Agent shall have received the originals
thereof);
(b) Taxes. All taxes, fees and other charges in connection with the
execution, delivery, and, where applicable, recording, filing and
registration of the Operative Agreements shall have been paid or provisions
for such payment shall have been made to the satisfaction of the Agent and
the Required Investors;
(c) Governmental Approvals. All necessary (or, in the reasonable
opinion of the Agent, the Investor and their respective counsel, advisable)
Governmental Actions, in each case required by any law or regulation
enacted, imposed or adopted on or after the date hereof or by any change in
fact or circumstances since the date hereof, shall have been obtained or
made and be in full force and effect except for such Governmental Actions
the absence of which will not have a Material Adverse Effect;
(d) Litigation. No action or proceeding shall have been instituted,
nor to the knowledge of the Lessee shall any action or proceeding be
threatened, before any
6
Governmental Authority, nor shall any order, judgment or decree have been
issued or proposed to be issued by any Governmental Authority, which in any
case, (i) seeks to set aside, restrain, enjoin or prevent the full
performance of this Agreement, any other Operative Agreement or any of the
transactions contemplated hereby or thereby or (ii) is reasonably likely to
have a Material Adverse Effect;
(e) Legal Requirements. In the opinion of the Agent, the Investor and
their respective counsel, the transactions contemplated by the Operative
Agreements do not and will not violate in any respect any Legal
Requirements and do not and will not subject the Agent, any Lender or the
Investor to any adverse regulatory prohibitions or constraints;
(f) Corporate Proceedings of the Lessee and each Guarantor. On the
Initial Closing Date, the Agent and the Investor shall have received a copy
of the resolutions or minutes, in form and substance satisfactory to the
Agent and the Investor, of the Board of Directors of the Lessee and each
Guarantor authorizing the execution, delivery and performance of this
Agreement, the Guarantee and the other Operative Agreements to which it is
a party, certified by the Secretary or an Assistant Secretary of the Lessee
or of each Guarantor as of the Initial Closing Date, which certificate
shall be in form and substance satisfactory to the Agent and the Investor
and shall state that the resolutions or minutes thereby certified have not
been amended, modified, revoked or rescinded;
(g) Lessee and Guarantor Incumbency Certificates. On the Initial
Closing Date, the Agent and the Investor shall have received a certificate
of the Lessee and each Guarantor, dated the Initial Closing Date, as to the
incumbency and signature of the officers of the Lessee and each Guarantor
executing any Operative Agreement satisfactory in form and substance to the
Agent and the Investor, executed by the Chief Executive Officer, President
or any Vice President and the Secretary or any Assistant Secretary of the
Lessee and of each Guarantor;
(h) Corporate Proceedings of the Trust Company. On the Initial Closing
Date, the Agent, the Investor and the Lessee shall have received a copy of
the resolutions, in form and substance satisfactory to the Agent, the
Investor and the Lessee, of the Board of Directors of the Trust Company
authorizing the execution, delivery and performance of the Operative
Agreements to which it is a party, certified by the Secretary or an
Assistant Secretary of the Trust Company as of the Initial Closing Date,
which certificate shall be in form and substance satisfactory to the Agent,
the Investor and the Lessee and shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded;
7
(i) Trust Company Incumbency Certificate. On the Initial Closing Date,
the Agent, the Investor and the Lessee shall have received a certificate of
the Trust Company, dated the Initial Closing Date, as to the incumbency and
signature of the officers of the Trust Company executing any Operative
Agreement, satisfactory in form and substance to the Agent, the Investor
and the Lessee, executed by the President or any Vice President, Assistant
Vice President, Trust Officer and the Secretary or any Assistant Secretary
of the Trust Company;
(j) Corporate Documents. The Agent and the Investor shall have
received true and complete copies of the articles of incorporation and
by-laws of the Lessee, and each Guarantor certified as of the Initial
Closing Date as complete and correct copies thereof by the Secretary or an
Assistant Secretary of the Lessee and such Guarantor;
(k) Consents, Licenses and Approvals. On the Initial Closing Date and
each Property Closing Date, the Agent and the Investor shall have received
a certificate of an Authorized Officer of the Lessee and of each Guarantor
(i) attaching copies of all consents, authorizations and filings required
to consummate the transaction contemplated by this Agreement, and (ii)
stating that such consents, licenses and filings are in full force and
effect, and each such consent, authorization and filing shall be in form
and substance satisfactory to the Agent and the Required Investors;
(l) Fees. (i) The Agent and the Arranger shall have received the fees
to be paid on the Initial Closing Date pursuant to the Fee Letter which
fees shall be paid using the proceeds of the Loans or Investor
Contributions; and (ii) all fees due and owing the Investor shall have been
paid on the Initial Closing Date;
(m) Legal Opinions. On the Initial Closing Date, the Agent and the
Investor shall have received the executed legal opinion of Stoel Rives LLP,
counsel to the Lessee and each Guarantor, substantially in the form of
Exhibit G-1 hereto;
(ii) On the Initial Closing Date, the Agent, the Lessee and the
Investor shall have received the executed legal opinion of Morris, James,
Hitchens & Xxxxxxxx, counsel to the Trust and the Trust Company,
substantially in the form of Exhibit G-2 hereto;
(n) Actions to Perfect Liens. On the Initial Closing Date and each
Property Closing Date as to the Property being acquired on such Property
Closing Date the Agent shall have received evidence in form and substance
satisfactory to it that all filings, recordings, registrations and other
actions, including the filing of duly executed Lender Financing Statements
and Lessor Financing Statements, the Mortgage, and the Memorandum of Lease,
necessary or, in the opinion of the Agent or the Required Investors,
desirable to perfect the Liens created by the Security Documents shall have
8
been completed, to the extent required for the parties to perform the
transaction contemplated by the Operative Agreements;
(o) Lien Searches. On the Initial Closing Date the Agent and the
Investor shall have received the results of a recent search by a Person
reasonably satisfactory to the Agent, of the Uniform Commercial Code,
judgement and tax lien filings which may have been filed in the State of
Oregon with respect to personal property of the Lessee, and the results of
such search shall be satisfactory to the Agent and the Required Investors;
(p) Representations and Warranties. The representations and warranties
of the Lessor, the Lessee and each Guarantor contained herein and in each
of the other Operative Agreements shall be true and correct on and as of
each Funding Date as if made on and as of each Funding Date;
(q) Performance of Operative Agreements. The parties hereto (other
than the Investor or the Lenders) shall have performed their respective
agreements contained herein and in the other Operative Agreements on or
prior to each such Funding Date;
(r) Default. There shall not have occurred and be continuing any
Default or Event of Default under any of the Operative Agreements and no
Default or Event of Default under any of the Operative Agreements will have
occurred after giving effect to the Advance requested by such Requisition;
(s) Material Adverse Change. As of such Funding Date, there shall not
have occurred any Material Adverse Change;
(t) Financial Statements. All financial statements shall have been
delivered in accordance with Section 7.3(i) of this Agreement; and
(u) Lender Advances. With respect to each advance, each Investor shall
be satisfied that the Lessor shall receive from the Lenders on the relevant
Funding Date Loans in an amount equal to 95.5% of the applicable Advance.
(v) Fees, Costs and Expenses. All fees, costs, expenses and
disbursements due and owing as of the relevant Funding Date (or the Initial
Closing Date if such is not a Funding Date) shall have been paid in
accordance with Section 8 of this Agreement
6.2 Conditions to the Investor's and the Lenders' Obligations to Make
Advances to pay Property Acquisition Costs.
9
The obligations of each Investor to make each Investor Contribution,
and of the Lenders to make Loans to the Lessor, on a Property Closing Date for
the purpose of providing funds to the Lessor necessary to acquire a Property are
subject to the satisfaction or waiver of the following conditions precedent:
(a) Requisition. The Agent shall have received a fully executed
counterpart of the Requisition dated as of the Property Closing Date (but
delivered at least three Business Days prior to the Property Closing Date
other than with regard to funding of an ABR Loan exclusively, in which
event one Business Day will be sufficient), appropriately completed;
(b) Deed. There shall have been delivered to the Lessor, as
applicable, (i) a deed (the "Deed"), in form and substance appropriate for
recording with the applicable Governmental Authorities, with respect to
each Property (and all Improvements located thereon) being purchased on
such Property Closing Date, conveying fee simple title to such Property to
the Lessor, subject only to the Permitted Exceptions or (ii) a Ground Lease
with respect to each Property being ground leased on such Property Closing
Date (such Ground Lease, or a Memorandum of Ground Lease, as appropriate
under applicable Legal Requirements, to be in form and substance
appropriate for recording with the applicable Governmental Authorities),
subject only to Permitted Exceptions;
(c) Title. Title to each Property being acquired on such Property
Closing Date shall conform to the representations and warranties set forth
in Section 7.5(n);
(d) Lease Supplement and Memorandum of Lease. The Lessee shall have
delivered a Lease Supplement and a Memorandum of Lease executed by the
Lessee and the Lessor with respect to each Property being acquired on such
Property Closing Date to the Agent;
(e) Agency Agreement Supplement. The Construction Agent shall have
delivered an Agency Agreement Supplement executed by the Construction Agent
and the Lessor with respect to each Property (other than a Completed
Property) being acquired on such Property Closing Date to the Agent.
(f) Mortgage. The Lessee shall have recorded in the real estate
records of the county where the Property is located an original of the
Mortgage executed by the Lessor and Lessee with respect to each Property
being acquired on such Property Closing Date (or such documents as are held
by the Title Company or a closing agent acceptable to Agent and are in a
position to be so filed and recorded, as applicable) and the Lien of the
Mortgage shall conform to the representations and warranties set forth in
Section 7.5(g);
10
(g) Assignment of Lease. The Lessee shall have recorded in the real
estate records of the county where the Property is located an original of
the Assignment of Lease executed by the Lessor with respect to each
Property being acquired on such Property Closing Date (or such documents as
are held by the Title Company or a closing agent acceptable to Agent and
are in a position to be so filed and recorded, as applicable);
(h) Consent to Assignment of Lease. The Lessee and each Guarantor
shall have delivered to the Agent a consent to the Assignment of Lease
executed by the Lessee and each Guarantor with respect to each Property
being acquired on such Property Closing Date;
(i) Environmental Audit. The Agent and the Investor shall have
received not less than 5 business days prior to such Property Closing Date
(i) an Environmental Audit with respect to each Property being acquired on
such Property Closing Date, prepared by the Environmental Engineer and the
results of the Environmental Audit shall be in form and substance
satisfactory to the Agent; and (ii) letters from the Environmental Engineer
stating, among other things, that the Agent, the Lenders, the Trust and the
Investor may rely on the Environmental Audits with respect to each Property
being acquired on such Property Closing Date which were prepared by such
firm as if they were originally addressed to them in all respects;
(j) Appraisal. The Agent and the Investor shall have received an
Appraisal of each Property being acquired on such Property Closing Date and
such Appraisal shall show a value for each Property at least equal to
90.91% of the projected Project Costs for such Property and shall otherwise
be in form and substance acceptable to each Lender and Investor and the
Lessor, or, in the alternative, (i) (1) if the Property has no Improvements
or Improvements which the Lessee intends to completely demolish, an
appraisal of the Land only, or (2) if the Property has Improvements which
the Lessee intends to renovate, an appraisal of the Land and Improvements,
in either case ordered by the Agent, prepared by a reputable independent
appraiser reasonably satisfactory to the Agent, which in the judgment of
counsel to the Agent, as of the applicable Property Closing Date, complies
with all of the provisions of the Financial Institutions Reform, Recovery
and Enforcement Act of 1989, as amended, the rules and regulations adopted
pursuant thereto, and all other applicable Legal Requirements, showing the
value of the Land at least equal to the amount requested or the Requisition
with respect to such Land and (ii) a valuation letter, ordered by the
Agent, prepared by a reputable independent appraiser reasonably
satisfactory to the Agent, of such Property as if improved in accordance
with the Plans and Specifications of such Property. The valuation letter
shall state the amount of the Projected Completion Value with respect to
such Property and an estimate of the value thereof at the end of the Term.
