REIMBURSEMENT AGREEMENT
dated as of
November 20, 1997
among
MOVIEPLEX REALTY LEASING, L.L.C.,
The Lenders Listed Herein,
and
WACHOVIA BANK, N.A.,
as Agent
REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT dated as of November 20, 1997 among
MOVIEPLEX REALTY LEASING, L.L.C., a New Jersey limited liability company, the
LENDERS listed on the signature pages hereof and WACHOVIA BANK, N.A., as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Certain capitalized terms used in
this Agreement and not defined herein have the meanings set forth in the form of
Lease set forth on Exhibit G and incorporated herein by reference. The terms as
defined in this Section 1.01 shall, for all purposes of this Agreement and any
amendment hereto (except as herein otherwise expressly provided or unless the
context otherwise requires), have the meanings set forth herein:
"Additional Rent" has the meaning set forth in the Lease.
"Additional Rent Collateral Reserve Account" has the meaning
set forth in Section 2.02.
"Adjusted London Interbank Offered Rate" means for any
Interest Period for any Euro-Dollar Rate Tender Advance a rate per annum equal
to the quotient obtained (rounded upwards, if necessary, to the next higher
1/100th of 1%) by dividing (i) the applicable London Interbank Offered Rate for
such Interest Period by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
"Affiliate" of any relevant Person means (i) any Person that
directly, or indirectly through one or more intermediaries, controls the
relevant Person (a "Controlling Person"), (ii) any Person (other than the
relevant Person or a Subsidiary of the relevant Person) which is controlled by
or is under common control with a Controlling Person, or (iii) any Person (other
than a Subsidiary of the relevant Person) of which the relevant Person owns,
directly or indirectly, 20% or more of the common stock or equivalent equity
interests. As used herein, the term "control" means possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agency and Development Agreement" has the meaning set forth
in the Lease.
"Agent" means Wachovia Bank, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as agent for the Lenders hereunder, and its successors and permitted
assigns in such capacity.
"Agent's Letter Agreement" means that certain letter
agreement, dated as of March 18, 1997 between Lessor, Lessee, and the Agent
relating to the structure of the Letters of Credit, and certain fees from time
to time payable by Lessor and Lessee to the Agent, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Agreement" means this Reimbursement Agreement, together with
all amendments, consolidations, modifications, renewals and supplements hereto.
"Applicable Completion Date" has the meaning set forth in the
Lease.
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and Acceptance
executed in accordance with Section 9.08(c) in the form attached as Exhibit C.
"Assignment of Rents" means the Assignment of Rents executed
and delivered by Lessor, substantially in the form of Exhibit J, together with
all amendments, consolidations, modifications, renewals and supplements thereto.
"Authority" has the meaning set forth in Section 8.02.
"Base Rate" means for any Base Rate Tender Advance for any
day, a rate per annum equal to the higher as of such day of (i) the Prime Rate,
or (ii) one-half of one percent above the Federal Funds Rate. For purposes of
determining the Base Rate for any day, changes in the Prime Rate or the Federal
Funds Rate shall be effective on the date of each such change.
"Base Rate Election" has the meaning set forth in Section
2.01(e)(iii).
"Base Rate Tender Advance" means a Tender Advance which bears
or is to bear interest at a rate based upon the Base Rate, and is to be made or
continued as or converted to a Base Rate Tender Advance as a result of a Base
Rate Election pursuant to Section 2.01(e)(iii) or pursuant to the provisions of
Article VIII, as applicable.
"Bonds" means individually and collectively, as the context
shall require, the Series A Bonds and the Series B Bonds.
"Bond Fund" has the meaning set forth in the Indenture.
"Capital Stock" means any nonredeemable limited liability
company membership interests and/or capital stock of Lessor, whether common or
preferred.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. ss. 9601 et. seq. and its implementing
regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
"Change of Law" has the meaning set forth in Section 8.02.
"Closing Certificate" has the meaning set forth in Section
3.01(e).
"Closing Date" means November 20, 1997.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor Federal tax code.
"Collateral" means any and all collateral security consisting
of personal and/or real property, granted by Lessor or any other Person to
secure the Obligations, including without limitation, all such collateral
security granted under the Operative Documents.
"Commitment" means any one, or more, or all, as the context
shall require, of the LC Issuer Commitments and the LC Participant Commitments.
"Common Member" *[material omitted]
"Common Membership Interests" *[material omitted]
"Compliance Certificate" has the meaning set forth in the
Lease.
"Consolidated Cash Flow" has the meaning set forth in the
Lease.
"Construction Commencement Date" has the meaning set forth in
Section 3.02(c).
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with Lessor, are treated as a single employer
under Section 414 of the Code.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money (including, without
limitation, obligations under leases which are intended to be operating leases
for purposes of GAAP and financing leases for property and bankruptcy purposes),
(ii) all obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (iii) all obligations of such Person to pay the
deferred purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (iv) all obligations of such Person
as lessee under capital leases, (v) all obligations of such Person to reimburse
any bank or other Person in respect of amounts payable under a banker's
acceptance, (vi) all Redeemable Preferred Stock of such Person (in the event
such Person is a corporation), (vii) all obligations of such Person to reimburse
any bank or other Person in respect of amounts paid or to be paid under a letter
of credit or similar instrument, (viii) all Debt of others secured by a Lien on
any asset of such Person, whether or not such Debt is assumed by such Person,
(ix) all obligations of such Person with respect to interest rate protection
agreements, foreign currency exchange agreements or other hedging arrangements
(valued as the termination value thereof computed in accordance with a method
approved by the International Swap Dealers Association and agreed to by such
Person in the applicable hedging agreement, if any), and (x) all Debt of others
Guaranteed by such Person.
"Debt to Cash Flow Ratio" means Lessee's ratio of Consolidated
Funded Debt to Consolidated Cash Flow determined in accordance with Section
2.1(v) of the Lease.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Default Rate" means, with respect to any Reimbursement
Obligations, on any day, the sum of 2% plus the then highest interest rate or
fee which may be applicable hereunder (irrespective of whether any such type of
Reimbursement Obligations or fees are actually outstanding hereunder).
---------------
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
"Deferred Maintenance Obligation" has the meaning set forth in
the Lease.
"Disbursement Request" means a "Requisition", as defined in
the Indenture, by Lessor for a Project Cost Disbursement pursuant to the
Indenture.
"Distribution" means any distribution payable to the Preferred
Member or the Common Members pursuant to and in accordance with the provisions
of the Operating Agreement.
"Distribution Payment Date" has the meaning set forth in
Section 2.02.
"Dividends" means for any period the sum of all dividends and
other distributions paid or declared during such period in respect of any
Capital Stock and Redeemable Preferred Stock (other than dividends paid or
payable in the form of additional Capital Stock).
"Dollars" or "$" means dollars in lawful currency of the
United States of America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in Georgia are authorized by law
to close.
"Eligible Lender" means (i) with respect to an LC Issuer, a
Lender which is rated at least A-1 by S&P and P-1 by Moody's, and (ii) with
respect to an LC Participant, a Lender whose senior debt rating is equal to or
better than a rating of A- by S&P and A3 by Moody's.
"Eligible Preferred Member Assignee" *[material omitted]
"Environmental Authority" means any foreign, federal, state,
local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits,
orders, approvals, notices, registrations or other legal prerequisites for
conducting the business of Lessor required by any Environmental Requirement.
"Environmental Judgments and Orders" means all judgments,
decrees or orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent, or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way associated with
any Environmental Requirements.
"Environmental Notices" means notice from any Environmental
Authority or by any other person or entity, of possible or alleged noncompliance
with or liability under any Environmental Requirement, including without
limitation any complaints, citations, demands or requests from any Environmental
Authority or from any other person or entity for correction of any violation of
any Environmental Requirement or any investigations concerning any violation of
any Environmental Requirement.
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* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated with any
Environmental Requirement.
"Environmental Releases" means releases as defined in CERCLA
or under any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement
relating to health, safety or the environment and applicable to Lessor or the
Properties, including but not limited to any such requirement under CERCLA or
similar state legislation and all federal, state and local laws, ordinances,
regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Euro-Dollar Rate" means for any Euro-Dollar Rate Tender
Advance for any applicable Interest Period, a rate per annum equal to the sum
of: (i) the Adjusted London Interbank Offered Rate (as determined by the Agent
for each applicable Interest Period, so long as the Euro-Dollar Rate Election is
in effect pursuant to Section 2.01(e)(iii), with reference to the amount of the
Tender Advance); plus (ii) the amount of the fee which would be payable to such
LC Issuer pursuant to Section 2.01(h) if its Letter of Credit had remained
outstanding; plus (iii) 0.25%, for each applicable Interest Period for which the
Euro-Dollar Rate Election is in effect or until, but excluding, the date such
Tender Advance is paid in full.
"Euro-Dollar Rate Election" has the meaning set forth in
Section 2.01(e)(ii).
"Euro-Dollar Rate Tender Advance" means a Tender Advance which
bears or is to bear interest at a rate based upon the Adjusted London Interbank
Offered Rate, and is to be made or continued as or converted to a Euro-Dollar
Rate Tender Advance as a result of a Euro-Dollar Rate Election pursuant to
Section 2.01(e)(iii).
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Tender Advances is
determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of any Lender to United States
residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
"Event of Default" has the meaning set forth in Section 6.01.
"Excess Income" has the meaning set forth in Section 2.02.
"Expiry Date" means November 5, 2002, or such later date, if
any, to which the Expiry Date has been extended pursuant to Section 2.01(a).
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if the day for which
such rate is to be determined is not a Domestic Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to the Agent on such day on
such transactions, as determined by the Agent.
"Final Project Completion Date" has the meaning set forth in
the Lease.
"Fiscal Quarter" means any fiscal quarter of Lessor.
"Fiscal Year" means any fiscal year of Lessor.
"Fund" means any of the funds established under the Indenture.