11
(k) Default. There shall not have occurred and be continuing any
Default or Event of Default under any of the Operative Agreements and no
Default or Event of Default under any of the Operative Agreements will have
occurred after giving effect to the Advance requested by such Requisition;
(l) Survey. The Agent shall have received, and the Title Company shall
have received, a survey of each Property being acquired on such Property
Closing Date, certified to the Agent, the Investor, the Lessor and the
Title Company in a manner satisfactory to them, certified as of a date
within 180 days of the Property Closing Date, by an independent
professionally licensed land surveyor satisfactory to the Agent, which
survey shall be made in accordance with the Minimum Standard Detail
Requirements for Land Title Surveys jointly established and adopted by the
American Land Title Association and the American Congress on Surveying and
Mapping in 1992, and, without limiting the generality of the foregoing,
there shall be surveyed and shown on such survey the following: (i) the
locations on such Property of all the buildings, structures and other
improvements, if any, and the established building setback lines; (ii) the
lines of streets abutting such Property; (iii) all access and other
easements appurtenant to such Property; (iv) all roadways, paths,
driveways, easements, encroachments and overhanging projections and similar
encumbrances affecting such Property, whether recorded, apparent from a
physical inspection of the Property or otherwise known to the surveyor; (v)
any encroachments on any adjoining property by the building, structures and
improvements on such Property; and (vi) if such Property is described as
being on a filed map, a legend relating the survey to said map;
(m) Mortgagee's Title Insurance Policy. With respect to each Property
being acquired on such Property Closing Date, the Agent shall have received
with respect to the Mortgage a mortgagees' title policy, or marked up
unconditional binder for such insurance dated the Property Closing Date or
other evidence, satisfactory to Agent, of the commitment of the Title
Company to issue a mortgagee's title policy; such policy shall (i) be in an
amount equal to the aggregate amount shown on the Budget for such Property
(with a pending disbursements clause); (ii) be issued at ordinary rates;
(iii) insure that the Mortgage insured thereby creates a valid first Lien
on such Property, free and clear of all defects and encumbrances, except
Permitted Exceptions; (iv) name the Agent for the benefit of the Lenders as
the insured thereunder; (v) be in the form of ALTA Loan Policy - 1970
(Amended 10/17/70) (to the extent such policy is available, or if
unavailable, then such other ALTA Loan Policy form as is available in the
state in which the Property is situated); (vi) contain comprehensive,
access, tax lot, revolving credit and such other endorsements and
affirmative coverage as the Agent may reasonably request; and (vii) be
issued by the Title Company; and the Agent shall have received evidence
reasonably satisfactory to it that all premiums in respect of such policy,
and all charges for any
12
mortgage recording tax with respect to the Mortgage and/or the Deed of
Trust have been paid or provision made therefor;
(n) Owner's Title Insurance Policy. The Lessor shall have received an
owner's title policy, or marked up unconditional binder for such insurance
or other evidence, satisfactory to Agent, of the commitment of the Title
Company to issue an owner's title policy, dated the Closing Date, for each
Property being acquired on such Property Closing Date, in standard forms
and the Lessor and Required Investors shall have received evidence
reasonably satisfactory to it that all premiums in respect of such policy
have been paid or provision made therefor;
(o) Recorded Documents. The Agent and the Investor shall have received
a copy of all recorded documents referred to, or listed as exceptions to
title in, the title policy referred to above, other than the Operative
Agreements and any Permitted Exceptions;
(p) Construction Schedule. With respect to each Property being
acquired on such Property Closing Date (other than a Completed Property),
the Agent and the Investor shall have received a copy of the schedule
prepared by or at the direction of the Construction Agent; showing, to the
satisfaction of the Agent, the estimated (i) timetable for completion of
each Improvement to be constructed on each Property being acquired on such
Property Closing Date, and (ii) timetable for the making of Loans;
(q) Budget. With respect to each Property being acquired on such
Property Closing Date (other than a Completed Property), the Agent and the
Investor shall have received a copy of the Budget with respect to the
construction of each Improvement to be constructed or installed on each
Property being acquired on such Property Closing Date, and such Budget
shall be in form and substance satisfactory to the Agent;
(r) Plans and Specifications. With respect to each Property being
acquired on such Property Closing Date (other than a Completed Property) on
which Improvements are to be constructed, the Agent and the Investor shall
have received, if available, a copy of the Plans and Specifications with
respect to each Improvement to be constructed or installed on each Property
being acquired on such Property Closing Date;
(s) Local Opinions. With respect to each Property being acquired on
such Property Closing Date, if requested by the Agent;
(i) the Agent and the Investor shall have received the executed
legal opinion of counsel to Lessee and the Guarantors, substantially in the
form of Exhibit G-1 hereto,
13
limited to those Operative Agreements executed by Lessee and the Guarantors
on the Property Closing Date;
(ii) the Agent, the Lessee and the Investor shall have received
the executed legal opinion of counsel to Lessor, the Trust and the Trust
Company, substantially in the form of Exhibit G-2 hereto, limited to those
Operative Agreements executed by Lessor, the Trust and the Trust Company on
the Property Closing Date; and
(iii) the Agent and the Investor shall have received the executed
legal opinion of local counsel to the Lessee and the Guarantors in the
state in which such Property is located, substantially in the form of
Exhibit G-3 hereto;
(t) Insurance. With respect to the Properties for which such advance
is being requested, the Agent and the Investor shall have received evidence
in form and substance satisfactory to each of the Agent and the Required
Investors that all of the requirements of Section 14 of the Lease shall
have been satisfied; and
(u) FIRPTA Affidavit. The Agent and the Investor shall have received
either (i) a FIRPTA Affidavit from the seller of the Property in customary
form or (ii) if such seller is a "foreign person" as defined in Section
1445 of the Code, evidence that a portion of the sales price to be paid to
such seller has been withheld, if so required, in accordance with the
provisions of the Code.
6.3 Conditions to the Investor's and the Lenders' Obligations to Make
Advances to Pay Project Costs for Construction on any Property. The obligations
of each Investor to make each Investor Contribution, and of the Lenders to make
Loans to the Lessor, on a Funding Date for the purpose of providing funds to the
Lessor necessary to pay for the construction of the Improvements or the payment
of Transaction Costs or other Project Costs (other than Property Acquisition
Costs) are subject to the satisfaction or waiver of the following conditions
precedent:
(a) Requisition. The Agent shall have received at least three Business
Days prior to the Funding Date (but only one Business Day with regard to
funding of an ABR Loan exclusively) a fully executed counterpart of the
Requisition, appropriately completed;
(b) Title. Title to the Properties to which such Requisition relates
shall conform to the representations set forth in Section 7.5(n);
(c) Budget in Balance. Based upon the Budget, the Available
Commitments and the Available Investor Commitment will be sufficient to
complete the Improvement or Improvements to which the Requisition relates
on such Properties;
14
(d) Lien Waivers. With respect to each Property to which such
Requisition relates, the Agent shall have received lien waivers, in form
and substance reasonably satisfactory to the Agent, from each contractor,
subcontractor, supplier and materialmen which the Lessee reasonably
believes will receive total compensation for services rendered or materials
supplied in connection with the construction of the related Improvements of
$250,000 or more; each such lien waiver shall evidence that such
contractor, subcontractor, supplier or materialmen has been paid in full
for all work performed or materials supplied to the date of the request for
such Advance, other than work which is the subject of such request; and
(e) Plans and Specifications. With respect to each Property to which
such Requisition relates, the Agent and Investor shall have received a copy
of the Plans and Specifications with respect to each Improvement to be
constructed and installed on such Property, if such Plan and Specifications
have not already been provided pursuant to Section 6.2(r), above; and
(f) Appraisal. The Agent and the Investor shall have received an
Appraisal of each Property being acquired on such Property Closing Date and
such Appraisal shall show a value for each Property at least equal to
90.91% of the projected Project Costs for such Property and shall otherwise
be in form and substance acceptable to each Lender and the Required
Investors.
SECTION 7. REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties of the Investor on the Initial
Closing Date. Each Investor represents and warrants with respect to itself to
each of the other parties hereto as of the Initial Closing Date as follows:
(a) Due Organization, etc. Scotiabanc is duly organized and validly
existing corporation in good standing under the laws of the State of
Delaware. Each Investor has the power and authority to carry on its
business as now conducted and to enter into and perform its obligations
under this Agreement, each Operative Agreement to which it is a party and
each other agreement, instrument and document executed and delivered by it
on the Closing Date in connection with or as contemplated by each such
Operative Agreement to which it is or will be a party.
(b) Authorization; No Conflict. The execution, delivery and
performance of each Operative Agreement to which it is a party has been
duly authorized by all necessary action on its part and neither the
execution and delivery thereof by the Investor, nor the consummation of the
transactions contemplated thereby by the Investor, nor compliance
15
by it with any of the terms and provisions thereof (i) requires or will
require any approval of (which approval has not been obtained) the
shareholders of, or approval or consent of any trustee or holders of any
indebtedness or obligations of the Investor, (ii) contravenes or will
contravene any Legal Requirement applicable to or binding on it as of the
date hereof, (iii) does or will contravene or result in any breach of or
constitute any default under, or result in the creation of any Lessor Lien
upon the Property or any of the Improvements, its articles of incorporation
or by-laws, any indenture, mortgage, chattel mortgage, deed of trust,
conditional sales contract, bank loan or credit agreement or other
agreement or instrument to which it or its properties may be bound or (iv)
does or will require any Governmental Action by any Governmental Authority.
(c) Enforceability, etc. Each Operative Agreement to which it is a
party has been duly executed and delivered by it and constitutes, or upon
execution and delivery will constitute, a legal, valid and binding
obligation enforceable against it in accordance with the terms thereof.
(d) ERISA. The Investor is making the Investor Contribution
contemplated to be made by it hereunder for its own account and with its
general corporate assets in the ordinary course of its business, and no
part of such amount constitutes plan assets of any Plan.
(e) Litigation. No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or threatened by
or against the Investor (a) with respect to any of the Operative Agreements
or any of the transactions contemplated hereby or thereby, or (b) which
could reasonably be expected to have a material adverse effect on the
assets, liabilities, operations, business or financial condition of the
Investor.
7.2 Representations and Warranties of Lessor on the Initial Closing
Date. Lessor represents and warrants to each of the other parties hereto as of
the Initial Closing Date as follows:
(a) Due Organization, etc. Lessor is a duly organized and validly
existing business trust in good standing under the laws of the State of
Delaware and has the power and authority to carry on its business as now
conducted and to enter into and perform its obligations under this
Agreement, each Operative Agreement to which it is a party and each other
agreement, instrument and document executed and delivered by it on the
Closing Date in connection with or as contemplated by each such Operative
Agreement.
(b) Authorization; No Conflict. The execution, delivery and
performance of each Operative Agreement to which it is a party has been
duly authorized by all necessary
16
action on its part and neither the execution and delivery thereof by the
Lessor, nor the consummation of the transactions contemplated thereby by
the Lessor, nor compliance by it with any of the terms and provisions
thereof (i) requires or will require any approval of (which approval has
not been obtained) any party or approval or consent of any trustee or
holders of any indebtedness or obligations of the Lessor (ii) contravenes
or will contravene any Legal Requirement applicable to or binding on it as
of the date hereof, (iii) does or will contravene or result in any breach
of or constitute any default under, or result in the creation of any Lessor
Lien upon the Property or any of the Improvements or the Trust Agreement,
any indenture, mortgage, chattel mortgage, deed of trust, conditional sales
contract, bank loan or credit agreement or other agreement or instrument to
which it or its properties may be bound or (iv) does or will require any
Governmental Action by any Governmental Authority.
(c) Enforceability, etc. Each Operative Agreement to which it is a
party has been duly executed and delivered by it and constitutes, or upon
execution and delivery will constitute, a legal, valid and binding
obligation enforceable against it in accordance with the terms thereof.
(d) Litigation. No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or threatened by
or against the Lessor (a) with respect to any of the Operative Agreements
or any of the transactions contemplated hereby or thereby, or (b) which
could reasonably be expected to have a material adverse effect on the
assets, liabilities, operations, business or financial condition of the
Lessor.
(e) Assignment. Lessor has not assigned or transferred any of its
right, title or interest in or under the Lease, any other Operative
Agreement or any of the Properties, except in accordance with the other
Operative Agreements.
(f) No Default. The Lessor is not in default under or with respect to
any of its Contractual Obligations in any respect which could have a
material adverse effect on the assets, liabilities, operations, business or
financial condition of the Lessor. No Default or Event of Default
attributable to it has occurred and is continuing.
(g) Use of Proceeds. The proceeds of the Loans and the Investor
Contribution shall be applied by the Lessor solely in accordance with the
provisions of the Operative Agreements.
(h) Chief Place of Business. The Lessor's chief place of business,
chief executive office and office where the documents, accounts and records
relating to the transactions contemplated by this Agreement and each other
Operative Agreement are
17
kept are located at Wilmington Trust Company, Xxxxxx Square North, 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
(i) Federal Reserve Regulations. The Lessor is not engaged principally
in, and does not have as one of its most important activities, the business
of extending credit for the purpose of purchasing or carrying any margin
stock (within the meaning of Regulation U of the Board), and no part of the
proceeds of the Loans will be used by it, directly or indirectly, to
purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock or for any purpose
that violates, or is inconsistent with, the provisions of Regulations of
the Board, including but not limited to, T, U or X of the Board.
(j) Investment and Holding Company Status. The Lessor is not (i) an
"investment company" as defined in, or subject to regulation under the
Investment Company Act of 1940 or (ii) a "holding company" as defined in,
or subject to regulation under, the Public Utility Holding Company Act of
1935.
(k) Securities Act. Neither the Lessor nor any Person authorized by
the Lessor to act on its behalf has offered or sold any interest in the
Property or the Notes, or in any similar security or interest relating to
the Property, or in any security the offering of which for the purposes of
the Securities Act would be deemed to be part of the same offering as the
offering of the aforementioned securities to, or solicited any offer to
acquire any of the same from, any Person other than, in the case of the
Notes, the Agent, and neither the Lessor nor any Person authorized by the
Lessor to act on its behalf will take any action which would subject the
issuance or sale of any interest in the Property or the Notes to the
provisions of Section 5 of the Securities Act or require the qualification
of any Operative Agreement under the Trust Indenture Act of 1939, as
amended.
(l) ERISA. Each Investor is making the Investor Contribution
contemplated to be made by it hereunder in the ordinary course of its
business, and no part of such amount constitutes the assets of any Plan.
(m) Lessor Liens. The Property is free and clear of all Lessor Liens.
7.3 Representations and Warranties of the Lessee on the Initial
Closing Date. The Lessee represents and warrants to each of the other parties
hereto as of the Initial Closing Date as follows:
(a) Corporate Status. The Lessee and each Material Subsidiary (a) is a
duly organized and validly existing corporation or other entity in good
standing under the laws of the jurisdiction of its organization and has the
corporate or other organizational power
18
and authority to own its property and assets and to transact the business
in which it is engaged and (b) has duly qualified and is authorized to do
business and is in good standing in all jurisdictions (i) where a Property
is located and (ii) where it is otherwise required to be so qualified,
except where the failure to be so qualified could not reasonably be
expected to result in a Material Adverse Effect.
(b) Corporate Power and Authority. Each of the Lessee and the
Guarantors has the corporate power and authority to execute, deliver and
carry out the terms and provisions of the Operative Agreements to which it
is a party and has taken all necessary corporate action to authorize the
execution, delivery and performance of the Operative Agreements to which it
is a party. Each of the Lessee and the Guarantors has duly executed and
delivered each Operative Agreement to which it is a party and each such
Operative Agreement constitutes the legal, valid and binding obligation of
each of the Lessee and the Guarantors enforceable in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
subject to general principles of equity.
(c) No Violation. Neither the execution, delivery and performance by
any of the Lessee or the Guarantors of the Operative Agreements to which it
is a party nor compliance with the terms and provisions thereof nor
consummation of the transactions contemplated therein will (i) contravene
any applicable provision of any material law, statute, rule, regulation,
order, writ, injunction or decree of any court or governmental
instrumentality, (ii) result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in
the creation or imposition of (or the obligation to create or impose) any
Lien upon any of the property or assets of the Lessee, the Guarantor or any
of the Restricted Subsidiaries pursuant to, the terms of any material
indenture (including the Senior Note Indenture), loan agreement, lease
agreement, mortgage, deed of trust, agreement or other material instrument
to which the Lessee or any of the Restricted Subsidiaries is a party or by
which it or any of its property or assets is bound, in which, in the case
of either clause (i) or (ii), could have a Material Adverse Effect, or
(iii) violate any provision of the certificate of incorporation or by-laws
of the Lessee, the Guarantor or any of the Restricted Subsidiaries.
(d) Litigation. Except as set forth in the Lessee's Form 10-K for the
fiscal year ended May 28, 1999 as filed with the Securities and Exchange
Commission or any successor thereto, there are no actions, suits or
proceedings (including, without limitation, Environmental Claims) pending
or, to the knowledge of the Lessee, threatened with respect to the Lessee
or any of its Subsidiaries that could reasonably be expected to result in a
Material Adverse Effect.
19
(e) Federal Reserve Regulations. Neither the Lessee nor any of its
Subsidiaries is engaged principally, or as one of its important activities,
in business which will violate the provisions of Regulation T, U or X of
the Board.
(f) Governmental Approvals. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with,
or exemption by, any Governmental Authority is required to authorize or is
required in connection with (i) the execution, delivery and performance of
any Operative Agreement or (ii) the legality, validity, binding effect or
enforceability of any Operative Agreement, except any of the foregoing as
to which the failure to obtain or make could not reasonably be expected to
have a Material Adverse Effect.
(g) Investment Company Act. The Lessee is not an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(h) True and Complete Disclosure. (i) All factual information and data
(taken as a whole) heretofore or contemporaneously furnished by the Lessee,
any of its Subsidiaries or any of their respective authorized
representatives in writing to the Lessor, the Investor, the Agent and/or
any Lender on or before the Initial Closing Date (including, without
limitation, (A) the Confidential Information Memorandum and (B) all
information contained in the Operating Agreements) for purposes of or in
connection with the Operative Agreements or any transaction contemplated
herein or therein was true and complete in all material respects on the
date as of which such information or data is dated or certified and was not
incomplete by omitting to state any material fact necessary to make such
information and data (taken as a whole) not misleading at such time in
light of the circumstances under which such information or data was
furnished, it being understood and agreed that for purposes of this Section
7.3(h)(i), such factual information and data shall not include projections
and pro forma financial information.
(ii) The projections and pro forma financial information contained in
the information and data referred to in paragraph (i) above were based on
good faith estimates and assumptions believed by the Lessee to be
reasonable at the time made, it being recognized by the Lessor, the
Investor, the Agent and the Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the
period or periods covered by any such projections may differ from the
projected results.
(i) Financial Condition: Financial Statements. The consolidated
balance sheet of the Lessee and its Subsidiaries at May 28, 1999, and the
related consolidated statements of income and cash flows for the fiscal
year ended as of such date, which statements have been audited by Deloitte
& Touche, LLP, independent certified public
20
accountants, who delivered an unqualified opinion with respect thereto in
each case and which have been delivered to the Agent and each Investor on
the Initial Closing Date present fairly in all material respects the
consolidated financial position of the Lessee and its Subsidiaries at the
respective dates of said statements and the results of operations for the
respective periods covered thereby. All such financial statements have been
prepared in accordance with GAAP consistently applied except to the extent
provided in the notes to said financial statements. There has been no
Material Adverse Change since May 28, 1999, other than solely as a result
of changes in general economic conditions.
(j) Tax Returns and Payments. Each of the Lessee and its Subsidiaries
has filed all federal income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it that have become due, other
than those not yet delinquent or contested in good faith. The Lessee and
each of its Subsidiaries have paid, or have provided adequate reserves (in
the good faith judgment of the management of the Lessee) in accordance with
GAAP for the payment of, all material federal, state and foreign income
taxes applicable for all prior fiscal years and for the current fiscal year
to the Initial Closing Date.
(k) Compliance with ERISA. Each Plan is in compliance with ERISA, the
Code and any applicable Requirement of Law; no Reportable Event has
occurred (or is reasonably likely to occur) with respect to any Plan; no
Plan is insolvent or in reorganization (or is reasonably likely to be
insolvent or in reorganization), and no written notice of any such
insolvency or reorganization has been given to the Lessee, any Subsidiary
or any ERISA Affiliate; no Plan (other than a multiemployer plan) has an
accumulated or waived funding deficiency (or is reasonably likely to have
such a deficiency); neither the Lessee nor any Subsidiary nor any ERISA
Affiliate has incurred (or is reasonably likely expected to incur) any
liability to or on account of a Plan pursuant to Section 409, 502(i),
502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971
or 4975 of the Code or has been notified in writing that it will incur any
liability under any of the foregoing Sections with respect to any Plan; no
proceedings have been instituted (or are reasonably likely to be
instituted) to terminate or to reorganize any Plan or to appoint a trustee
to administer any Plan, and no written notice of any such proceedings has
been given to the Lessee, any Subsidiary or any ERISA Affiliate; and no
lien imposed under the Code or ERISA on the assets of the Lessee or any
Subsidiary or any ERISA Affiliate exists (or is reasonably likely to exist)
nor has the Lessee, any Subsidiary or any ERISA Affiliate been notified in
writing that such a lien will be imposed on the assets of the Lessee, any
Subsidiary or any ERISA Affiliate on account of any Plan, except to the
extent that a breach of any of the foregoing representations, warranties or
agreements in this Section 7.3(k) would not result, individually or in the
aggregate, in an amount of liability that would be reasonably likely to
have a Material Adverse Effect. No Plan (other than a multiemployer plan)
has an
21
Unfunded Current Liability that would, individually or when taken together
with any other liabilities referenced in this Section 7.3(k), be reasonably
likely to have a Material Adverse Effect. With respect to Plans that are
multiemployer plans (as defined in Section 3(37) of ERISA), the
representations and warranties in this Section 7.3(k), other than any made
with respect to (i) liability under Section 4201 or 4204 of ERISA or (ii)
liability for termination or reorganization of such Plans under ERISA, are
made to the best knowledge of the Lessee.
(l) Subsidiaries. Schedule 7.3(l) lists each Subsidiary of the Lessee
(and the direct and indirect ownership interest of the Lessee therein), in
each case existing on the Initial Closing Date. To the knowledge of the
Lessee, each Material Subsidiary as of the Initial Closing Date has been so
designated on Schedule 7.3(1).
(m) Patents, etc. The Lessee and each of the Restricted Subsidiaries
have obtained all patents, trademarks, servicemarks, trade names,
copyrights, licenses and other rights, free from burdensome restrictions,
that are necessary for the operation of their respective businesses as
currently conducted except where the failure to obtain any such rights
could not reasonably be expected to have a Material Adverse Effect.
(n) Environmental Laws. (i) Other than instances of noncompliance that
could not reasonably be expected to have a Material Adverse Effect: (1) the
Lessee and each of its Subsidiaries are in compliance with all
Environmental Laws in all jurisdictions in which the Lessee and each of its
Subsidiaries are currently doing business (including, without limitation,
having obtained all material permits required under Environmental Laws);
and (2) the Lessee will comply and cause each of its Subsidiaries to comply
with all such Environmental Laws (including, without limitation, all
material permits required under Environmental Laws).
(ii) Neither the Lessee nor any of its Subsidiaries has treated,
stored, transported or disposed of Hazardous Materials at or from any
currently or formerly owned land, buildings and improvements owned or
leased by the Lessee or any of its Subsidiaries, but excluding all
operating fixtures and equipment, whether or not incorporated into
improvements, or facility relating to its business in a manner that could
reasonably be expected to have a Material Adverse Effect.
(iii) Nothing in Section 7.3(a) and (b) above shall affect the
operation or interpretation of any other environmental covenants,
representations or warranties in this Agreement or in any of the other
Operative Agreements.
(o) Properties. The Lessee and each of the Restricted Subsidiaries
have good title to or leasehold interest in all properties that are
necessary for the operation of their
22
respective businesses as currently conducted and as proposed to be
conducted, free and clear of all Liens (other than any Liens permitted by
any of the Operative Agreements) and except where the failure to have such
good title could not reasonably be expected to have a Material Adverse
Effect.
7.4 Representations and Warranties of the Trust Company on the Initial
Closing Date. The Trust Company represents and warrants to each of the other
parties hereto as of the Initial Closing Date as follows:
(a) Due Organization, etc. It is a banking corporation duly organized
and validly existing and in good standing under the laws of the State of
Delaware and has the power and authority to enter into and perform its
obligations under the Trust Agreement and has the corporate power and
authority to act as the trustee under the Trust Agreement and to enter into
and perform the obligations under each of the other Operative Agreements to
which Trust Company or the Trust, as the case may be, is or will be a party
and each other agreement, instrument and document to be executed and
delivered by it on or before the Initial Closing Date in connection with or
as contemplated by each such Operative Agreement to which the Trust Company
or the Trust, as the case may be, is or will be a party.
(b) Authorization; No Conflict. The execution, delivery and
performance of each Operative Agreement to which it is a party, either in
its individual capacity or (assuming due authorization, execution and
delivery of the Trust Agreement by the Investor) as the Trust, as the case
may be, has been duly authorized by all necessary action on its part and
neither the execution and delivery thereof, nor the consummation of the
transactions contemplated thereby, nor compliance by it with any of the
terms and provisions thereof (i) does or will require any approval or
consent of any trustee or holders of any of its indebtedness or
obligations, (ii) does or will contravene any current United States federal
law, governmental rule or regulation relating to its banking or trust
powers, (iii) does or will contravene or result in any breach of or
constitute any default under, or result in the creation of any Lien upon
any of its property under, its charter or by-laws, or any indenture,
mortgage, chattel mortgage, deed of trust, conditional sales contract, bank
loan or credit agreement or other agreement or instrument to which it is a
party or by which it or its properties may be bound or affected or (iv)
does or will require any Governmental Action by any Governmental Authority
of the United States or the State of Delaware regulating its banking or
trust powers.
(c) Trust Company Enforceability, etc. The Trust Agreement and,
assuming the Trust Agreement is the legal, valid and binding obligation of
the Investor, each other Operative Agreement to which Trust Company or the
Trust, as the case may be, is a party
23
have been, or on or before the Closing Date will be, duly executed and
delivered by Trust Company or the Trust, as the case may be, and the Trust
Agreement and each such other Operative Agreement to the extent entered
into by the Trust Company constitutes, or upon execution and delivery will
constitute, a legal, valid and binding obligation enforceable against Trust
Company in accordance with the terms thereof.