"Fund Account Security Agreement" means the Fund Account
Collateral Assignment and Security Agreement executed and delivered by Lessor,
substantially in the form of Exhibit K, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Funded Debt" has the meaning set forth in the Lease.
"GAAP" means generally accepted accounting principles applied
on a basis consistent with those which, in accordance with Section 1.02, are to
be used in making the calculations for purposes of determining compliance with
the terms of this Agreement.
"Governmental Rule" has the meaning set forth in Section
2.01(j).
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to provide collateral security, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Materials" includes, without limitation, (a) solid
or hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. ss. 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b)
"hazardous substance", "pollutant", or "contaminant" as defined in CERCLA, or in
any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including, crude oil or any fraction thereof,
(d) toxic substances, as defined in the Toxic Substances Control Act of 1976, or
in any applicable state or local law or regulation and (e) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide,
and Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from time to
time.
"Holders" means holders of the Bonds from time to time
pursuant to the Indenture.
"Impositions" means all fees, costs, taxes, indemnification
amounts, charges and other expenses payable by Lessor under Article VIII, and
Sections 2.01, 2.04, 7.05, Sections 9.03 and 9.04, or under any of the other
Operative Documents.
"Indenture" means that certain indenture by and between the
Trustee and Lessor dated as of November 1, 1997, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Individual Properties" means, individually and collectively,
as the context may require, Movie Theaters acquired, assembled, and/or
constructed on real property owned, or, with the prior written consent of the
Agent and the Lenders, leased, by Lessor, which Individual Properties are then
leased by Lessor, as lessor, to Lessee pursuant to the terms of the Lease.
"Ineligible Lender" means (i) with respect to an LC Issuer, a
Lender which is rated below A-1 by S&P or P-1 by Moody's, and (ii) with respect
to an LC Participant, a Lender whose senior debt rating is below a rating of A-
by S&P or A3 by Moody's.
"Ineligible Lender At Risk Amount" has the meaning set forth
in Section 2.01(b)(ii).
"Interest Period" means, with respect to each Euro-Dollar
Tender Advance, during the period any Euro-Dollar Rate Election is in effect
pursuant to Section 2.01(e)(iii): (i) the period commencing on the date of such
Euro-Dollar Rate Tender Advance and ending on the numerically corresponding day
in the first month thereafter; and (ii) each 1 month period commencing on the
last day of the previous Interest Period and ending on the numerically
corresponding day in the next month thereafter, unless and until Lessor notifies
the Agent and the relevant LC Issuer pursuant to Section 2.01(e)(iii) that it
has elected the Base Rate Election for such Tender Advance (in which event such
Tender Advance shall become a Base Rate Tender Advance on the last day of the
then existing Interest Period); provided that:
(a) any Interest Period (subject to paragraph (c) below) which
would otherwise end on a day which is not a Euro-Dollar Business Day
shall be extended to the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the appropriate subsequent calendar
month) shall, subject to paragraph (c) below, end on the last
Euro-Dollar Business Day of the appropriate subsequent calendar month;
and
(c) no Interest Period shall be effective for a period which
would begin before the maturity date of the relevant Reimbursement Note
and would otherwise end after such maturity date, and in such case,
such Tender Advance shall be treated for such period as a Base Rate
Tender Advance.
"Investment" means any investment in any Person, whether by
means of purchase or acquisition of obligations or securities of such Person,
capital contribution to such Person, loan or advance to such Person, making of a
time deposit with such Person, Guarantee or assumption of any obligation of such
Person or otherwise.
"Land Acquisition Date" has the meaning set forth in Section
3.02(b).
"LC Issuer" means each bank or financial institution listed on
the signature pages hereof as having an LC Issuer Commitment, and its successors
and assigns.
"LC Issuer Commitment" means, with respect to each LC Issuer,
(i) the amount set forth as such opposite the name of such LC Issuer on the
signature pages hereof, and (ii) as to any LC Issuer which enters into any
Assignment and Acceptance (whether as transferor LC Issuer or as Assignee
thereunder), the amount of such LC Issuer's LC Issuer Commitment after giving
effect to such Assignment and Acceptance.
"LC Participant" refers only to participants in the Wachovia
Letter of Credit (and not to any Person which purchases a risk participation in
the Letter of Credit of any LC Issuer (including, but not limited to, Wachovia)
pursuant to Section 9.08(a)), and means each bank or financial institution
listed on the signature pages hereof as having on the Closing Date an LC
Participant Commitment, and its successors and permitted assigns.
"LC Participant Commitment" means, with respect to each LC
Participant, the amount set forth as such opposite the name of such LC Issuer on
the signature pages hereof.
"Lease" means the Master Lease executed and delivered between
Lessor, as landlord, and Lessee, as tenant, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Lease Default" means the occurrence of an Event of Default
under Section 6.01(k).
"Leased Property" has the meaning set forth in the Lease.
"Lender" or "Lenders" means, individually and collectively, as
the context shall require, each LC Issuer and LC Participant.
"Lending Office" means, as to each Lender, its office located
at its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such
Lender may hereafter designate as its Lending Office by notice to the Lessor and
the Agent.
"Lessee" means Carmike Cinemas, Inc., a Delaware corporation,
and its successors and assigns.
"Lessee Undertaking" means the Lessee Undertaking executed and
delivered by Lessee, substantially in the form of Exhibit H, together with all
amendments, consolidations, modifications, renewals and supplements thereto.
"Lessor" means MOVIEPLEX REALTY LEASING, L.L.C., a New Jersey
limited liability company, and its successors and assigns.
"Letters of Credit" means the commercial letters of credit in
the aggregate face amount of $73,618,958.33 issued by the LC Issuers for the
account of Lessor to the Trustee for the benefit of the Holders pursuant to
Section 2.01, and substantially in the form set forth in Exhibit D, together
with all amendments, consolidations, modifications, renewals and supplements
thereto.
"Letter of Credit Application Agreement" shall mean, with
respect to each LC Issuer and its Letter of Credit, such form of application
therefor (whether in a single or several documents) as such LC Issuer may employ
in the ordinary course of business for its own account, with such modifications
thereto as may by agreed upon by such LC Issuer and Lessor and are not
materially adverse to the interests of the Lenders; provided, however, that in
the event of any conflict between the terms of such Letter of Credit Application
Agreement and this Agreement, the terms of this Agreement shall control.
"Letter of Credit Obligations" shall mean, at any particular
time, the sum of (a) the Reimbursement Obligations at such time, and (b) the
aggregate maximum amount available for drawing under the Letters of Credit at
such time.
"Lien" means, with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest, security
title, preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Agreement, Lessor shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"London Interbank Offered Rate" applicable to any Euro-Dollar
Tender Advance means for the Interest Period of such Euro-Dollar Rate Tender
Advance, the rate per annum determined on the basis of the offered rate for
deposits in Dollars of amounts equal or comparable to the principal amount of
such Euro-Dollar Rate Tender Advance offered for a term comparable to such
Interest Period, which rates appear on the Telerate Page 3750 effective as of
11:00 A.M., London time, 2 Euro-Dollar Business Days prior to the first day of
such Interest Period, provided that if no such offered rates appear on such
page, the "London Interbank Offered Rate" for such Interest Period will be the
arithmetic average (rounded upward, if necessary, to the next higher 1/100th of
1%) of rates quoted by not less than 2 major banks in New York City, selected by
the Agent, at approximately 10:00 A.M., New York City time, 2 Euro-Dollar
Business Days prior to the first day of such Interest Period, for deposits in
Dollars offered by leading European banks for a period comparable to such
Interest Period in an amount comparable to the principal amount of such
Euro-Dollar Rate Tender Advance.
"Margin Stock" means "margin stock" as defined in Regulations
G, T, U or X.
"Master Assignment" has the meaning set forth in the
Indenture.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition or conditions, occurrence or occurrences, whether or not
related, a material adverse change in, or a material adverse effect upon, any of
(a) the financial condition, operations, business, properties or prospects of
Lessor, (b) the rights and remedies of the Agent or the Lenders or the ability
of Lessor to perform its obligations under the Operative Documents to which it
is a party, as applicable, or (c) the legality, validity or enforceability of
any Loan Document.
"Moody's" means Xxxxx'x Investor Service, Inc.
"Mortgage(s)" means, individually and collectively, as the
context requires, each Mortgage executed and delivered by Lessor, substantially
in the form of Exhibit I, together with all amendments, consolidations,
modifications, renewals and supplements thereto.
"Movie Theater(s)" has the meaning set forth in the Lease.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Net Proceeds Collateral Reserve Account" has the meaning set
forth in Section 5.15.
"Obligations" means all present and future indebtedness,
obligations, and liabilities, whether now existing or contemplated or hereafter
arising, of Lessor hereunder to the Agent and the Lenders hereunder, arising
pursuant to, in connection with and/or on account of the provisions of this
Agreement and any of the other Operative Documents, including, without
limitation, the principal of, and interest on, the Letter of Credit Obligations,
any Tender Advance, the Reimbursement Notes, late charges, the Impositions, all
attorney fees and expenses of enforcement and collection against the Lessor
and/or the Collateral, all of the foregoing whether such debts, obligations and
liabilities be direct, indirect, primary, secondary, joint, several, joint and
several, fixed or contingent, and any and all renewals, extensions and
rearrangements of any such debts, obligations and liabilities.
"Officer's Certificate" has the meaning set forth in Section
3.01(f).
"Operating Agreement" means the Amended and Restated Operating
Agreement of the Lessor dated November 20, 1997 (as amended, modified, restated,
substituted, extended and renewed at any time and from time to time with the
consent of the Agent and the Required Lenders.
"Operative Documents" means this Agreement, the Reimbursement
Notes, the Letters of Credit, the Letter of Credit Application Agreements, the
Lease, the Payment Direction Agreement, the Master Assignment, the Fund Account
Security Agreement, the Mortgages, the Assignments of Rents, the Lessee
Undertaking, any other document evidencing, relating to or securing the Letters
of Credit, and any other document or instrument delivered from time to time in
connection with this Agreement, the Reimbursement Notes or the Letters of
Credit, together with all amendments, consolidations, modifications, renewals
and supplements thereto.