(d) Litigation. No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or threatened by
or against the Trust Company with respect to any of the Operative
Agreements or any of the transactions contemplated hereby or thereby.
7.5 Representations and Warranties of the Lessee on Property Closing
Dates. The Lessee hereby represents and warrants to each of the other parties
hereto as of each Property Closing Date as follows:
(a) Representations and Warranties. The representations and warranties
of the Lessee set forth herein and of the Lessee, the Construction Agent and
each Guarantor set forth in each of the other Operative Agreements are true and
correct in all respects on and as of such Property Closing Date as if made on
and as of such Property Closing Date. The Construction Agent, the Lessee and
each Guarantor are in compliance with their respective obligations under the
Operative Agreements and there exists no Default or Event of Default under any
of the Operative Agreements.
(b) No Default. No Default or Event of Default will occur under any of
the Operative Agreements as a result of, or after giving effect to, the Advance
requested by the Requisition on such Property Closing Date.
(c) Authorization by the Lessee. The execution and delivery of each
Lease Supplement, Memorandum of Lease, Consent to Assignment and other Operative
Agreement delivered by the Lessee on such Property Closing Date and the
performance of the obligations of the Lessee under each such Lease Supplement,
Memorandum of Lease, Consent to Assignment and other Operative Agreements have
been duly authorized by all requisite corporate action of the Lessee.
(d) Execution and Delivery by the Lessee. Each Lease Supplement,
Memorandum of Lease, Consent to Assignment and other Operative Agreement
delivered on such Property Closing Date by the Lessee have been duly executed
and delivered by the Lessee.
(e) Valid and Binding Obligations. Each Lease Supplement, Memorandum
of Lease, Consent to Assignment and other Operative Agreement delivered by the
Lessee on such
24
Property Closing Date is a legal, valid and binding obligation of
the Lessee, enforceable against the Lessee in accordance with its respective
terms.
(f) Recording of Documents. Each of the Deed, or the Ground Lease or a
Memorandum of Ground Lease, as applicable, the Lease Supplement, the Memorandum
of Lease, the Assignment of Lease, the Consent to the Assignment of Lease and
the Mortgage delivered on such Property Closing Date has been recorded with the
appropriate Governmental Authorities in the order set forth in this paragraph,
and the UCC Financing Statements with respect to the Property being acquired
will be filed with the appropriate Governmental Authorities (or are held by the
Title Company or a closing agent acceptable to Agent and are in a position to be
so filed and recorded, as applicable).
(g) Priority of Liens. When recorded, (i) each Mortgage, each
Assignment of Lease and each Memorandum of Lease delivered on such Property
Closing Date, constitutes a valid and perfected first lien on each applicable
Property (or leasehold interest in a Ground Lease, as the case may be) in an
amount not less than the Tranche A/B Property Cost with respect to such
Property, subject only to the Permitted Exceptions, and (ii) the Lessor
Financing Statements perfect the Lessor's interest under the Lease to the extent
the Lease is a security agreement governed by Article 9 of the Uniform
Commercial Code.
(h) Flood Zone. No portion of any Property being acquired by the
Lessor on such Property Closing Date is located in an area identified as a
special flood hazard area by the Federal Emergency Management Agency or other
applicable agency, or if any such Property is located in an area identified as a
special flood hazard area by the Federal Emergency Management Agency or other
applicable agency, then flood insurance has been obtained for such Property in
accordance with Section 14.2(b) of the Lease and in accordance with the National
Flood Insurance Act of 1968, as amended.
(i) Insurance Coverage. The Lessee maintains insurance coverage for
each Property being acquired by the Lessor on such Property Closing Date which
meets the requirements of Section 14.1 of the Lease and all of such coverage is
in full force and effect.
(j) Legal Requirements. Each Property being acquired by the Lessor on
such Property Closing Date complies with all material Legal Requirements
(including all zoning and land use laws and Environmental Laws), to the extent
of all Legal Requirements applicable to its condition as of the Property Closing
Date.
(k) Consents, etc. All material consents, licenses and building
permits required by all Legal Requirements for construction, completion,
occupancy and operation of each Property being acquired on such Property Closing
Date have been obtained and are in full force
25
and effect (or if not yet obtained or available, such consents, licenses and
building permits should be obtainable in the ordinary course).
(l) Utilities. All utility services and facilities necessary for the
use of the Improvements existing, or to be constructed, on the Land (including
gas, electrical, water and sewage services and facilities) will be available to
the Property on or prior to the Outside Completion Date.
(m) Environmental Matters.
(1) The Property being acquired on such Property Closing Date
does not contain any Hazardous Materials in amounts or concentrations
which (i) constitute a violation of, or (ii) could give rise to
liability under, any Environmental Law, other than a violation or
liability which would have a de minimis effect on the Property.
(2) The Property and all operations at the Property are in
compliance and, to the knowledge of the Lessee have in the last ten
years been in compliance, in all material respects with all applicable
Environmental Laws, and there is no contamination at, on or under the
Property or violation of any Environmental Law with respect to the
Property or the business operated by Lessee or any of its Subsidiaries
at the Property (the "Business"), other than a violation which would
have a de minimis effect on the Property.
(3) Neither the Lessee nor any of its Subsidiaries has received
any notice of violation, alleged violation, non-compliance, liability
or potential liability regarding compliance with Environmental Laws
with regard to the Property, nor does the Lessee have knowledge that
any such notice will be received or is being threatened.
(4) To the knowledge of Lessee or any of its Subsidiaries,
Hazardous Materials have not been transported or disposed of from the
Property in violation of any Environmental Law, nor have any Hazardous
Materials been generated, treated, stored or disposed of at, on or
under the Property in violation of any applicable Environmental Law.
(5) No judicial proceeding or governmental or administrative
action is pending or, to the best knowledge of the Lessee, threatened,
under any Environmental Law to which the Lessee or any Subsidiary is
or will be named as a party with respect to the Property, nor are
there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other
26
administrative or judicial requirements outstanding under any
Environmental Law with respect to the Property or the Business.
(6) There has been no release or threat of release of Hazardous
Materials at or from the Property, or arising from or related to the
operations of the Lessee or any Subsidiary in connection with the
Property, in violation of or in amounts or in a manner that could
reasonably be expected to give rise to any material liability under
any Environmental Laws.
(7) Nothing in this Section 7.5(m) shall affect the operation or
interpretation of any other environmental covenants, representations
or warranties in this Agreement or in any of the other Operative
Agreements.
(n) Title to the Properties. Upon the acquisition of each Property on
such Property Closing Date, the Lessor has, as applicable, (i) good and
marketable title to such Property in fee simple or (ii) good and valid leasehold
title to such Property leased under any Ground Lease, subject in each case only
to the Permitted Exceptions. The Lessor has the right to grant the Mortgage on
such Property. Except as otherwise provided in the Lease, the Lessor will at all
times have good and marketable title to such Properties, subject only to
Permitted Exceptions.
(o) Location of the Properties. Each Property being acquired on such
Property Closing Date is located in the continental United States of America.
(p) Execution and Delivery by the Construction Agent. The execution
and delivery of each Operative Agreement delivered by the Construction Agent on
such date and the performance of the Construction Agent's obligations under each
Agency Agreement Supplement and Operative Agreement have been duly authorized by
all requisite corporate action of the Construction Agent.
(q) Agency Agreement Supplements. Each Operative Agreement delivered
by the Construction Agent on such date has been duly executed and delivered by
the Construction Agent.
(r) Valid and Binding Obligations of the Construction Agent. Each
Operative Agreement delivered by the Construction Agent on such date is a legal,
valid and binding obligation of the Construction Agent, enforceable against the
Construction Agent in accordance with its terms.
27
(s) Conditions Precedent in Operative Agreements. All conditions
precedent contained in this Agreement and in the other Operative Agreements
relating to the acquisition of a Property by the Lessor have been satisfied in
full or waived by the Agent and the Lessor.
(t) Xxxx-Xxxxx-Xxxxxx. The acquisition of the Property being acquired
on such Property Closing Date does not conflict with, violate, or require the
consent of any governmental entity, under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
7.6 Representations and Warranties of the Lessor on Property Closing
Dates. The Lessor hereby represents and warrants to each of the other parties
hereto as of each Property Closing Date as follows:
(a) Representations and Warranties; No Default. The representations
and warranties of the Lessor set forth herein and in each of the other Operative
Agreements are true and correct in all respects on and as of such Property
Closing Date as if made on and as of such Property Closing Date. The Lessor is
in compliance with its respective obligations under the Operative Agreements and
there exists no Default or Event of Default caused by or attributable to it
under any of the Operative Agreements. No Default or Event of Default caused by
or attributable to it will occur under any of the Operative Agreements as a
result of, or after giving effect to, the Advance requested by the Requisition
on such Property Closing Date.
(b) Authorization by the Lessor. The execution and delivery of each
Lease Supplement, Memorandum of Lease, Mortgage, Assignment of Lease and other
Operative Agreement delivered by the Lessor on such Property Closing Date and
the performance of the obligations of the Lessor under each such Lease
Supplement, Memorandum of Lease, Mortgage, the Assignment of Lease and other
Operative Agreement have been duly authorized by all requisite action of the
Lessor.
(c) Execution and Delivery by the Lessor. Each Lease Supplement,
Memorandum of Lease, Mortgage, Assignment of Lease and other Operative Agreement
delivered by the Lessor on such Property Closing Date have been duly executed
and delivered by the Lessor.
(d) Valid and Binding Obligations. Each Lease Supplement, Memorandum
of Lease, Mortgage, Assignment of Lease and other Operative Agreement delivered
by the Lessor on such Property Closing Date is a legal, valid and binding
obligation of the Lessor, enforceable against the Lessor in accordance with its
terms.
(e) Conditions Precedent in Operative Agreements. All conditions
precedent contained in this Agreement and in the other Operative Agreements to
be satisfied by the Lessor relating to the acquisition of a Property by the
Lessor have been satisfied in full.
28
7.7 Representations and Warranties of the Lessee Upon each Funding
Date. The Lessee hereby represents and warrants to each of the other parties
hereto as of each Funding Date as follows:
(a) Representations and Warranties. The representations and warranties
of the Construction Agent, the Lessee and each Guarantor set forth herein and in
each of the other Operative Agreements are true and correct in all respects on
and as of such Funding Date as if made on and as of such Funding Date. The
Construction Agent, the Lessee and each Guarantor is in compliance with their
respective obligations under the Operative Agreements and there exists no
Default or Event of Default under any of the Operative Agreements. No Default or
Event of Default will occur under any of the Operative Agreements as a result
of, or after giving effect to, the Advance requested by the Requisition on such
date.
(b) Title to Properties. The Lessor, as applicable, (i) has good and
marketable title to each Property in fee simple and (ii) good and valid
leasehold title to each Property under any Ground Lease, in each case subject
only to the Permitted Exceptions; provided that the Lessee makes no
representations or warranties as to the absence of Lessor Liens.
(c) Priority of Liens. Each Mortgage, Supplement to the Assignment of
Lease and Lease Memorandum constitutes a valid and perfected first lien on each
applicable Property (or leasehold interest in a Ground Lease, as the case may
be) in an amount not less than the Tranche A/B Property Cost with respect to
such Property, subject only to Permitted Exceptions.
(d) Insurance. The Construction Agent has obtained insurance coverage
covering the Property which meets the requirements of the Agency Agreement and
the other Operative Agreements before commencing construction, repairs or
Modifications, as the case may be, and such coverage is in full force and
effect.
(e) Property-Related Matters. Each Construction Period Property, when
improved in accordance with the Plans and Specifications, will comply in all
material respects and each Completed Property complies in all material respects
with all Legal Requirements (including all applicable zoning and land use laws
and Environmental Laws) and Insurance Requirements. The Plans and Specifications
have been or will be prepared in accordance with all applicable Legal
Requirements (including all applicable Environmental Laws and building,
planning, zoning and fire codes) and upon completion of the applicable
Improvements in accordance with the Plans and Specifications, such Improvements
on the Construction Period Property will not encroach in any manner onto any
adjoining land (except as permitted by express written easements or variance)
and such Improvements and the use thereof by the Lessee and its agents,
assignees, employees, invitees, lessees, licensees and tenants will comply with
all applicable Legal Requirements (including all applicable Environmental Laws
and building, planning, zoning and fire codes). Upon completion of such
Improvements in accordance with
29
the Plans and Specifications, (i) there will be no material defects to such
Improvements including the plumbing, heating, air conditioning and electrical
systems thereof and (ii) all water, sewer, electric, gas, telephone and drainage
facilities and all other utilities required to adequately service such
Improvements for its intended use will be available pursuant to adequate permits
(including any that may be required under applicable Environmental Laws). There
is no action, suit or proceeding (including any proceeding in condemnation or
eminent domain or under any applicable Environmental Law) pending or, to the
knowledge of Lessee, threatened which materially adversely affects the title to,
or the use, operation or value of, the Properties. No fire or other casualty
with respect to the Properties has occurred which fire or other casualty has had
a material adverse effect on the Lessee's ability to perform its obligations
under the Agency Agreement and the other Operative Agreements. All utilities
serving the Properties, or proposed to serve the Properties in accordance with
the Plans and Specifications, are located in, and in the future will be located
in, and vehicular access to the Improvements on each of the Properties is
provided by, either public rights-of-way abutting the Property or Appurtenant
Rights. All material applicable licenses, approvals, authorizations, consents,
permits (including, without limitation, building, demolition and environmental
permits, licenses, approvals, authorizations and consents), easements and
rights-of-way, including proof of dedication, required for (i) the use,
treatment, storage, transport, disposal or disposition of any Hazardous
Substance on, at, under or from the Properties during the construction of the
Improvements thereon and the use and operation of the Improvements following
such construction, (ii) the construction of the Improvements in accordance with
the Plans and Specifications and the Agency Agreement and (iii) the use and
operation of the Improvements following such construction as permitted pursuant
to the Lease have been obtained from the appropriate Governmental Authorities
having jurisdiction or from private parties (or if not yet obtained or
available, such consents, licenses and building permits should be obtainable in
the ordinary course).
(f) Lease Requirements. The Improvements, when completed, will comply
with all requirements and conditions set forth in the Lease and all other
conditions and requirements of the Operative Documents.
(g) Conditions Precedent contained in the Operative Agreements. All
conditions precedent contained in this Agreement and in the other Operative
Agreements relating to the relevant Advance have been satisfied.
(h) Projected Completion Value. The Property Cost of each Improvement
as established by the Budget will not exceed an amount equal to one hundred ten
percent (110%) of the Projected Completion Value with respect to such
Improvements.
7.8 Representations and Warranties of the Lessor Upon each Funding
Date. The Lessor hereby represents and warrants to each of the other parties
hereto as of each Funding Date as follows:
30
(a) Representations and Warranties. The representations and warranties
of the Lessor set forth herein and in each of the other Operative Agreements are
true and correct in all respects on and as of such Funding Date as if made on
and as of such Funding Date. The Lessor is in compliance with its respective
obligations under the Operative Agreements.
(b) Authority of the Lessor. The execution and delivery of each
Operative Agreement delivered by the Lessor on such date and the performance of
the obligations of the Lessor under each Operative Agreement has been duly
authorized by all requisite action of the Lessor.
(c) Execution and Delivery by the Lessor. Each Operative Agreement
delivered by the Lessor on such date has been duly executed and delivered by the
Lessor.
(d) Valid and Binding Obligations of the Lessor. Each Operative
Agreement delivered by the Lessor on such date is a legal, valid and binding
obligation of the Lessor, enforceable against the Lessor in accordance with its
terms.
(e) Conditions Precedent contained in the Operative Agreements. All
conditions precedent contained in this Agreement and in the other Operative
Agreements to be satisfied by the Lessor relating to the relevant Advance have
been satisfied in full.
7.9 Representations and Warranties of the Investor Upon Funding Dates.
The Investor hereby represents and warrants to each of the other parties hereto
as of each Funding Date that: (a) the representations and warranties of the
Investor set forth herein and in each of the other Operative Agreements are true
and correct in all respects on and as of such Funding Date as if made on and as
of such Funding Date and (b) the Investor is in compliance with its obligations
under the Operative Agreements.
SECTION 8. PAYMENT OF CERTAIN EXPENSES
Lessor shall, from the proceeds of the Advances, for the benefit of
the Investor, the Trust Company, the Trust, the Agent and each of the Lenders,
take the following actions, as applicable:
8.1 Transaction Expenses. In each case, to the extent not paid by
third parties, (a) On the Initial Closing Date, pay, or cause to be paid, all
reasonable fees, expenses and disbursements of each of the Lessor's, the Trust
Company's, the Agent's, Lessee's and the Investor's counsel in connection with
the transactions contemplated by the Operative Agreements and incurred in
connection with such Initial Closing Date, all Transaction Expenses, and all
other expenses in connection with such Initial Closing Date, including all costs
relating to all fees, taxes and expenses for the recording, registration and
filing of documents.
31
(b) On each Property Closing Date or each subsequent Funding Date,
pay, or cause to be paid, all reasonable fees, expenses and disbursements of
each of the Lessor's, the Trust Company's, the Agent's, Lessee's and the
Investor's counsel in connection with the transactions contemplated by the
Operative Agreements and incurred in connection with such Property Closing Date,
all Transaction Expenses arising from such Property Closing Date, and all other
expenses in connection with such Property Closing Date, including all expenses
relating to each Appraisal, and all fees, taxes and expenses for the recording,
registration and filing of documents.
8.2 Brokers' Fees and Stamp Taxes. Pay or cause to be paid brokers'
fees and any and all stamp, transfer and other similar taxes, fees and excises,
if any, including any interest and penalties, which are payable in connection
with the transactions contemplated by this Agreement and the other Operative
Agreements.
8.3 Certain Fees and Expenses. Pay or cause to be paid (i) the initial
and annual Trust Company's fee and all expenses of the Trust Company and any
necessary co-trustees (including reasonable counsel fees and expenses) or any
successor owner trustee, for acting as trustee under the Trust Agreement, (ii)
all costs and expenses incurred by the Lessee, the Agent, the Investor, the
Trust Company or the Lessor in entering into any future amendments or
supplements with respect to any of the Operative Agreements, whether or not such
amendments or supplements are ultimately entered into, or giving or withholding
of waivers of consents hereto or thereto, which have been requested by the
Lessee, and (iii) all costs and expenses incurred by the Lessor, the Lessee, the
Investor, the Trust Company or the Agent in connection with any purchase of any
Property by the Lessee pursuant to Section 20 of the Lease.
8.4 Credit Agreement and Related Obligations. (a) Pay, on or prior to
the due date thereof, all costs, fees, indemnities, expenses and other amounts
(other than principal and interest on the Loans, but including breakage costs
and interest on overdue amounts pursuant to Section 2.14 of the Credit Agreement
or otherwise) required to be paid by the Lessor (except for such amounts as to
which the Trust Company is individually liable) under any Operative Agreement.
(b) Pay the Agent all fees specified in the Fee Letter at the time and
in the manner required by the Fee Letter any pay the Investor any fees due and
owing to the Investor as of the day of such Advance.
(c) Pay the Investor promptly after receipt of notice therefor any
additional amounts payable to the Investor in respect of the Investor
Contribution under Sections 2.13, 2.14 and 2.15 of the Credit Agreement (it
being agreed that the Investor is, for purposes of this Agreement, a beneficiary
of the provisions of Sections 2.13, 2.14 and 2.15 of the Credit Agreement and
subject to the provisions of Sections 2.16 and 2.17, mutatis mutandis).
32
8.5 Commitment Fees. (a) Pay to the Agent for the account of each
Lender the Commitment Fee on each Commitment Fee Payment Date.
(b) Pay to the Investor the Investor Commitment Fee for the period
from and including the first day of the Commitment Period to the Maturity Date,
computed at a rate per annum equal to the Commitment Fee Rate on the average
daily amount of the Available Investor Commitment during the period for which
payment is made, payable quarterly in arrears on each Commitment Fee Payment
Date, commencing on the first such date to occur after the Initial Closing Date.
(c) The Commitment Fee and the Investor Commitment Fee shall be
calculated on the basis of a 365- (or 366-, as the case may be) day year for the
actual days elapsed. If all or a portion of the Commitment Fee or the Investor
Commitment Fee shall not be paid when due, such overdue amount shall bear
interest, payable by the Lessee on demand, at a rate per annum equal to the
applicable Overdue Rate, from the date of such non-payment until such amount is
paid in full (as well after as before judgment).
8.6 Overdue Rate. If all or a portion of the Investor Yield, the
Investor Contribution or any other amount owed to the Investor shall not be paid
when due, such overdue amount shall bear interest, payable on demand, at a rate
per annum equal to the applicable Overdue Rate, from the date of such
non-payment until such amount is paid in full (as well after as before
judgment).
SECTION 9. OTHER COVENANTS AND AGREEMENTS
9.1 Covenants of the Trust and the Investor. Each of the parties
hereby agrees that so long as this Agreement is in effect:
(a) Discharge of Liens. Each of the Investor, the Trust and the Trust
Company, in its individual capacity, will not create or permit to exist at any
time, and will, at its own cost and expense, promptly take such action as may be
necessary duly to discharge, or to cause to be discharged, all Lessor Liens on
the Property attributable to it or any of its Affiliates; provided, however,
that the Investor, the Trust and the Trust Company shall not be required to so
discharge any such Lessor Lien while the same is being contested in good faith
by appropriate proceedings diligently prosecuted so long as such proceedings
shall not involve any material danger of impairment of the Liens of the Security
Documents or of the sale, forfeiture or loss of, and shall not interfere with
the use or disposition of, the Property or title thereto or any interest therein
or the payment of Rent.
33
(b) Trust Agreement. Without prejudice to any right under the Trust
Agreement of the Trust Company to resign, or the Investor's right under the
Trust Agreement to remove the institution acting as owner trustee, each of the
Investor and the Trust Company hereby agrees with the Lessee and the Agent (i)
not to terminate or revoke the trust created by the Trust Agreement except as
permitted by the Trust Agreement, (ii) not to amend, supplement, terminate or
revoke or otherwise modify any provision of the Trust Agreement without the
prior written consent of any party hereto adversely affected by such amendment
and (iii) to comply with all of the terms of the Trust Agreement, the
nonperformance of which would adversely affect such party.
(c) Successor Trust Company. The Trust Company or any successor may
resign or be removed by the Investor as trustee of the Trust, a successor
trustee may be appointed, and a corporation may become the trustee under the
Trust Agreement, only in accordance with the provisions of Article 9 of the
Trust Agreement and with the consent of the Lessee, which consent shall not be
unreasonably withheld or delayed.
(d) Indebtedness; Other Business. The Trust shall not contract for,
create, incur or assume any indebtedness, or, without the consent of the
Investor and Lenders holding at least 66 2/3 % in the aggregate of the
Commitment Percentages, enter into any business or other activity, other than
pursuant to or under the Operative Agreements.
(e) No Violation. The Investor will not instruct the Trust to take any
action in violation of the terms of any Operative Agreement.
(f) No Voluntary Bankruptcy. Neither Investors nor the Trust shall,
nor shall Investors cause the Trust to (i) commence any case, proceeding or
other action under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, arrangement,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (ii) seek appointment of a receiver, trustee, custodian
or other similar official for it or for all or any substantial benefit of its
creditors; and neither the Investor nor the Trust shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in this paragraph.
(g) Change of Chief Place of Business. The Trust shall give prompt
notice to the Lessee and the Agent if the Trust's chief place of business or
chief executive office, or the office where the records concerning the accounts
or contract rights relating to the Property are kept, shall cease to be located
at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000 or if it shall change its name.
(h) Loan Documents. Provided that no Lease Default is continuing, none
of the Lenders, the Trust, the Lessor, the Agent nor the Investor shall consent
to or permit any material
34
amendment, supplement, waiver or other modification of the terms and provisions
of the Credit Agreement, the Notes or the Security Documents, in each case
without the prior written consent of the Lessee.
(i) Disposition of Assets. The Trust shall not convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or
assets, whether now owned or hereafter acquired, except to the extent expressly
authorized by the Operative Agreements.
(j) Compliance with Operative Agreements. The Trust shall at all times
observe and perform all of the covenants, conditions and obligations required to
be performed by it under each Operative Agreement to which it is a party.
9.2 Repayment of Certain Amounts on Maturity Date. The Investor, the
Lessor and the Agent hereby agree that if (i) on the Maturity Date (after giving
effect to all payments made by the Lessee under the Lease and the application of
all sales proceeds pursuant to Section 8 of the Credit Agreement) there remains
any outstanding principal or accrued and unpaid interest under the Tranche B
Notes (the aggregate amount of such outstanding principal, the "Tranche B
Deficit") and (ii) during the Marketing Period the Lessor or the Investor have
received any Marketing Period Equity Return, then on the Maturity Date the
Investor shall pay to the Agent an amount up to the amount of the Tranche B
Deficit, but in no event greater than the Marketing Period Equity Return
received by it.
9.3 Amendment of Certain Documents. The Agent, for itself and on
behalf of the Lenders, hereby agrees for the benefit of the Trust and the
Investor that it will not amend, alter or otherwise modify, or consent to any
amendment, alteration or modification of, the Credit Agreement and Lease
(including the definitions of any terms used in such document) without the prior
written consent of the Trust and the Investor, as the case may be, if such
amendment, alteration or modification would materially and adversely affect the
interests of the Trust or the Investor. The parties hereto agree that provisions
requiring such consent include, but are not limited to, any amendment,
alteration or modification that would release the Lessee from any of its
obligations in respect of the payment of Basic Rent, Supplemental Rent,
Termination Value, Maximum Residual Guarantee Amount or the Purchase Option
Price or any other payments in respect of the Property as set forth in the
Lease, or amend the provisions of Section 8 of the Credit Agreement, or reduce
the amount of, or change the time or manner of payment of, obligations of the
Lessee as set forth in the Lease, or create or impose any obligation on the part
of the Trust or the Investor under the Lease, or extend or shorten the duration
of the Term, or modify the provisions of this Section 9.3.