"Other Participant" has the meaning set forth in Section
9.08(b).
"Parent" means Helmstar Group, Inc., a Delaware corporation,
or any other Person which at any time owns, directly or indirectly, all of the
issued and outstanding shares of capital stock or membership interests of the
Common Members, and into whose financial statements the financial statements of
Lessor are consolidated.
"Participant" means, individually and collectively, as the
context shall require, any LC Participant and any Other Participant.
"Payment Direction Agreement" has the meaning set forth in the
Lease.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" has the meaning set
forth in Section 2.03(a).
"Permitted Exceptions", for each Individual Property, has the
meaning set forth in the Applicable Mortgage pertaining to such Individual
Property.
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a trust, joint venture, limited liability company,
or any other entity or organization, including, but not limited to, a government
or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is either (i) maintained by a member
of the Controlled Group for employees of any member of the Controlled Group or
(ii) maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding 5 plan years made contributions.
"Pledged Bonds" has the meaning set forth in the Indenture.
"Preferred Member" *[material omitted]
"Preferred Member's Letter Agreement" *[material omitted]
*Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 246-2.
---------------
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
"Preferred Membership Interests" *[material omitted]
"Prime Rate" refers to that interest rate so denominated and
set by Wachovia from time to time as an interest rate basis for borrowings. The
Prime Rate is but one of several interest rate bases used by Wachovia. Wachovia
lends at interest rates above and below the Prime Rate.
"Project Cost" means "Costs" or "Costs of the Projects", as
those terms are defined in the Lease.
"Project Cost Disbursement" means a disbursement by the
Trustee from the Project Fund for Project Cost pursuant to a Disbursement
Request.
"Project Cost Investments" means investments which will be
contributed as equity by the Preferred Member to Lessor to defray a part of
Project Cost.
"Project Fund" has the meaning set forth in the Indenture.
"Properties" means all real property owned, leased or
otherwise used or occupied by Lessor and leased to Lessee under the Lease from
time to time, wherever located.
"Redeemable Preferred Stock" of any Person means any preferred
stock issued by such Person which is at any time prior to the Expiry Date either
(i) mandatorily redeemable (by sinking fund or similar payments or otherwise) or
(ii) redeemable at the option of the holder thereof.
"Regulation G" means Regulation G of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation T" means Regulation T of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Reimbursement Note" means a separate note substantially in
the form of Exhibit L (together with all amendments, consolidations,
modifications, renewals and supplements thereto, to be executed and delivered by
Lessor to each LC Issuer pursuant to Section 3.01(k), to evidence any Tender
Advance of such LC Issuer made pursuant to Section 2.01(e)(iii).
"Reimbursement Obligations" means the reimbursement or
repayment obligations of Lessor to the LC Issuers pursuant to Section 2.01 with
respect to the Letters of Credit, including, without limitation, the obligation
to repay any Tender Advance made by any LC Issuer.
"Reimbursement Obligations Collateral Reserve Account" has the
meaning set forth in clause (iv) of Section 6.01.
---------------
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
"Reimbursement Obligations (Series A Bonds)" means
Reimbursement Obligations relating to draws under the Letters of Credit for
payments on the Series A Bonds (or to any Tender Advance made under such Letters
of Credit).
"Reimbursement Obligations (Series B Bonds)" means
Reimbursement Obligations relating to draws under the Letters of Credit for
payments on the Series B Bonds (or to any Tender Advance made under such Letters
of Credit).
"Remarketing Agent" has the meaning set forth in the
Indenture.
"Remarketing Failure" means the inability of the Remarketing
Agent to remarket the Bonds covered by any Letter of Credit for any reason other
than a Lease Default.
"Rents" has the meaning set forth in the Lease.
"Required Lenders" means at any time Lenders having at least
66 2/3% of the aggregate amount of the Letter of Credit Obligations (but for
such purpose, with respect to the Wachovia Letter of Credit, Wachovia and the LC
Participants shall be treated as ratable holders of the Letter of Credit
Obligations pertaining thereto in accordance with their respective Wachovia
Letter of Credit Shares).
"Reserve Fund" has the meaning set forth in the Lease.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of Lessor's Capital Stock (except dividends payable
solely in shares of its Capital Stock) or (ii) any payment on account of the
purchase, redemption, retirement or acquisition of (a) any shares of Lessor's
Capital Stock (except shares acquired upon the conversion thereof into other
shares of its Capital Stock) or (b) any option, warrant or other right to
acquire shares of Lessor's Capital Stock.
"Revolving Credit Agreement" means the "Credit Agreement", as
that term is defined in the Lease.
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc.
"Series A Bonds" means those Bonds issued pursuant to the
provisions of the Indenture in the aggregate amount of $59,775,000, consisting
of the Series A-1 Bonds in the aggregate amount of $35,125,000, the Series A-2
Bonds in the aggregate amount of $12,325,000 and the Series A-3 Bonds in the
aggregate amount of $12,325,000, in each case as defined as such in the
Indenture.
"Series A Bonds Scheduled Payment Drawing" has the meaning set
forth in the Letter of Credit.
"Series B Bonds" means those Bonds issued pursuant to the
provisions of the Indenture in the aggregate amount of $12,975,000, consisting
of the Series B-1 Bonds in the aggregate amount of $7,625,000, the Series B-2
Bonds in the aggregate amount of $2,675,000 and the Series B-3 Bonds in the
aggregate amount of $2,675,000, in each case as defined as such in the
Indenture.
"Series B Bonds Scheduled Payment Drawing" has the meaning set
forth in the Letter of Credit.
"Subsidiary" means, with respect to any Person, any
corporation or other entity of which securities or other ownership interests
having ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions are at the time directly or
indirectly owned by such Person.
"Supplemental Lease" has the meaning set forth in the Lease.
"Taxes" has the meaning set forth in Section 2.06(c).
"Tender Advance" has the meaning set forth in Section
2.01(e)(iii).
"Tender Drawing" has the meaning set forth in the Letter of
Credit.
"Transferee" has the meaning set forth in Section 9.08(d).
"Trustee" means First Union National Bank, the trustee under
the Indenture for the Holders of the Bonds, and such trustee's successors and
assigns.
"Unfunded Vested Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the present value of all vested
nonforfeitable benefits under such Plan exceeds (ii) the fair market value of
all Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the extent that such excess
represents a potential liability of a member of the Controlled Group to the PBGC
or the Plan under Title IV of ERISA.
"Wachovia" means Wachovia Bank, N.A., a national banking
association, and its successors.
"Wachovia Letter of Credit" means the Letter of Credit issued
by Wachovia.
"Wachovia Letter of Credit Share" means (i) with respect to
Wachovia, the amount of its LC Issuer Commitment, less the aggregate amount of
the LC Participant Commitments, and (ii) with respect to each LC Participant,
the amount of its LC Participant Commitment.
Section 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared,
in accordance with GAAP, applied on a basis consistent (except for changes
concurred in by Lessor's independent public accountants or otherwise required by
a change in GAAP) with the most recent audited consolidated financial statements
of Parent and its consolidated Subsidiaries delivered to the Lenders.
Section 1.03. References. Unless otherwise indicated,
references in this Agreement to "Articles", "Exhibits", "Schedules", "Sections"
and other Subdivisions are references to articles, exhibits, schedules, sections
and other subdivisions hereof.
Section 1.04. Use of Defined Terms. All terms defined in this
Agreement shall have the same defined meanings when used in any of the other
Operative Documents, unless otherwise defined therein or unless the context
shall require otherwise.
Section 1.05. Terminology. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural, and the plural
shall include the singular. Titles of Articles and Sections in this Agreement
are for convenience only, and neither limit nor amplify the provisions of this
Agreement.
ARTICLE II
THE CREDITS
SECTION 2.01. Letter of Credit Facility
(a) Obligation to Issue; Expiry Date. Subject to the terms and
conditions of this Agreement, and in reliance upon the representations and
warranties of Lessor herein set forth, and subject to all terms and conditions
hereof, the LC Issuers shall issue for the account of Lessor, the Letters of
Credit on the Closing Date, with each LC Issuer issuing a Letter of Credit to
cover a different subseries of the Series A Bonds and the Series B Bonds (i.e.
the Agent will issue a Letter of Credit to cover the Series A-1 Bonds and the
Series B-1 Bonds, SunTrust Bank, Atlanta will issue a Letter of Credit to cover
the Series A-2 Bonds and the Series B-2 Bonds and The Bank of New York will
issue a Letter of Credit to cover the Series A-3 Bonds and the Series B-3
Bonds). The Letters of Credit shall expire on the Expiry Date, unless extended
at the request of Lessor, which extension shall be subject to the sole
discretion of the LC Issuers, the Agent and each of the LC Participants, on
terms mutually agreeable to the Agent, the LC Issuers, the LC Participants, and
Lessor. In the event that Lessor requests in writing that the Expiry Date be
extended, Lessor shall so notify the Agent, the LC Issuers and the LC
Participants not more than 180 days prior to the then scheduled Expiry Date. The
Agent, on behalf of the LC Issuers and the LC Participants, shall give notice to
Lessor within 90 days after receipt of such request for extension, and, if such
extension is approved, set forth therein the terms and conditions for such
extension and the new Expiry Date.
(b) Ineligible Lenders.
(i) In the event that any LC Issuer becomes an Ineligible
Lender at any time, then, in such event, such Ineligible Lender shall
notify the Agent, Lessor and Lessee thereof within 20 days of such
occurrence, and such Ineligible Lender shall attempt, and the Lessor
shall be entitled, to provide a confirming bank or a replacement LC
Issuer, in each case acceptable to Lessee and the Agent, which will be
an Eligible Lender.