9.4 Proceeds of Casualty. The Lessor and the Investor agree, for the
benefit of the Agent and the Lenders, that if at any time either the Lessor or
the Investor receives any proceeds as a result, directly or indirectly, of any
Casualty or Condemnation with respect to the
35
Property which the Lessor is entitled to retain and hold in accordance with the
terms of the Lease, the Lessor and the Investor agree that they will promptly
deposit such amounts in an account with the Agent. The Lessor and the Investor
also agree that they will execute and deliver such documents and instruments as
the Agent may reasonably request in order to grant the Agent, for the benefit of
the Lenders, a valid and perfected, first priority security interest in such
proceeds.
9.5 Intercreditor Agreement. The Lessee, the Agent, the Lenders and
the Lessor hereby agree and confirm that the provisions of Section 8 of the
Credit Agreement are intended to constitute an intercreditor agreement and a
subordination agreement under Section 510 of the Bankruptcy Code or any similar
provision therein.
9.6 Walk Away Event. If a Walk-Away Event shall have occurred, the
Lessor or the Lessee shall have the right to terminate the Lease and the other
Operative Agreements solely with respect to the affected property by notice to
the other party and, upon termination by either party and satisfaction of the
other requirements under Section 10 of the Lease, the Lessee shall have no
financial or other obligations under any of the Operative Agreements except (i)
specific obligations of the Lessee under the Operative Agreements that accrued
prior to termination of the Lease and (ii) obligations of the Lessee arising out
of any Event of Default which (A) are independent of the Walk-Away Event, (B) do
not occur solely as a result of the Walk-Away Event and (C) occur prior to
termination of the Lease.
9.7 Administrative Agent under Participation Agreement and Mortgages.
For purposes of this Agreement and each Mortgage, the parties hereto agree that
Agent shall be the Agent of the Investors and the Lenders, with Agent's duties
and obligations hereunder and thereunder being subject to the limitations, and
Agent being entitled to the rights, set forth in Section 7 of the Credit
Agreement. Agent shall also perform its obligations under Section 2.4 of the
Credit Agreement as to Investor Yield for the benefit of the Investors. Where
Agent's satisfaction is required under Sections 6.2(i), 6.2(p) and 6.2(q) of
this Agreement and in the definition of "Independent Engineer" in Annex A to
this Agreement, such satisfaction shall also include the reasonable satisfaction
of the Required Investors; provided, however, that the Required Investors shall
provide their comments of dissatisfaction directly to the Agent, who shall pass
on such comments to interested and involved parties (which parties shall include
the Lessee); provided, further, that notwithstanding the foregoing, the Lessee
shall have no obligation under this Agreement to ascertain or verify the
satisfaction of the Required Investors and may instead rely wholly on its
communications with, and satisfaction of, the Agent in respect of the subject
matter of such Sections and such definition.
36
SECTION 10. CREDIT AGREEMENT
10.1 Lessee's Credit Agreement Rights. Notwithstanding anything to the
contrary contained in the Credit Agreement, the Agent, the Lessee, the Investor
and the Trust hereby agree that:
(a) the Lessee shall have the right to give the notices referred to in
Section 2.3 of the Credit Agreement;
(b) the Lessee shall have the right to convert or continue Loans in
accordance with Section 2.6 of the Credit Agreement;
(c) the Lessee shall receive copies of all notices delivered to the
Lessor under the Credit Agreement and the other Operative Agreements and such
notices shall not be effective until received;
(d) the Lessee shall have the right to select Interest Periods in
accordance with the terms of the Credit Agreement;
(e) the Lessee shall have the right to give notice of prepayment of
the Loans in accordance with the Credit Agreement, provided that if the Lessee
shall give notice of prepayment of the Loans, the Lessee shall prepay a pro rata
portion of the Investor Contribution;
(f) the Lessee shall have the right to cure, to the extent susceptible
to a cure, any Default or Event of Default of the Lessor under the Credit
Agreement;
(g) the Lessee shall have the right to approve any successor Agent
pursuant to Section 7.9 of the Credit Agreement;
(h) the Lessee shall have the right, on behalf of the Lessor, to
select any person or persons (including the Lessee) to whom funds may be paid at
the discretion of the Lessor in accordance with Sections 8.1 and 8.2 of the
Credit Agreement;
(i) the Lessee shall have the right to consent to any assignment by a
Lender, if required pursuant to Section 9.7 of the Credit Agreement; and
(j) the Lessee shall have the right to designate the portion of the
Loans on which interest is due and payable for purposes of the definitions of
"Allocated Interest" and "Allocated Investor Yield";
37
(k) the Lessee shall have the right to request that another lending
office be designated pursuant to Section 2.17 of the Credit Agreement;
(l) the Lessee shall have the obligation to notify the Agent of the
amounts or information specified in Section 5.8 of the Credit Agreement; and
(m) without limiting the foregoing clauses (a) through (l), and in
addition thereto, (x) the Trust shall not exercise any right under the Credit
Agreement without giving the Lessee at least ten (10) Business Days' prior
written notice (or such shorter period as may be required but in no case less
than three (3) Business Days) and, following such notice, the Trust shall take
such action, or forbear from taking such action (other than an execution of any
amendment, waiver or modification thereof, as the Lessee shall direct and (y)
the Lessee shall have the right to exercise any other right of the Trust under
the Credit Agreement upon not less than two (2) Business Days' prior written
notice from the Lessee to the Trust and the Investor. Notwithstanding the
foregoing, the Investor shall retain the exclusive right to direct the Trust
with respect to the exercise of the Excepted Rights.
SECTION 11. TRANSFER OF INTEREST
11.1 Restrictions on Transfer. (a) The Investor may not assign, convey
or otherwise transfer any of its right, title or interest in or to the Trust
Estate or the Trust Agreement without the consent of the Borrower, Lessee
(provided no Event of Default shall exist at the time of such assignment) and
the Agent (which in each case shall not be unreasonably withheld or delayed, it
being understood that, without limitation, the Lessee shall have the right to
withhold its consent to any assignment if, in order for such assignment to
comply with applicable law, the Lessee would be required to obtain the consent
of, or make any filing or registration with, any Governmental Authority). Any
transfer by the Investor as above provided, shall be effected pursuant to an
agreement in form and substance reasonably satisfactory to the Agent, the
Investor, the Trust Company, the Lessee and their respective counsel.
(b) Notwithstanding the provisions of Section 11.1(a) to the contrary,
the Investor may at any time sell to an Affiliate or to any Investor or Lender
or any Affiliate of any Investor or Lender participating interests in the
economic interest held by the Investor in the Trust Estate or the Trust
Agreement, provided that the Investor's obligations under this Agreement and the
other Operative Agreements to the other parties hereto and thereto shall remain
unchanged, the Investor shall remain solely responsible for the performance
thereof and the Agent, the Lessee and the other parties to the Operative
Agreements shall continue to deal solely and directly with the Investor in
connection with the Investor's rights and obligations under this Agreement and
the other Operative Agreements.
38
11.2 Effect of Transfer. From and after any transfer effected in
accordance with this Section 11, the transferor shall be released, to the extent
of such transfer, from its liability hereunder and under the other documents to
which it is a party in respect of obligations to be performed on or after the
date of such transfer; provided, however, that any transferor Investor shall
remain liable under the Trust Agreement to the extent that the transferee
Investor shall not have assumed the obligations of the transferor Investor
thereunder. Upon any transfer by the Trust or an Investor as above provided, any
such transferee shall assume the obligations of the Trust, and the Lessor or
Investor, as the case may be, and shall be deemed the "Trust", "Lessor" or
"Investor", as the case may be, for all purposes of such documents and each
reference herein to the transferor shall thereafter be deemed a reference to
such transferee for all purposes, except as provided in the preceding sentence.
Notwithstanding any transfer of all or a portion of the transferor's interest as
provided in this Section 11, the transferor shall be entitled to all benefits
accrued and all rights vested prior to such transfer including rights to
indemnification under any such document.
SECTION 12. INDEMNIFICATION
12.1 General Indemnity. (a) The Lessee, whether or not any of the
transactions contemplated hereby shall be consummated, hereby assumes liability
for and agrees to defend, indemnify and hold harmless each Indemnified Person on
an After Tax Basis from and against any Claims which may be imposed on, incurred
by or asserted against an Indemnified Person in any way relating to or arising
or alleged to arise out of (i) the financing, refinancing, purchase, acceptance,
rejection, ownership, design, construction, delivery, acceptance, nondelivery,
leasing, subleasing, possession, use, operation, repair, modification,
transportation, condition, sale, return, repossession (whether by summary
proceedings or otherwise), or any other disposition of the Property or any part
thereof; (ii) any latent or other defects in any Property whether or not
discoverable by an Indemnified Person or the Lessee; (iii) a violation of
Environmental Laws, Environmental Claims or other loss of or damage relating to
the Property; (iv) the Operative Agreements, or any transaction contemplated
thereby; (v) any breach by the Lessee or the Construction Agent of any of its
respective representations or warranties under the Operative Agreements or
failure by the Lessee to perform or observe any covenant or agreement to be
performed by either under any of the Operative Agreements; and (vi) personal
injury, death or property damage to any Person relating to the Property,
including Claims based on strict liability in tort; but in any event excluding
(x) Claims to the extent such Claims arise solely out of the gross negligence or
willful misconduct of such Indemnified Person, (y) Claims to the extent such
Claims arise solely out of events occurring after the expiration of the Term and
after the Lessee's discharge of all its obligations under the Lease or (z) any
Taxes including any Claim (or any portion of a Claim) made upon an Indemnified
Person by a third party that at its origin is based upon a Tax (other than
amounts necessary to make any payments hereunder on an After Tax Basis, where
the Lessee is otherwise specifically required to make such payments on an After
39
Tax Basis). The Lessee shall be entitled to control, and shall assume full
responsibility for the defense of any Claim; provided, however, that the Trust,
the Trust Company, the Agent and the Investor named in such Claim, may each
retain separate counsel (the Investors collectively obtaining a single counsel)
at the sole expense of the Lessee in the event of and to the extent of a
material conflict or a potential material conflict. The Lessee and each
Indemnified Person agree to give each other prompt written notice of any Claim
hereby indemnified against but the giving of any such notice by an Indemnified
Person shall not be a condition to the Lessee's obligations under this Section
12.1(a), except to the extent failure to give such notice materially prejudices
Lessee's rights hereunder. After an Indemnified Person has been fully
indemnified for a Claim pursuant to this Section 12.1(a), and so long as no
Lease Event of Default shall have occurred and be continuing, the Lessee shall
be subrogated to any right of such Indemnified Person with respect to such
Claim. None of the Indemnified Persons shall settle a Claim without the consent
of the Lessee, which consent shall not be unreasonably withheld or delayed.
(b) Notwithstanding anything to the contrary herein, during the
Construction Period, the Lessee shall not be obligated under any of the
Operative Agreements to indemnify any Person with respect to any costs arising
from third-party damage claims other than (i) those third-party claims caused by
or resulting from the actions or failure to act by Lessee, or any of its agents,
employees, consultants, contractors or subcontractors (or anyone else under the
control of Lessee or such Persons), while Lessee is in possession or control of
the Property and (ii) those Claims imposed, incurred or asserted pursuant to (x)
clause (iii) of Section 12.1(a), (y) a breach of the representations made by
Lessee pursuant to Section 7.5(m), or (z) a violation by Lessee of the covenants
contained in Section 9.1 of the Lease and Section 2.7(a) of the Agency Agreement
with respect to Environmental Laws or Section 9.2 of the Lease.
12.2 General Tax Indemnity. (a) The Lessee shall pay and assume
liability for, and does hereby agree to indemnify, protect and defend the
Property and all Tax Indemnitees, and hold them harmless against, all
Impositions on an After Tax Basis.
(b) Provided that no Default or Event of Default has occurred and is
continuing, if any Tax Indemnitee obtains a refund or a reduction in a liability
(but only if such reduction relates to a Tax not otherwise indemnifiable
hereunder and has not been taken into account in determining the amount of a
payment on an After Tax Basis) as a result of any Imposition paid or reimbursed
by the Lessee (in whole or in part), such Tax Indemnitee shall promptly pay to
the Lessee the lesser of (x) the amount of such refund or reduction in liability
and (y) the amount previously so paid or advanced by the Lessee, in each case
net of reasonable expenses not already paid or reimbursed by the Lessee. Any
subsequent loss of such refund or reduction paid to the Lessee shall be treated
as an Imposition indemnifiable under this Section 12.2 without regard to clause
(i) through (vii) in the second paragraph of the definition of Impositions.