(ii) In the event that any LC Participant becomes an
Ineligible Lender at any time, then, in such event, such Ineligible
Lender shall notify Wachovia and Lessee thereof within 20 days of such
occurrence, and:
(1) within 90 days after such occurrence, such
Ineligible Lender shall either (x) find a replacement LC
Participant acceptable to Lessee and the Agent, which will be
an Eligible Lender, or (y) provide the Agent with cash
collateral in an aggregate amount (the "Ineligible Lender At
Risk Amount") equal to such Ineligible Lender's Wachovia
Letter of Credit Share; and
(2) if the requirements of clause (1) above have not
been satisfied within such 90 day period, Lessee must, within
5 days after the end of such 90 day period, make a payment to
Lessor in an amount sufficient to enable Lessor to make a
prepayment on the Bonds (which Lessor agrees to do) in the
amount of the Ineligible Lender At Risk Amount and in such
event, (x) the Wachovia Letter of Credit shall be reduced
accordingly, and any such reduction of the Wachovia Letter of
Credit shall be applicable only to the risk participation of
such Ineligible Lender.
(c) Conditions. In addition to being subject to the
satisfaction of the conditions contained in Article III, the obligation of the
LC Issuers to issue the Letters of Credit is subject to the satisfaction in full
of the following conditions:
(i) Lessor shall have delivered to each of the LC Issuers at
such times and in such manner as the LC Issuers may prescribe, its
Letter of Credit Application Agreement and such other documents and
materials as may be required pursuant to the terms thereof all
satisfactory in form and substance to such LC Issuer and the terms of
the proposed Letters of Credit shall be satisfactory in form and
substance to the LC Issuer; and
(ii) as of the date of issuance no order, judgment or decree
of any court, arbitrator or Authority shall purport by its terms to
enjoin or restrain any of the LC Issuers from issuing its Letter of
Credit and no law, rule or regulation applicable to the LC Issuer and
no request or directive (whether or not having the force of law) from
any Authority with jurisdiction over any of the LC Issuers shall
prohibit or request that such LC Issuer refrain from the issuance of
letters of credit generally or the issuance of that Letter of Credit.
(d) Issuance. Upon the satisfaction of all conditions set
forth herein, the LC Issuers shall issue the Letters of Credit. Upon the Closing
Date, each of the LC Issuers shall furnish to the Agent a copy of the executed
Letter of Credit, Letter of Credit Application Agreement and other documentation
relating to the Letter of Credit issued by it pursuant to this Agreement. Upon
the request of any Lender, the Agent shall furnish to such Lender copies of each
Letter of Credit, Letter of Credit Application Agreement and other documentation
relating to Letter of Credit issued pursuant to this Agreement.
(e) Reimbursement Obligations; Duties of the LC Issuers.
Notwithstanding any provisions to the contrary in any Letter of Credit
Application Agreement:
(i) Lessor shall reimburse the Agent, on behalf of
all of the LC Issuers, for the aggregate amount of all drawings under
the Letters of Credit no later than 1 Domestic Business Day after the
payment by the Agent, except as provided in clause (iii) below, and the
Agent shall promptly remit such reimbursement ratably to the LC
Issuers;
(ii) except as provided in clause (iii) below, any
Reimbursement Obligation with respect to the Letters of Credit shall
bear interest from the date of the relevant drawing under the Letters
of Credit until the date of payment in full thereof at a rate per annum
equal to (A) prior to the date that is 3 Domestic Business Days after
the date of the related payment by the LC Issuers, the Base Rate and
(B) thereafter, the Default Rate.
(iii) If any Tender Drawing occurs under any Letter
of Credit as a result of a Remarketing Failure, the Remarketing Agent
shall so notify Lessor, the Agent and the relevant Issuer, and the
resulting Reimbursement Obligations to the LC Issuer upon whom such
Tender Drawing is made shall be deemed satisfied, so long as no Event
of Default is in existence, by an advance by such LC Issuer (a "Tender
Advance") in an amount equal to the amount of such Tender Drawing. The
Tender Advance will be evidenced by the Reimbursement Note held by such
LC Issuer. All outstanding principal under the Reimbursement Note shall
be due and payable on the earlier of (x) 18 months after the making
thereof and (y) the Expiry Date. The Tender Advance will bear interest
at a rate per annum (computed on the basis of the actual number of days
elapsed over a year of 360 days) equal to, at the option of Lessee,
exercised as provided below, either the Base Rate, as a Base Rate
Tender Advance (the "Base Rate Election"), or the Euro-Dollar Rate, as
a Euro-Dollar Rate Tender Advance (the "Euro-Dollar Rate Election").
Upon the Remarketing Failure, the Tender Advance shall be a Base Rate
Tender Advance and shall continue as a Base Rate Tender Advance until
notice in writing to the Agent and the relevant LC Issuer of the
election of the Euro-Dollar Rate Election, which notice shall specify
the first day of the Interest Period therefor, which must be at least 3
Euro-Dollar Business Days after the giving of such notice. At any time
at least 1 Domestic Business Day prior to the last day of any Interest
Period during which the Euro-Dollar Rate Election is in effect, Lessor
may give notice in writing to the Agent and the relevant LC Issuer of
the election of the Base Rate Election, which election shall take
effect on the last day of the current Interest Period. At any time
during which the Base Rate Election is in effect, Lessee (acting on
behalf of Lessor) may give notice in writing to the Agent and the
relevant LC Issuer of the election of the Euro-Dollar Rate Election,
which election shall take effect on the date specified in such notice,
which must be at least 3 Euro-Dollar Business Days after the giving of
such notice. Each of the Base Rate Election and the Euro-Dollar Rate
Election must be elected (x) only as to all principal amounts
outstanding under any Tender Advance, and (y) if more than one LC
Issuer has made a Tender Advance which is still outstanding, as to all
Tender Advances. Notwithstanding the foregoing, if the principal of or
accrued interest on any Tender Advance is not paid when due (including,
without limitation, as a result of acceleration of the maturity of the
related Reimbursement Note pursuant to Section 6.01(ii)), interest on
the unpaid principal amount of such Tender Advance shall accrue at the
Default Rate. Accrued interest on Tender Advances will be payable (i)
on the first Monday of day of each calendar month, as to Base Rate
Tender Advances, and (ii) on the last day of each Interest Period, as
to Euro-Dollar Rate Tender Advances. Upon prior notice (which notice
shall be irrevocable), Lessor may prepay any Tender Advance, without
penalty or premium, but subject to compensation for any funding losses
as a result of any prepayment other than on the last day of an Interest
Period, as to Euro-Dollar Rate Tender Advances, determined in
accordance with Section 8.05. In addition, at any time after 90 days
after the occurrence of a Remarketing Failure (or such earlier date as
may be applicable as provided in Section 2.01(b)(iii) under the
circumstances set forth therein), Lessor shall be entitled to replace
such LC Issuer.
Any action taken or omitted to be taken by the Agent or the LC Issuers in
connection with the Letters of Credit, if taken or omitted in the absence of
willful misconduct or gross negligence, shall not put the Agent or the LC
Issuers under any resulting liability to any other LC Issuer or LC Participant,
or assuming that the Agent and Wachovia have complied with the procedures
specified in this Section and such has not given a notice contemplated hereby
that continues in full force and effect, relieve any LC Participant of its
obligations hereunder to the Agent or Wachovia. In determining whether to pay
under the Letters of Credit, the Agent and the LC Issuers shall have no
obligation relative to the other LC Issuers or to the LC Participants other than
to confirm that any documents required to have been delivered under its Letter
of Credit appear to comply on their face, with the requirements of such Letter
of Credit.
(f) Participations. (i) Immediately upon issuance by Wachovia
of the Wachovia Letter of Credit in accordance with the procedures set forth
herein, each LC Participant shall be deemed to have irrevocably and
unconditionally purchased and received from Wachovia, as the LC Issuer, without
recourse or warranty, an undivided interest and participation, to the extent of
such LC Participant's LC Participant Commitment, in the Wachovia Letter of
Credit (or guaranty pertaining thereto).
(ii) In the event that Wachovia makes any payment under the
Wachovia Letter of Credit for which Lessor shall not have repaid such amount to
the Agent pursuant hereto, Wachovia shall inform the Agent and the Agent shall
promptly notify each LC Participant of such failure, and each LC Participant
shall promptly and unconditionally pay to Wachovia such LC Participant's
Wachovia Letter of Credit Share of the amount of such payment in Dollars and in
same day funds. If the Agent so notifies such LC Participant prior to 10:00 A.M.
(Atlanta, Georgia time) on any Domestic Business Day, such LC Participant shall
make available to Wachovia its Wachovia Letter of Credit Share of the amount of
such payment on such Domestic Business Day in same day funds. If and to the
extent such LC Participant shall not have so made its Wachovia Letter of Credit
Share of the amount of such payment available to Wachovia, such LC Participant
agrees to pay to Wachovia forthwith on demand such amount together with interest
thereon, for each day from the date such payment was first due until the date
such amount is paid to Wachovia at the Base Rate for the first 3 days and
thereafter at the Default Rate. The failure of any LC Participant to make
available to Wachovia its Wachovia Letter of Credit Share of any such payment
shall neither relieve nor increase the obligation of any other LC Participant
hereunder to make available to Wachovia its Wachovia Letter of Credit Share of
any payment on the date such payment is to be made.
(iii) Whenever the Agent receives a payment on account of a
Reimbursement Obligation pertaining to the Wachovia Letter of Credit, including
any interest thereon, as to which the Agent has received any payments from the
LC Participants pursuant hereto, it shall promptly pay to Wachovia its Wachovia
Letter of Credit Share thereof and to each LC Participant which has funded its
participating interest therein, in Dollars and in the kind of funds so received,
an amount equal to such LC Participant's Wachovia Letter of Credit Share
thereof. Each such payment shall be made by the Agent on the Domestic Business
Day on which the funds are paid to such Person, if received prior to 10:00 am.
(Atlanta, Georgia time) on such Domestic Business Day, and otherwise on the next
succeeding Domestic Business Day.
(iv) The obligations of the LC Participants to make payments
to Wachovia with respect to the Wachovia Letter of Credit shall be irrevocable,
not subject to any qualification or exception whatsoever and shall be made in
accordance with, but not subject to, the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(A) any lack of validity or enforceability of this
Agreement or any of the other Operative Documents;
(B) the existence of any claim, set-off, defense or
other right which any LC Participant may have at any time against the
Trustee or any Holder, the Agent, Wachovia, Lessor or any other Person,
whether in connection with this Agreement, the Wachovia Letter of
Credit, the transactions contemplated herein or any unrelated
transactions;
(C) any draft, certificate or any other document
presented under the Wachovia Letter of Credit proves to be forged,
fraudulent, invalid or insufficient (other than on its face) in any
respect or any statement therein being untrue or inaccurate in any
respect, except payment resulting from the gross negligence or willful
misconduct of Wachovia or the Agent;
(D) the surrender or impairment of any security for
the performance or observance of any of the terms of any of the
Operative Documents;
(E) payment by Wachovia under the Wachovia Letter of
Credit proving to be forged, fraudulent, invalid or insufficient (other
than on its face) in any respect or any statement therein being untrue
or inaccurate in any respect, except payment resulting from the gross
negligence or willful misconduct of the Agent or Wachovia;
(F) payment by Wachovia under the Wachovia Letter of
Credit against presentation of any draft or certificate that does not
comply with the terms of such Wachovia Letter of Credit, except payment
resulting from the gross negligence or willful misconduct of the Agent
or Wachovia; or
(G) any other circumstances or happenings whatsoever,
whether or not similar to any of the foregoing, except circumstances or
happenings resulting from the gross negligence or willful misconduct of
the Agent or Wachovia.
(g) Payment of Reimbursement Obligations. Lessor agrees to
pay to the Agent, on behalf of the LC Issuers (and, if applicable, the LC
Participants) the amount of all Reimbursement Obligations, interest and other
amounts payable to the LC Issuer under or in connection with the Letters of
Credit immediately when due, irrespective of:
(i) any lack of validity or enforceability of this
Agreement or any of the other Operative Documents;
(ii) the existence of any claim, set-off, defense or
other right which Lessor may have at any time against the Trustee or
any Holder, the Agent, any Lender or any other Person, whether in
connection with this Agreement, the Letters of Credit, the transactions
contemplated herein or any unrelated transactions;
(iii) any draft, certificate or any other document
presented under any of the Letters of Credit proves to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for
the performance or observance of any of the terms of any of the
Operative Documents;
(v) payment by any of the LC Issuers under any of the
Letters of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(vi) payment by any of the LC Issuers under any of
the Letters of Credit against presentation of any draft or certificate
that does not comply with the terms of such Letter of Credit, except
payment resulting from the gross negligence or willful misconduct of
the Agent or such LC Issuer; or
(vii) any other circumstances or happenings
whatsoever, whether or not similar to any of the foregoing, except
circumstances or happenings resulting from the gross negligence or
willful misconduct of the Agent or any of the LC Issuers.
In the event any payment by or on behalf of Lessor received by the Agent, any LC
Issuer or any LC Participant is thereafter set aside, avoided or recovered in
connection with any receivership, liquidation or bankruptcy proceeding, each LC
Issuer and LC Participant that received such distribution shall, upon demand
contribute such LC Issuer's pro rata share (based on the LC Issuer Commitment of
each LC Issuer other than Wachovia, and the Wachovia Letter of Credit Share of
Wachovia and each LC Participant) of the amount set aside, avoided or recovered
together with interest at the rate required to be paid by the LC Issuer upon the
amount required to be repaid by it.
Nothing in the foregoing shall limit or abridge the right of Lessor to assert
any rights it may have against the Agent, the Lenders, or any other Person in a
separate action or proceeding.
(h) Letter of Credit Fees. (i) Lessor and each LC Participant
shall pay to Wachovia, for its own account, with respect to the issuance of the
Wachovia Letters of Credit, an annual letter of credit facing fee equal to the
product of (x) *[material omitted], times (y) the face amount of the Wachovia
Letter of Credit on the date the fee is required to be paid pursuant hereto,
times (z) the percentage (expressed as a decimal) which the aggregate Wachovia
Letter of Credit Shares held by the LC Participants bears to the aggregate of
all Wachovia Letter of Credit Shares (with Lessor paying such fee to the extent
it accrues with respect to *[material omitted] of each LC Participant's Wachovia
Letter of Credit Share, and each LC Participant paying such fee to the extent it
accrues with respect to its Wachovia Letter of Credit Share in excess of
*[material omitted], payable quarterly in advance on the Closing Date and on the
last Domestic Business Day of each calendar quarter thereafter. No facing fee
shall be payable to any LC Issuer with respect to any Other Participant.
(ii) On the Closing Date, Lessor shall pay to the
Agent, for distribution to each of the LC Issuers and LC Participants,
an upfront letter of credit fee (to be shared ratably, based on the LC
Issuer Commitment of each LC Issuer other than Wachovia, and the
Wachovia Letter of Credit Share of Wachovia and each LC Participant) in
an amount equal to *[material omitted] of the initial face amount of
the Letters of Credit.
(iii) Lessor shall pay to the Agent, for distribution
to each of the LC Issuers and LC Participants an annual letter of
credit fee (to be shared ratably, based on the LC Issuer Commitment of
each LC Issuer other than Wachovia, and the Wachovia Letter of Credit
Share of Wachovia and each LC Participant) with respect to the Series A
Bond (Stated Amount) and the Series B Bond (Stated Amount) (as both
terms are defined in the Letters of Credit), in an amount equal to the
percentage determined by reference to the Debt to Cash Flow Ratio and
the table set forth in Section 2.03(a), payable quarterly in advance on
the Closing Date and on the last day of each calendar quarter.
(iv) Lessor shall pay to each of the LC Issuers,
solely for its own account, the standard charges assessed by such LC
Issuer in connection with the issuance, administration, amendment and
payment or cancellation of the Letter of Credit issued by it, which
charges shall be those typically charged by such LC Issuer to its
customers generally having credit and other characteristics similar to
Lessor, as determined in good faith by such LC Issuer.
(i) Indemnification; Exoneration. (i) In addition to amounts
payable as elsewhere provided in this Section 2.01, Lessor shall protect,
indemnify, pay and save the Agent, each LC Issuer and each LC Participant
harmless from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable attorneys' fees) which
the Agent, any LC Issuer, or any LC Participant may incur or be subject to as a
consequence of the issuance of the Letters of Credit for Lessor's account other
than as a result of its gross negligence or willful misconduct, as determined by
a court of competent jurisdiction.
---------------
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
(ii) As between Lessor, the Agent, the LC Issuers and the LC
Participants, Lessor assumes all risks of the acts and omissions of, or misuse
of the Letters of Credit by the Trustee. In furtherance and not in limitation of
the foregoing, the Agent, the LC Issuers and the LC Participants shall not be
responsible for (A) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with the
application for and issuance of the Letters of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent
or forged, (B) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign the Letters of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason, (C) failure of the
Trustee to comply duly with conditions required in order to draw upon such
Letters of Credit, (D) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher, for errors in interpretation of
technical terms, (E) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under the Letters of Credit or of
the proceeds thereof, (F) the misapplication by the Trustee of the proceeds of
any drawing under such Letters of Credit; and (G) any consequences arising from
causes beyond the control of the Agent, the LC Issuers, and/or the LC
Participant.
(iii) In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken or omitted by
the Agent or the LC Issuers under or in connection with the Letters of Credit or
any related certificates, if taken or omitted in good faith and with reasonable
care, shall not put the Agent, any LC Issuer or any LC Participant under any
resulting liability to Lessor or relieve Lessor of any of its obligations
hereunder to any such Person.
(j) Credit Yield Protection; Capital Adequacy. If the
adoption after the date hereof of any applicable law, statute, rule, regulation,
ordinance, writ, injunction, decree, order, judgment, guideline or decision of
any Authority ("Governmental Rule"), any change after the date hereof in any
interpretation or administration of any applicable Governmental Rule by any
Person charged with its interpretation or administration or compliance by any LC
Issuer, or any LC Participant (or its Lending Office) with any request or
directive (whether or not having the force of law) of any such Person:
(i) shall subject any LC Issuer or any LC Participant (or its
Lending Office) to any tax (other than overall net income taxation),
duty or other charge with respect to any amount drawn on any Letter of
Credit or its obligation to make any payment under any Letter of
Credit, or to maintain any Letter of Credit, or shall change the basis
of taxation (other than overall net income taxation) of payments to any
LC Issuer, or any LC Participant (or its Lending Office) of any amounts
due under this Agreement or any amount drawn on any Letter of Credit;
or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors
of the Federal Reserve System or any Person regulating insurance
activities or insurance companies), special deposit or similar
requirements against assets of, deposits with or for the account of,
credit extended by, letters of credit issued or maintained by, or
collateral subject to a lien in favor of any LC Issuer, or any LC
Participant (or its Lending Office), or shall impose on any LC Issuer,
or any LC Participant (or its Lending Office) any other condition
affecting any amount drawn on any Letter of Credit, or its obligation
to make any payment under any Letter of Credit, as the case may be, or
to maintain any Letter of Credit; then the remaining provisions of this
Section 2.01(j)(ii) shall apply. If the result of any of the foregoing
(without regard to whether any LC Issuer or any LC Participant shall
have sold participations in its respective obligations under this
Agreement) is to increase the cost to or to impose a cost on any LC
Issuer or any LC Participant (or its Lending Office) of making or
maintaining any amounts payable hereunder, of maintaining any Letter of
Credit, or to reduce the amount of any sum received or receivable by
any LC Issuer or any LC Participant (or its Lending Office) under any
Letter of Credit, then:
(A) such LC Issuer or such LC Participant shall
promptly deliver to Lessor a certificate stating the change
which has occurred or the reserve requirements or other
conditions which have been imposed on such LC Issuer or such
LC Participant (or its Lending Office) or the request,
direction or requirement with which it has complied, together
with the date thereof; and
(B) Lessor shall pay to such LC Issuer or such LC
Participant within 15 days of written request (which request
shall state the amount of increased cost, reduction or payment
and the way in which such amount has been calculated), such
amount or amounts as will compensate such LC Issuer or such LC
Participant for the additional cost, reduction of return or
payment incurred by such LC Issuer or such LC Participant;
provided, that no such LC Issuer or LC Participant shall be
entitled to any such compensation for any such additional
cost, reduction of return or payment incurred more than 45
days prior to the date of its written demand for such
compensation. The written request of such LC Issuer or such LC
Participant as to the additional amounts payable pursuant to
this paragraph delivered to Lessor shall be conclusive
evidence of the amount thereof in the absence of manifest
error.