40
(c)(i) Subject to the terms of Section 12.2(g), the Lessee shall pay
or cause to be paid all Impositions directly to the taxing authorities where
feasible and otherwise to the Tax Indemnitee, as appropriate, and the Lessee
shall at its own expense, upon such Tax Indemnitee's reasonable request, furnish
to such Tax Indemnitee copies of official receipts or other satisfactory proof
evidencing such payment.
(ii) In the case of Impositions for which no contest is conducted
pursuant to Section 12.2(g) and which the Lessee pays directly to the taxing
authorities, the Lessee shall pay such Impositions prior to the latest time
permitted by the relevant taxing authority for timely payment. In the case of
Impositions for which the Lessee reimburses a Tax Indemnitee, the Lessee shall
do so within twenty (20) days after receipt by the Lessee of demand by such Tax
Indemnitee describing in reasonable detail the nature of the Imposition and the
basis for the demand (including the computation of the amount payable), but in
no event shall the Lessee be required to pay such reimbursement prior to thirty
(30) days before the latest time permitted by the relevant taxing authority for
timely payment. In the case of Impositions for which a contest is conducted
pursuant to Section 12.2(g), the Lessee shall pay such Impositions or reimburse
such Tax Indemnitee for such Impositions, to the extent not previously paid or
reimbursed pursuant to subsection (a), prior to the latest time permitted by the
relevant taxing authority for timely payment after conclusion of all contests
under Section 12.2(g).
(iii) Impositions imposed with respect to a Property for a billing
period during which the Lease expires or terminates with respect to such
Property (unless the Lessee has exercised the Purchase Option with respect to
the Property) shall be adjusted and prorated on a daily basis between the Lessee
and the Lessor, whether or not such Imposition is imposed before or after such
expiration or termination and each party shall pay or reimburse the other for
each party's pro rata share thereof, except if the Lease has terminated in
connection with the Lease Event of Default or Credit Agreement Event of Default,
in which case Lessee shall be obligated to indemnify for such Impositions paid
for real property taxes until the sooner in time of (x) one year after Lease
termination or (y) the sale of such Property by sale or foreclosure pursuant to
the Operative Agreements.
(iv) At the Lessee's request, the amount of any indemnification
payment by the Lessee pursuant to subsection (a) shall be verified and certified
by an independent public accounting firm mutually acceptable to the Lessee and
the Tax Indemnitee. The fees and expenses of such independent public accounting
firm shall (i) in the case of the Trust Company or the Trustee, be paid by the
Lessee, and (ii) in the case of all other Tax Indemnitees, be paid by the Lessee
unless such verification shall result in an adjustment in the Lessee's favor of
10% or more of the payment as computed by such Tax Indemnitee, in which case
such fee shall be paid by such Tax Indemnitee.
41
(d) The Lessee shall be responsible for preparing and filing any real
and personal property or ad valorem tax returns in respect of the Property. In
case any other report or tax return shall be required to be made with respect to
any obligations of the Lessee under or arising out of subsection (a) and of
which the Lessee has knowledge, the Lessee, at its sole cost and expense, shall
notify the relevant Tax Indemnitee of such requirement and (except if such Tax
Indemnitee notifies the Lessee that such Person intends to file such report or
return) (A) to the extent required or permitted by and consistent with Legal
Requirements, make and file in its own name such return, statement or report;
and (B) in the case of any other such return, statement or report required to be
made in the name of such Tax Indemnitee, advise such Tax Indemnitee of such fact
and prepare such return, statement or report for filing by such Tax Indemnitee
or, where such return, statement or report shall be required to reflect items in
addition to any obligations of the Lessee under or arising out of subsection
(a), provide such Tax Indemnitee at the Lessee's expense with information
sufficient to permit such return, statement or report to be properly made with
respect to any obligations of the Lessee under or arising out of subsection (a).
Such Tax Indemnitee shall, upon the Lessee's request and at the Lessee's
expense, provide any data maintained by such Tax Indemnitee (and not otherwise
within the control of the Lessee) with respect to the Property which the Lessee
may reasonably require to prepare any required tax returns or reports;
(e) If as a result of the payment or reimbursement by the Lessee of
any expenses of a Tax Indemnitee or the payment of any Transaction Expenses
incurred in connection with the transactions contemplated by the Operative
Agreements, any Tax Indemnitee shall suffer a net increase in any federal, state
or local income tax liability, the Lessee shall indemnify such Tax Indemnitee
(without duplication of any indemnification required by subsection (a)) on an
After Tax Basis for the amount of such increase. The calculation of any such net
increase shall take into account any current or future tax savings and the
timing thereof realized or reasonably expected to be realized by such Tax
Indemnities, in respect thereof, and shall be based on a mutually agreed upon
discount rate, as well as any interest, penalties and additions to tax payable
by such Tax Indemnities, in respect thereof;
(f) As between the Lessee and the Lessor, the Lessee shall be
responsible for, and the Lessee shall indemnify and hold harmless the Trust
Company in its individual capacity and as the trustee of Lessor (without
duplication of any indemnification required by subsection (a)) on an After Tax
Basis against, any obligation for United States withholding taxes imposed in
respect of the interest payable on the Notes to the extent, but only to the
extent, Lessor has actually paid funds to a taxing authority with respect to
such withholding taxes (and, if the Lessor receives a demand for such payment
from any taxing authority, the Lessee shall discharge such demand on behalf of
the Lessor);
(g)(i) If a written claim is made against any Tax Indemnitee or if any
proceeding shall be commenced against such Tax Indemnitee (including a written
notice of such
42
proceeding), for any Impositions, such Tax Indemnitee shall promptly notify
Lessee in writing and shall not take action with respect to such claim or
proceeding without the consent of Lessee for thirty (30) days after the receipt
of such notice by Lessee; provided, that, in the case of any such claim or
proceeding, if action shall be required by law or regulation to be taken prior
to the end of such 30-day period, such Tax Indemnitee shall, in such notice to
Lessee, inform Lessee, and no action shall be taken with respect to such claim
or proceeding without the consent of Lessee before the end of such shorter
period; provided, further, that the failure of such Tax Indemnitee to give the
notices referred to this sentence shall not diminish Lessee's obligation
hereunder except to the extent such failure precludes Lessee from contesting all
or part of such claim.
(ii) If, within thirty (30) days of receipt of such notice from the
Tax Indemnitee (or such shorter period as the Tax Indemnitee has noticed Lessee
is required by law or regulation for the Tax Indemnitee to commence such
contest), Lessee shall request in writing that such Tax Indemnitee contest such
Imposition, the Tax Indemnitee shall, at the expense of Lessee, in good faith
conduct and control such contest (including, without limitation, by pursuit of
appeals) relating to the validity, applicability or amount of such Impositions
(provided, however, that (A) if such contest can be pursued independently from
any other proceeding involving a tax liability of such Tax Indemnitee, the Tax
Indemnitee, at Lessee's request, shall allow Lessee to conduct and control such
contest and (B) in the case of any contest that Lessee is not entitled to
control, the Tax Indemnitee may request Lessee to conduct and control such
contest if possible or permissible under applicable law or regulation) by, in
the sole discretion of the Person conducting and controlling such contest, (1)
resisting payment thereof, (2) not paying the same except under protest, if
protest is necessary and proper, (3) if the payment be made, using reasonable
efforts to obtain a refund thereof in appropriate administrative and judicial
proceedings, or (4) taking such other action as is reasonably requested by
Lessee from time to time. Furthermore, in the case of a contest controlled by
the Lessee, the Lessee shall be required to acknowledge its liability for the
Impositions which are the subject of the claim if unfavorably resolved as a
condition to such control of the contest.
(iii) The party controlling any contest shall consult in good faith
with the non-controlling party and shall keep the non-controlling party
reasonably informed as to the conduct of such contest; provided that all
decisions ultimately shall be made in the sole discretion of the controlling
party. The parties agree that a Tax Indemnitee may at any time decline to take
further action with respect to the contest of any Imposition and may settle such
contest if such Tax Indemnitee shall waive its rights to any indemnity from
Lessee that otherwise would be payable in respect of such claim (and any future
claim by any taxing authority with respect to other taxable periods that are
based, in whole or in part, upon the resolution of such claim) and shall pay to
Lessee any amount previously paid or advanced by Lessee pursuant to this Section
12.2 by way of indemnification or advance for the payment of an Imposition (but
excluding previously
43
paid costs described in Section 12.2(g)(iv)(A)), and no other then future
liability of the Lessee is likely with respect to such Imposition.
(iv) Notwithstanding the foregoing provisions of this Section 12.2, a
Tax Indemnitee shall not be required to take any action and Lessee shall not be
permitted to contest any Impositions in its own name or that of the Tax
Indemnitee unless (A) Lessee shall have agreed to pay and shall pay to such Tax
Indemnitee on demand and on an After Tax Basis all reasonable costs, losses and
expenses that such Tax Indemnitee actually incurs in connection with contesting
such Impositions, including, without limitation, all reasonable legal,
accounting and investigatory fees and disbursements, (B) in the case of a claim
that must be pursued in the name of an Tax Indemnitee (or an Affiliate thereof),
the amount of the potential indemnity (taking into account all similar or
logically related claims that have been or could be raised in any audit
involving such Tax Indemnitee for which Lessee may be liable to pay an indemnity
under this Section 12.2) is more than $50,000, unless the pursuit of such
contest is in a manner mutually satisfactory to the Tax Indemnitee and the
Lessee, (C) the Tax Indemnitee shall have reasonably determined that the action
to be taken will not result in any material danger of sale, forfeiture or loss
of any Property, or any part thereof or interest therein, will not interfere
with the payment of Rent, and will not result in risk of criminal liability, (D)
if such contest shall involve the payment of the Imposition prior to the
contest, Lessee shall provide to the Tax Indemnitee an interest-free advance in
an amount equal to the Imposition that the Tax Indemnitee is required to pay
(with no additional net after-tax cost to such Tax Indemnitee), (E) in the case
of a claim that must be pursued in the name of an Tax Indemnitee (or an
Affiliate thereof), Lessee shall have provided to such Tax Indemnitee an opinion
of independent tax counsel selected by the Lessee and reasonably satisfactory to
such Tax Indemnitee stating that a reasonable basis exists to contest such claim
(or, in the case of an appeal of an adverse determination, an opinion of such
counsel to the effect that there is substantial authority for the position
asserted in such appeal) and (F) no Event of Default shall have occurred and be
continuing. In no event shall a Tax Indemnitee be required to appeal an adverse
judicial determination to the United State Supreme Court. In addition, a Tax
Indemnitee shall not be required to contest any claim in its name (or that of an
Affiliate) if the subject matter thereof shall be of a continuing nature and
shall have previously been decided adversely by a court of competent
jurisdiction pursuant to the contest provisions of this Section 12.2, unless
there shall have been a change in law (or interpretation thereof) and the Tax
Indemnitee shall have received, at the Lessee's expense, an opinion of
independent tax counsel selected by the Tax Indemnitee and reasonably acceptable
to the Lessee stating that as a result of such change in law (or interpretation
thereof), it is more likely than not that the Tax Indemnitee will prevail in
such contest.
44
SECTION 13. MISCELLANEOUS
13.1 Survival of Agreements. The representations, warranties,
covenants, indemnities and agreements of the parties provided for in the
Operative Agreements, and the parties' obligations under any and all thereof,
shall survive the execution and delivery of this Agreement, the transfer of the
Property to the Trust, the construction of any Improvements, any disposition of
any interest of the Trust in the Property or the Improvements or any interest of
the Investor in the Trust, the payment of the Notes and any disposition thereof
and shall be and continue in effect notwithstanding any investigation made by
any party and the fact that any party may waive compliance with any of the other
terms, provisions or conditions of any of the Operative Agreements. Except as
otherwise expressly set forth herein or in other Operative Agreements, the
indemnities of the parties provided for in the Operative Agreements shall
survive the expiration or termination of any thereof.
13.2 No Broker, etc. Each of the parties hereto represents to the
others that it has not retained or employed any broker, finder or financial
adviser to act on its behalf in connection with this Agreement, nor has it
authorized any broker, finder or financial adviser retained or employed by any
other Person so to act, except for the Arranger, the fees of which shall be paid
by the Lessee. Any party who is in breach of this representation shall indemnify
and hold the other parties harmless from and against any liability arising out
of such breach of this representation.
13.3 Notices. Unless otherwise specifically provided herein, all
notices, consents, directions, approvals, instructions, requests and other
communications required or permitted by the terms hereof to any Person to be
effective shall be in writing (including by facsimile transmission) and shall be
deemed to have been duly given or made (a) when delivered by hand, (b) one
Business Day after delivery to a nationally recognized courier service
specifying overnight delivery, (c) three Business Days after being deposited in
the mails, certified or registered, postage prepaid or (d) in the case of
facsimile notice, when sent and receipt has been confirmed, addressed to such
Person as indicated:
If to the Lessee, to it at:
KinderCare Learning Centers, Inc.