(iii) If any LC Issuer or any LC Participant shall have
determined that after the date hereof the adoption of any applicable
law, rule or regulation regarding capital adequacy, or any change
therein, or any change in the interpretation or administration thereof,
or compliance by such LC Issuer or LC Participant (or its Lending
Office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any Authority, has or would
have the effect of reducing the rate of return on such LC Issuer's or
LC Participant's capital as a consequence of its obligations hereunder
to a level below that which such LC Issuer or LC Participant could have
achieved but for such adoption, change or compliance (taking into
consideration such LC Issuer's or LC Participant's policies with
respect to capital adequacy) by an amount deemed by such LC Issuer or
LC Participant to be material, then from time to time, within 15 days
after demand by such LC Issuer or LC Participant, Lessor shall pay to
such LC Issuer or LC Participant such additional amount or amounts as
will compensate such LC Issuer or LC Participant for such reduction;
provided, that no such LC Issuer or LC Participant shall be entitled to
any such compensation for any such reduction of return incurred more
than 45 days prior to the date of its written demand for such
compensation.
(iv) Each LC Issuer or LC Participant will promptly notify
Lessor, Lessee and the Agent of any event of which it has knowledge,
occurring after the date hereof, which will entitle such LC Issuer or
LC Participant to compensation pursuant to this Section and will
designate a different Lending Office if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in
the judgment of such LC Issuer or LC Participant, be otherwise
disadvantageous to such LC Issuer or LC Participant. A certificate of
any LC Issuer or LC Participant claiming compensation under this
Section and setting forth the additional amount or amounts to be paid
to it hereunder shall be conclusive in the absence of manifest error.
In determining such amount, such LC Issuer or LC Participant may use
any reasonable averaging and attribution methods.
(v) The provisions of this Section 2.01(j) shall be applicable
with respect to any Participant, Assignee or other Transferee, and any
calculations required by such provisions shall be made based upon the
circumstances of such Participant, Assignee or other Transferee.
(k) Replacement of LC Issuer or LC Participant. In the event that any
LC Issuer or LC Participant gives any notice requesting compensation under
Section 2.01(j) then, so long as the condition giving rise to such compensation
exists, Lessee (acting on behalf of Lessor) may designate another bank or
financial institution (such bank or financial institution being herein called a
"Replacement LC Issuer" or "Replacement LC Participant", as the case may be)
which is an Eligible Lender and which is acceptable to the Agent (which
acceptance will not be unreasonably withheld) and which is not an Affiliate of
Lessor or Common Members, to issue a replacement Letter of Credit or assume such
LC Participant Commitment hereunder and upon such replacement or assumption, and
subject to the execution and delivery to the Agent by the Replacement LC Issuer
or LC Participant of an Assignment and Acceptance, and, with respect to a
Replacement LC Issuer, delivery of its replacement Letter of Credit to the
Trustee, the Replacement LC Issuer or Replacement LC Participant shall succeed
to the rights and obligations of such LC Issuer or LC Participant hereunder. In
the event that Lessee (acting on behalf of Lessor) exercises Lessor's rights
under the preceding sentence, the LC Issuer or LC Participant against which such
rights were exercised shall no longer be a party hereto or have any rights or
obligations hereunder; provided that the obligations of the Lessor to such LC
Issuer or LC Participant under Sections 2.01 and 9.03 with respect to events
occurring or obligations arising before or as a result of such replacement shall
survive such exercise.
Section 2.02. Additional Rent Collateral Reserve Account. All
Rent received by the Agent pursuant to the Payment Direction Agreement which is
attributable to Additional Rent as contemplated in the Payment Direction
Agreement shall be deposited in a collateral reserve account (the "Additional
Rent Collateral Reserve Account"), to be held subject to the provisions of this
Section 2.02. All amounts in the Additional Rent Collateral Reserve Account
shall secure the Obligations. If and to the extent that the Agent receives
notice from Lessor, as contemplated below, that a Distribution has been declared
in an amount equal to any part of such Additional Rent, then provided that no
Event of Default is in existence, the Agent shall (and hereby is authorized and
directed by Lessor and the Lenders to do so automatically upon receipt of such
notice and without further authorization from Lessor or the Lenders) apply
amounts held in the Additional Rent Collateral Reserve Account, up to the amount
of such Distribution, to payment to the Preferred Member and (if applicable) to
Lessor, for distribution to the Common Members, of the amount of such
Distribution. Pursuant to the Operating Agreement, if on any date for payment of
any Distribution (a "Distribution Payment Date"), the amount of (x) any
Distribution, together with the aggregate amount of all prior Distributions,
would exceed (y) the amount of the cumulative net income of Lessor during the
period from the Closing Date to such Distribution Payment Date (the amount of
such excess of (x) over (y) being the "Excess Income"), then the amount of such
Distribution so declared by Lessor and notified to the Agent shall exclude the
Excess Income, which shall remain in the Additional Rent Collateral Reserve
Account, subject to the provisions hereof.
Section 2.03. Determination of Letter of Credit Fees and
Portion of Euro-dollar Rate. (a) In determining Letter of Credit Fees payable
pursuant to Section 2.01(h)(iii) and the component of the Euro-Dollar Rate with
respect to Tender Advances contained in clause (ii) of the definition of
Euro-Dollar Rate, such fees and Euro-Dollar Rate component shall be:
(i) for the period commencing on the Closing Date to and
including the first Performance Pricing Determination Date, (A) for Letter of
Credit Fees Series A Bond (Stated Amount), *[material omitted]; and (B) for
Letter of Credit Fees Series B Bond (Stated Amount), *[material omitted]; and
(ii) from and after the first Performance Pricing Determination Date,
the percentage determined on each Performance Pricing Determination Date by
reference to the table set forth below as to the Letter of Credit Fees Series A
Bond (Stated Amount) and the Letter of Credit Fees Series B Bond (Stated
Amount), respectively, and the Debt to Cash Flow Ratio for the quarterly or
annual period ending immediately prior to such Performance Pricing Determination
Date.
Debt to Cash Flow Ratio less than or greater than greater than greater than greater than
equal to 2.0 2.0 to 1.0 but 3.0 to 1.0 but 4.00 to 1.0 4.25 to 1.0
to 1.0 less than or less than or but less than
equal to 3.0 equal to or equal to
to 1.0 4.0 to 1.0 4.25 to 1.0
Letter of Credit Fees
Series A Bond (Stated * * * * *
Amount) [material [material [material [material [material
omitted] omitted] omitted] omitted] omitted]
Letter of Credit Fees
Series B Bond (Stated * * * * *
Amount) [material [material [material [material [material
omitted] omitted] omitted] omitted] omitted]
In making such determinations, Lessee, the Agent and the Lenders shall
refer to Lessee's most recent consolidated quarterly or annual (as the case may
be) financial statements delivered pursuant to Section 2.1(s)(i) and (ii) of the
Lease. If such financial statements require a change in Letter of Credit fees
pursuant to Section 2.01(h)(iii) and the component of the Euro-Dollar Rate with
----------
*Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
respect to Tender Advances contained in clause (ii) of the definition of
Euro-Dollar Rate, Lessor shall deliver to the Agent, along with such financial
statements, respective notices to that effect, which notices shall set forth in
reasonable detail the calculations supporting the required change. The
"Performance Pricing Determination Date" is the date which is the last date on
which such financial statements are permitted to be delivered pursuant to
Section 2.1(s) of the Lease. Any such required change shall become effective on
such Performance Pricing Determination Date, and shall be in effect until the
next Performance Pricing Determination Date, provided that no Letter of Credit
fees or component of the Euro-Dollar Rate shall be decreased pursuant to Section
2.01(h)(iii)or Section 2.01(e)(iii) if a Default is in existence on the
Performance Pricing Determination Date.
(b) The Agent shall make the determinations pursuant to
Section 2.03(a) and shall give prompt notice to Lessor, Lessee and the Lenders
by telecopier of each such determination, and its determination shall be
conclusive in the absence of manifest error.
Section 2.04. Fees. In addition to the fees payable pursuant
to Section 2.01, (i) Lessor shall pay to the Agent, for the account and sole
benefit of the Agent, such Fees and other amounts and at such times as set forth
in the Agent's Letter Agreement, and (ii) RealVest shall pay to the Preferred
Member the fees payable to it on the Closing Date pursuant to the Preferred
Member's Letter Agreement.
Section 2.05. Optional Prepayments. (a) In addition to
payments from required principal payments on Pledged Bonds, Lessor may, upon at
least 1 Domestic Business Days' notice, prepay any Base Rate Tender Advance in
whole at any time, or from time to time in part in amounts aggregating at least
$100,000 (or any lesser amount equal to the outstanding balance of the Tender
Advances), by paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such optional prepayment shall
be applied to prepay ratably the Base Rate Tender Advances of the several LC
Issuers which have Tender Advances outstanding.
(b) In addition to payments from required principal payments
on Pledged Bonds, and in any event subject to any payments required pursuant to
the terms of Article VIII for such Euro-Dollar Rate Tender Advance, upon 3
Domestic Business Day's prior written notice, Lessor may prepay in amounts
aggregating at least $1,000,000 (or any lesser amount equal to the outstanding
balance of the Tender Advances) all or any portion of the principal amount of
any Euro-Dollar Rate Tender Advance prior to the maturity thereof, by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment, together with any amounts required to be paid pursuant to
Article VIII. Each such optional prepayment shall be applied to prepay ratably
the Base Rate Tender Advances of the several LC Issuers which have Tender
Advances outstanding.
(c) Upon receipt of a notice of prepayment pursuant to this
Section 2.05, the Agent shall promptly notify each Lender of the contents
thereof and of such Lender's ratable share of such prepayment and such notice,
once received by the Agent, shall not thereafter be revocable by Lessor.
Section 2.06. General Provisions as to Payments. (a) Lessor
shall make each payment of principal of, and interest on, the Reimbursement
Obligations and of fees hereunder, not later than 11:00 A.M. (Atlanta, Georgia
time) on the date when due, in Federal or other funds immediately available in
Atlanta, Georgia, to the Agent at its address referred to in Section 9.01. The
Agent will promptly distribute to each Lender its ratable share of each such
payment received by the Agent for the account of the Lenders.
(b) Whenever any payment of principal of, or interest on, the
Reimbursement Obligations (other than on a Euro-Dollar Rate Tender Advance) or
of fees hereunder shall be due on a day which is not a Domestic Business Day,
the date for payment thereof shall be extended to the next succeeding Domestic
Business Day. Whenever any payment of principal of or interest on, a Euro-Dollar
Rate Tender Advance shall be due on a day which is not a Euro-Dollar Business
Day, the date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case the date for payment thereof shall be the next
preceding Euro-Dollar Business Day.
(c) All payments of principal, interest and fees and all other
amounts to be made by Lessor pursuant to this Agreement with respect to any
Reimbursement Obligations, or fee relating thereto shall be paid without
deduction for, and free from, any tax, imposts, levies, duties, deductions, or
withholdings of any nature now or at anytime hereafter imposed by any
governmental authority or by any taxing authority thereof or therein excluding
in the case of each LC Issuer, taxes imposed on or measured by its net income,
and franchise taxes imposed on it, by the jurisdiction under the laws of which
such LC Issuer is organized or any political subdivision thereof and, in the
case of each LC Issuer, taxes imposed on its income, and franchise taxes imposed
on it, by the jurisdiction of such LC Issuer's applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, imposts, levies,
duties, deductions or withholdings of any nature being "Taxes"). In the event
that Lessor is required by applicable law to make any such withholding or
deduction of Taxes with respect to any Tender Advance or fee or other amount,
Lessor shall pay such deduction or withholding to the applicable taxing
authority, shall promptly furnish to any LC Issuer in respect of which such
deduction or withholding is made all receipts and other documents evidencing
such payment and shall pay to such LC Issuer additional amounts as may be
necessary in order that the amount received by such LC Issuer after the required
withholding or other payment shall equal the amount such LC Issuer would have
received had no such withholding or other payment been made.
Each Lender which is not organized under the laws of the
United States or any state thereof agrees to deliver to Agent, Lessor and
Lessee, on the Closing Date (or on any later date on which such Lender first
becomes a Lender hereunder) all appropriate forms, certificate or other
appropriate documents necessary to establish that it is entitled to receive
payments of principal and interest under this Agreement and the Reimbursement
Notes without deduction and free from withholding of any Taxes.
In the event any Lender receives a refund of any Taxes paid by
or on behalf of Lessor pursuant to this Section 2.06(c), it will pay to Lessor
(or pursuant to its direction) the amount of such refund promptly upon receipt
thereof; provided that if at any time thereafter it is required to return such
refund, Lessor shall promptly repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of
Lessor hereunder, the agreements and obligations of Lessor and the LC Issuers
contained in this Section 2.06(c) shall be applicable with respect to any
Participant, Assignee or other Transferee, and any calculations required by such
provisions (i) shall be made based upon the circumstances of such Participant,
Assignee or other Transferee, and (ii) constitute a continuing agreement and
shall survive the termination of this Agreement and the payment in full or
cancellation of the Reimbursement Notes.
Section 2.07. Computation of Interest and Impositions.
Interest on Base Rate Tender Advances and other Reimbursement Obligations (other
than Euro-Dollar Rate Tender Advances) shall be computed on the basis of a year
of 360 days and paid for the actual number of days elapsed (including the first
day but excluding the last day). Interest on Euro-Dollar Rate Tender Advances
shall be computed on the basis of a year of 360 days and paid for the actual
number of days elapsed, calculated as to each Interest Period from and including
the first day thereof to but excluding the last day thereof. Commitment fees,
Letter of Credit Fees and any other fees and Impositions payable under this
Article II shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
ARTICLE III
CONDITIONS TO BORROWINGS AND ISSUANCE OF THE LETTERS OF CREDIT
Section 3.01. Conditions to Issuance of the Letters of Credit.
The obligation of each LC Issuer to issue its Letter of Credit is subject to the
satisfaction of the conditions set forth in Sections 3.02 (if applicable) and
receipt by the Agent of the following (as to the documents described in
paragraphs (a),(c), (d) and (e) below, in sufficient number of counterparts for
delivery of a counterpart to each Lender and retention of one counterpart by the
Agent):
(a) from each of the parties hereto of either (i) a duly
executed counterpart of this Agreement signed by such party or (ii) a
facsimile transmission of such executed counterpart, with the original
to be sent to the Agent by overnight courier);
(b) a duly executed Reimbursement Note for the account of each
LC Issuer complying with the provisions of Section 3.01(e)(iii);
(c) opinion letters (together with any opinions of local
counsel relied on therein) of Xxxxx & Xxxxxx, counsel for Lessor, dated
as of the Closing Date, (i) substantially in the form of Exhibit A-1
relating to corporate matters and enforceability and covering such
additional matters relating to the transactions contemplated hereby as
the Agent or any Lender may reasonably request, and (ii) substantially
in the form of Exhibit A-2 to the effect that, in the event either of
the Common Members, or their respective successors becomes insolvent,
neither Lessor nor its assets and liabilities would be substantively
consolidated with such insolvent Common Member or successor;
(d) an opinion of Xxxxx, Day, Xxxxxx & Xxxxx, special counsel
for the Agent, dated as of the Closing Date, substantially in the form
of Exhibit B and covering such additional matters relating to the
transactions contemplated hereby as the Agent may reasonably request;
(e) a certificate (the "Closing Certificate") substantially in
the form of Exhibit E), dated as of the Closing Date, signed by a
principal financial officer of Lessor to the effect that (i) no Default
has occurred and is continuing on the date of issuance of the Letters
of Credit, and (ii) the representations and warranties of Lessor
contained in Article IV are true on and as of the date of issuance of
the Letters of Credit hereunder;
(f) all documents which the Agent or any Lender may reasonably
request relating to the existence of Lessor, the corporate authority
for and the validity of this Agreement and the Reimbursement Notes, and
any other matters relevant hereto, all in form and substance
satisfactory to the Agent, including, without limitation, a certificate
of Lessor substantially in the form of Exhibit F (the "Officer's
Certificate"), signed by the Secretary or an Assistant Secretary of
Lessor, certifying as to the names, true signatures and incumbency of
the officer or officers of Lessor authorized to execute and deliver the
Operative Documents, and certified copies of the following items,
respectively: (i) Lessor's Certificate of Formation, (ii) the Operating
Agreement, (iii) a certificate of the Secretary of State of the State
of New Jersey as to its good standing, and (iv) the action taken by the
managers of Lessor authorizing Lessor's execution, delivery and
performance of this Agreement, the Reimbursement Notes and the other
Operative Documents to which Lessor is a party;
(g) receipt in immediately available funds all fees payable on
the Closing Date pursuant to Sections 2.01 and 2.04;
(h) all agreements, instruments, and documents evidencing,
securing or relating to the Bonds, the Indenture, the Lease, the
Preferred Membership Interests, the Common Membership Interests, and
the terms and conditions of the Operating Agreement will be in form and
substance satisfactory to the Agent and the Lenders;
(i) from Lessor a fully executed counterpart of the Lease,
which Lease shall be satisfactory to the Agent and the Lenders in all
respects, attached as Exhibit G; and
(j) receipt by the Agent of each of the other Operative
Documents, duly executed by the parties thereto.
Section 3.02. Conditions to Certain Events. Lessor agrees that
each of the following conditions shall be satisfied at the relevant times
required for satisfaction thereof pursuant to the following provisions:
(a) for the first Project Cost Disbursement for any Individual
Property, the execution and delivery of a Supplemental Lease for the
Individual Property relating thereto, a Mortgage and Assignment of
Rents relating to such Project, and other documents to be satisfactory
in all respects to the Agent (including any ground lease), and with the
liens, security titles and security interests in favor of the Agent
(for the benefit of itself and the Lenders) to be a first and only lien
or security title and security interest in and to each Individual
Property, subject to no encumbrances or exceptions other than Permitted
Exceptions;
(b) On or before the earlier to occur of (i) the date of the
acquisition of the land for any Individual Property (the "Land
Acquisition Date"), or (ii) the date of a Project Cost Disbursement for
the purchase price therefor, the Agent (for the benefit of the Lenders)
shall be provided with a mortgage title insurance policy (or binding
commitment therefor), insuring the lien or security title of the Agent
(for the benefit of itself, the LC Issuer and the Lenders) as a first
and only lien or security title to each Individual Property, subject to
no encumbrances or exceptions other than any which are approved by the
Agent in its sole discretion.