000 XX Xxxxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
with copies to:
45
KinderCare Learning Centers, Inc.
000 XX Xxxxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
Stoel Rives LLP
000 XX Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxx X. Xxxxxx
Fax: (000) 000-0000
KinderCare Learning Centers, Inc.
x/x Xxxxxxxx Xxxxxx Xxxxxxx & Co., L.P.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Fax: (000) 000-0000
If to the Investors, to them at:
Scotiabanc Inc.
x/x Xxx Xxxx xx Xxxx Xxxxxx
000 XX 0xx Xxx., Xxxxx 000
Xxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
If to the Lenders, to them at:
The Investors, at the above addresses
Bank of America, N.A.
000 Xxxxxxxxxx Xxxxxx, Mail Code: CA5-705-41-89
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Leader, MD
Facsimile: (000) 000-0000
The Chase Manhattan Bank
000 Xxxx Xxxxxx, 0xx Xxxxx
00
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Citicorp USA, Inc.
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx
Facsimile: (000) 000-0000
Credit Suisse First Boston
Eleven Madison Avenue, 20th Floor
New York, NY 10010-3629
Attention: Xxxxxx Xxxx
Facsimile: (000) 000-0000
Bankers Trust Company
0 XX Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxx/Xxxxx Xxxxxxx
Facsimile: (000) 000-0000/7351
Xxxxxxx Xxxxx Capital Corporation
000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxx
Facsimile: (000)000-0000
and
Attention: Xxxxx X.X. Xxxxxx
Facsimile: (000)000-0000
If to the Trust, to it at:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
47
If to the Agent, to it at:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Credit and Lending Group
Fax: (000) 000-0000
From time to time any party may designate a new address for purposes of
notice hereunder by notice to each of the other parties hereto.
13.4 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
13.5 Amendments and Termination. (a) Neither this Agreement nor any of
the terms hereof may be terminated, amended, supplemented, waived or modified
except by an instrument in writing signed by the party against which the
enforcement of the termination, amendment, supplement, waiver or modification
shall be sought. This Agreement may be terminated by an agreement signed in
writing by the Trust, the Investor, the Lessee, the Agent and the Lenders.
Notwithstanding the foregoing provisions to the contrary, (i) in the case of the
Lenders, the action of the Required Lenders shall control, except as otherwise
provided in Section 9.1 of the Credit Agreement and (ii) in the case of the
Investors, the action of the Required Investors shall control, except as
otherwise provided in the Trust Agreement.
(b) To the extent a definition contained in Annex A hereto is to be
amended such amendment shall be accomplished by an amendment only to the
Operative Agreements in which such defined term is used or otherwise
incorporated in such Operative Agreement.
13.6 Headings, etc.. The Table of Contents and headings of the various
Sections and Subsections of this Agreement are for convenience of reference only
and shall not modify, define, expand or limit any of the terms or provisions
hereof.
13.7 Parties in Interest. Except as expressly provided herein, none of
the provisions of this Agreement are intended for the benefit of any Person
except the parties hereto.
13.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW BUT EXCLUDING TO THE
MAXIMUM
48
EXTENT PERMITTED BY LAW ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW
RULES).
13.9 Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13.10 Liability Limited. The Lessee and the Investor each acknowledge
and agree that the Trust Company is (except as otherwise expressly provided
herein or therein) entering into this Agreement and the other Operative
Agreements to which it is a party (other than the Trust Agreement), solely in
its capacity as trustee under the Trust Agreement and not in its individual
capacity and that Trust Company shall not be liable or accountable under any
circumstances whatsoever in its individual capacity for or on account of any
statements, representations, warranties, covenants or obligations stated to be
those of the Trust, except for its own gross negligence or willful misconduct
and as otherwise expressly provided herein or in the other Operative Agreements.
13.11 Rights of Lessee. Notwithstanding any provision of the Operative
Agreements, if at any time all obligations (i) of the Trust under the Credit
Agreement and the Security Documents and (ii) of the Lessee under the Operative
Agreements have in each case been satisfied or discharged in full, then the
Lessee shall be entitled to (a) terminate the Lease (to the extent not
previously terminated) and (b) receive all amounts then held under the Operative
Agreements and all proceeds with respect to the Properties. Upon the fulfillment
of the obligations contained in clauses (i) and (ii) above, the Lessor shall
transfer to the Lessee all of its right, title and interest in and to the
Properties (to the extent not previously transferred to the Lessee in accordance
with the Lease) and any amounts or proceeds referred to in the foregoing clause
(b) shall be paid over to the Lessee.
13.12 Further Assurances. The parties hereto shall promptly cause to
be taken, executed, acknowledged or delivered, at the sole expense of the
Lessee, all such further acts, conveyances, documents and assurances as the
other parties may from time to time reasonably request in order to carry out and
effectuate the intent and purposes of this Agreement, the other Operative
Agreements and the transactions contemplated hereby and thereby (including,
without limitation, the preparation, execution and filing of any and all Uniform
Commercial Code financing statements and other filings or registrations which
the parties hereto may from time to time request to be filed or effected). The
Lessee, at its own expense, shall take such action as may be reasonably
requested in order to maintain and protect all security interests provided for
hereunder or under any other Operative Agreement.
49
13.13 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
13.14 No Representation or Warranty. Nothing contained herein, in any
other Operative Agreement or in any other materials delivered to the Lessee in
connection with the transactions contemplated hereby or thereby shall be deemed
a representation or warranty by the Agent or the Arranger or any of their
Affiliates as to the proper accounting treatment or tax treatment that should be
afforded to the Lease and the Lessor's ownership of the Properties and the Agent
expressly disclaims any representation or warranty with respect to such matters.
13.15 Highest Lawful Rate. It is the intention of the parties hereto
to conform strictly to applicable usury laws and, anything herein to the
contrary notwithstanding, the obligations of the Lessee, the Lessor or the
Investor or any other party under any Operative Agreement, shall be subject to
the limitation that payments of interest or of other amounts constituting
interest shall not be required to the extent that receipt thereof would be in
excess of the Highest Lawful Rate, or otherwise contrary to provisions of law
applicable to the recipient limiting rates of interest which may be charged or
collected by the recipient. Accordingly, if the transactions or the amount paid
or otherwise agreed to be paid for the use, forbearance or detention of money
under this Agreement, the Lease and any other Operative Agreement would exceed
the Highest Lawful Rate or otherwise be usurious with respect to the recipient
of any such amount, then, in that event, notwithstanding anything to the
contrary in this Agreement, the Lease or any other Operative Agreement, it is
agreed as follows as to the recipient of any such amount:
(a) the provisions of this Section 13.15 shall govern and control over
any other provision in this Agreement, the Lease and any other Operative
Agreement and each provision set forth therein is hereby so limited;
(b) the aggregate of all consideration which constitutes interest that
is contracted for, charged or received under this Agreement, the Lease, or any
other Operative Agreement shall under no circumstances exceed the maximum amount
of interest allowed by any Requirement of Law (such maximum lawful interest
rate, if any, with respect to such Lender herein called the "Highest Lawful
Rate"), and all amounts owed under this Agreement, the Lease and any other
Operative Agreement shall be held subject to reduction and (i) the amount of
interest which would otherwise be payable to the recipient hereunder and under
the Lease, the Loan Documents and any other Operative Agreement, shall be
automatically reduced to the amount allowed under any Requirement of Law and
(ii) any unearned interest paid in excess of the Highest Lawful Rate shall be
credited to the payor by the recipient (or, if such consideration shall have
been paid in full, refunded to the payee);
50
(c) all sums paid, or agreed to be paid for the use, forbearance and
detention of the money under this Agreement, the Lease, or any other Operative
Agreement shall, to the extent permitted by any Requirement of Law, be
amortized, prorated, allocated and spread throughout the full term of such
indebtedness until payment in full so that the actual rate of interest is
uniform throughout the full term thereof; and
(d) if at any time the interest, together with any other fees, late
charges and other sums payable pursuant to or in connection with this Agreement,
the Lease, and any other Operative Agreement executed in connection herewith or
therewith, and deemed interest under any Requirement of Law exceeds that amount
which would have accrued at the Highest Lawful Rate, the amount of interest and
any such fees, charges and sums to accrue to the recipient of such interest,
fees, charges and sums pursuant to the Operative Agreement shall be limited,
notwithstanding anything to the contrary in the Operative Agreement to that
amount which would have accrued at the Highest Lawful Rate for the recipient,
but any subsequent reductions, as applicable, shall not reduce the interest to
accrue pursuant to the Operative Agreement below the recipient's Highest Lawful
Rate until the total amount of interest payable to the recipient (including all
consideration which constitutes interest) equals the amount of interest which
would have been payable to the recipient (including all consideration which
constitutes interest), plus the amount of fees which would have been received
but for the effect of this Section 3.15.
13.16 Confidentiality. The Lessor, the Investor, the Agent and each
Lender shall hold all non-public information furnished by or on behalf of the
Lessee in connection with such Investor's and Lender's evaluation of whether to
become an Investor or a Lender hereunder or obtained by such Investor or Lender
or the Agent pursuant to the requirements of this Agreement or any of the other
Operative Agreements ("Confidential Information"), in accordance with its
customary procedure for handling confidential information of this nature and (in
the case of a Lender that is a bank) in accordance with safe and sound banking
practices and in any event may make disclosure as required or requested by any
governmental agency or representative thereof or pursuant to legal process or to
such Investor's or Lender's or the Agent's attorneys, professional advisors or
independent auditors, provided that unless specifically prohibited by applicable
law or court order, each of the Investor, the Lenders and the Agent shall notify
the Lessee of any request by any governmental agency or representative thereof
(other than any such request in connection with an examination of the financial
condition of such Investor or such Lender by such governmental agency) for
disclosure of any such non-public information prior to disclosure of such
information, and provided further that in no event shall any Investor, Lender or
the Agent be obligated or required to return any materials furnished by the
Lessee or any Subsidiary of the Lessee. Subject to this Section 13.16, the
Lessee authorizes each Investor to disclose to any potential assignee of or
participant in the Investor's interest in the Investor Commitment and authorizes
each Lender to disclose to any Participant or Purchasing Lender and any
prospective Participant or Purchasing Lender any and all financial information
in such Investor's or Lender's possession concerning the Lessee and its
Affiliates that has been delivered to such Investor or
51
Lender by or on behalf of the Lessee pursuant to this Agreement or the other
Operative Agreements or which has been delivered to such Investor or Lender by
or on behalf of the Lessee in connection with such Lender's credit evaluation of
the Lessee and its Affiliates prior to becoming a party to this Agreement.
13.17 Year 2000. Any reprogramming required to permit the proper
functioning, in and following the year 2000, of computer and information systems
used in the management of the Lessee's business (including systems supplied by
others or with which such systems interface) to the extent reasonably determined
by Lessee to prevent consequences which could result in an Event of Default or a
Material Adverse Effect, and the testing of all such systems and equipment, as
so reprogrammed, will be completed by October 31, 1999. The cost to the Lessee
of such reprogramming and testing and of the reasonably foreseeable consequences
of year 2000 to the Lessee (including, without limitation, reprogramming errors
and the failure of others' systems or equipment) will not result in an Event of
Default or a Material Adverse Effect.
13.18 Oregon Provisions. UNDER OREGON LAW, MOST AGREEMENTS, PROMISES
AND COMMITMENTS MADE BY LENDERS AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER
CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR
SECURED SOLELY BY THE BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS
CONSIDERATION AND BE SIGNED BY LENDERS TO BE ENFORCEABLE.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
KINDERCARE LEARNING CENTERS, INC.
By: XXX X. XXXXXXX
------------------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
Financial Control & Planning
THE KINDERCARE REALTY TRUST 1999
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Trustee
By: XXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Financial Services Officer
SCOTIABANC INC., as an Investor
By: XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Relationship Manager
BANK OF AMERICA, N.A., as a Lender
By: XXXXX X. LEADER
------------------------------------
Name: Xxxxx X. Leader
Title: Managing Director
THE CHASE MANHATTAN BANK, as Agent
and a Lender
By: XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
CITICORP USA, INC., as a Lender
By: XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director/SCO
CREDIT SUISSE FIRST BOSTON, as a Lender
By: XXXX X'XXXX
------------------------------------
Name: Xxxx X'Xxxx
Title: Vice President
By: XXXXXXX XXXXX
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Associate
BANKERS TRUST COMPANY, as a Lender
By:
------------------------------------
Name:
Title:
XXXXXXX XXXXX CAPITAL CORPORATION,
as a Lender
By: XXXXX X.X. XXXXXX
------------------------------------
Name: Xxxxx X.X. Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA, as a Lender
By: XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Officer
WILMINGTON TRUST COMPANY, in its
individual capacity, only to the extent
expressly set forth herein
By: XXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Financial Services Officer