(c) Lessee shall have provided Lessor, the Agent and the
Lenders with the following, for each Individual Property: (A)(a) On or
before the Land Acquisition Date, a current ALTA-ACSM boundary survey
of the Individual Property site (showing any existing improvements from
a registered surveyor), and (b) on the Applicable Completion Date, an
as-built survey by the original surveyor as of the Applicable
Completion Date; and (B) on or prior to the date of commencement of
construction on the Individual Property (the "Construction Commencement
Date"), a complete set of architectural and engineering plans and
design specifications for the construction, installation and completion
of the Individual Property; (C) On or prior to the Construction
Commencement Date, an appraisal from an independent MAI appraiser,
engaged by the Agent at the expense of Lessee, setting forth the
estimated fair market value of the Individual Property on the
Applicable Completion Date (on an "as completed" basis in accordance
with the Proposed Plan), which shall be at least 90% of the anticipated
total Project Cost for such Individual Property, which appraisal will
satisfy all applicable FIRREA and other bank regulatory requirements;
all of the foregoing to be reasonably satisfactory to each of the
Agent, in its sole discretion.
(d) Lessor, the Agent and the Lenders will be provided for
each Individual Property, on or before the Land Acquisition Date, a
current Phase I environmental report satisfying the minimum standards
set forth in ASTME 1527-94 (and, if recommended in or indicated by the
Phase I environmental report, a Phase II, environmental soil test or
other environmental report or reports).
(e) on or before the Land Acquisition Date for each Individual
Property, all filings or recordings of Operative Documents considered
necessary or desirable by the Agent with respect to such Individual
Property shall be completed and all taxes and fees in connection
therewith paid by Lessee or Lessor;
(j) Lessor, the Agent and the Lenders will be provided for
each Individual Property, on or before the Land Acquisition Date for
each Individual Property, favorable opinions of counsel to Lessor and
(if required by the Lease) Lessee covering such matters incident to the
transactions as the Agent may require, together with such certified
resolutions and incumbency certificates, and such other certificates
and documents as the Agent or the Lenders may reasonably request; and
(k) As of the date of each Project Cost Disbursement, and
after giving effect thereto, the aggregate amount of Project Cost
Investments shall be not less than 3% of all Project Costs incurred for
any portion of which Project Cost Disbursements have been requested as
of such date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Lessor hereby represents and warrants that:
Section 4.01. Existence and Power. Lessor is a limited
liability company duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization and existence, and Lessor is
duly qualified to transact business in every jurisdiction where, by the nature
of its business, such qualification is necessary, and has all limited liability
powers and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
Section 4.02. Limited Liability Company and Governmental
Authorization; No Contravention. The execution, delivery and performance by
Lessor of this Agreement, the Reimbursement Notes and the other Operative
Documents (i) are within its limited liability company powers, (ii) have been
duly authorized by all respective necessary limited liability company action,
(iii) require no action by or in respect of or filing with, any governmental
body, agency or official, (iv) do not contravene, or constitute a default under,
any provision of applicable law or regulation or of its Certificate of Formation
or the Operating Agreement or of any agreement, judgment, injunction, order,
decree or other instrument binding upon it, and (v) do not result in the
creation or imposition of any Lien on any of its assets, except in favor the
Agent.
Section 4.03. Binding Effect. This Agreement constitutes a
valid and binding agreement of Lessor, enforceable in accordance with its terms,
and the Reimbursement Notes and the other Operative Documents, when executed and
delivered in accordance with this Agreement, will constitute valid and binding
obligations of Lessor, enforceable in accordance with their respective terms,
provided that the enforceability hereof and thereof is subject in each case to
general principles of equity and to bankruptcy, insolvency and similar laws
affecting the enforcement of creditors' rights generally.
Section 4.04. Financial Information. (a) The consolidated
balance sheet of Parent as of December 31, 1996 and the related consolidated
statements of income and cash, shareholders' equity and cash flows for such
Fiscal Year, setting forth (in comparative form as to the statements of income
and cash flows) the figures for the previous fiscal year, the Form 10Q of the
Parent and the separate consolidating statements for the Lessor as of June 30,
1997, copies of which have been delivered to the Agent and each of the Lenders,
fairly present in all material respects, in accordance with GAAP, the respective
consolidated financial position of Parent and Lessor, as applicable, as of such
dates and their consolidated results of operations and (if included) cash flows
for such periods stated.
(b) Since June 30, 1997, there has been no event, act,
condition or occurrence having a Material Adverse Effect.
Section 4.05. No LItigation. (a) There is no action, suit or
proceeding pending, or to the knowledge of Lessor threatened, against Lessor
before any court or arbitrator or any governmental body, agency or official
which could have a Material Adverse Effect or which in any manner draws into
question the validity of or could impair the ability of Lessor to perform its
obligations under, this Agreement, the Reimbursement Notes or any of the other
Operative Documents.
Ssection 4.06. Compliance with ERISA. (a) Lessor and each
member of such Lessor's Controlled Group (if any), has fulfilled its obligations
under the minimum funding standards of ERISA and the Code with respect to each
Plan and is in compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and has not incurred any liability to the PBGC
or a Plan under Title IV of ERISA.
(b) Neither Lessor nor any member of Lessor's Controlled Group
(if any) is or ever has been obligated to contribute to any Multiemployer Plan.
Section 4.07. Compliance wiht Laws; Payment of Taxes. Lessor
is in compliance with all applicable laws, regulations and similar requirements
of governmental authorities, except where such compliance is being contested in
good faith through appropriate proceedings, and except where non-compliance has
not had and would not be reasonably expected to cause a Material Adverse Effect.
There has been filed on behalf of Lessor all Federal, state and local income,
excise, property and other tax returns which are required to be filed by it and
all taxes due pursuant to such returns or pursuant to any assessment received by
or on behalf of Lessor have been paid, except where non-compliance has not had
and would reasonably be expected to cause a Material Adverse Effect. The
charges, accruals and reserves on the books of Lessor in respect of taxes or
other governmental charges are, respectively, in the opinion of Lessor,
adequate.
Section 4.08. Subsidiaries. Lessor has no Subsidiaries.
Section 4.09. Investment Company Act. Lessor is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
Section 4.10. Public Utility Holding Company Act. Lessor is
not a "holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act of
1935, as amended.
Section 4.11. Ownership of Property. Lessor has title to its
properties sufficient for the conduct of its business.
Section 4.12. No Default. Lessor is not in default under or
with respect to any agreement, instrument or undertaking to which it is a party
or by which it or any of its property is bound which could have or cause a
Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
Section 4.13. Full Disclosure. All information heretofore
furnished by Lessor to the Agent or any Lender for purposes of or in connection
with this Agreement or any transaction contemplated hereby is, and all such
information hereafter furnished by Lessor to the Agent or any Lender will be,
true, accurate and complete in every material respect or based on reasonable
estimates on the date as of which such information is stated or certified.
Lessor has disclosed to the Lenders in writing any and all facts which could
have or cause a Material Adverse Effect.
Secton 4.14. Environmental Matters. (a) Lessor is not subject
to any Environmental Liability which could have or cause a Material Adverse
Effect and Lessor has not been designated as a potentially responsible party
under CERCLA or under any state statute similar to CERCLA. None of the
Properties has been identified on any current or proposed (i) National
Priorities List under 40 C.F.R. ss. 300, (ii) CERCLIS list or (iii) any list
arising from a state statute similar to CERCLA.
(b) No Hazardous Materials have been or are being used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed or otherwise handled at, or shipped or transported to or
from the Properties or are otherwise present at, on, in or under the Properties,
or, to the best of the knowledge of Lessor, at or from any adjacent site or
facility, except for Hazardous Materials, such as cleaning solvents, pesticides
and other materials used, produced, manufactured, processed, treated, recycled,
generated, stored, disposed of, managed, or otherwise handled in minimal amounts
in the ordinary course of business in compliance with all applicable
Environmental Requirements.
(c) Lessor has procured all Environmental Authorizations
necessary for the conduct of its business, and is in compliance with all
Environmental Requirements in connection with the operation of the Properties
and Lessor's business.
Section 4.15. Membership Interests. The Common Membership
Interests, Preferred Membership Interests and all debentures, bonds, notes and
all other securities of Lessor presently issued and outstanding are validly and
properly issued in accordance with all applicable laws, including, but not
limited to, the "Blue Sky" laws of all applicable states and the federal
securities laws. Based solely upon the representations of the Common Members and
the Preferred Members contained in the Operating Agreement, the issued Common
Membership Interests and Preferred Membership Interests are owned by the Common
Members and the Preferred Member, respectively, free and clear of any Lien or
adverse claim.
Section 4.16. Margin Stock. No Letter of Credit will be used
+to purchase or carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock, or be used for any purpose
which violates, or which is inconsistent with, the provisions of Regulation G,T,
U or X.
Section 4.17. Insolvency. After giving effect to the execution
and delivery of the Operative Documents and the issuance of the Letters of
Credit: (i) Lessor will not (x) be "insolvent," within the meaning of such term
as used in O.C.G.A. ss. 18-2-22 or as defined in ss. 101 of the "Bankruptcy
Code", or Section 2 of either the "UFTA" or the "UFCA", or as defined or used in
any "Other Applicable Law" (as those terms are defined below), or (y) be unable
to pay its debts generally as such debts become due within the meaning of
Section 548 of the Bankruptcy Code, Section 4 of the UFTA or Section 6 of the
UFCA, or (z) have an unreasonably small capital to engage in any business or
transaction, whether current or contemplated, within the meaning of Section 548
of the Bankruptcy Code, Section 4 of the UFTA or Section 5 of the UFCA; and (ii)
the obligations of Lessor under the Operative Documents and with respect to the
Letters of Credit will not be rendered avoidable under any Other Applicable Law.
For purposes of this Section 4.17, "Bankruptcy Code" means Title 11 of the
United States Code, "UFTA" means the Uniform Fraudulent Transfer Act, "UFCA"
means the Uniform Fraudulent Conveyance Act, and "Other Applicable Law" means
any other applicable law pertaining to fraudulent transfers or acts voidable by
creditors, in each case as such law may be amended from time to time.
Section 4.18. Insurance. Lessor has (or Lessor has caused
Lessee to obtain), with financially sound and reputable insurance companies,
insurance in at least such amounts and against at least such risks (including on
all its property, and public liability and worker's compensation) as are usually
insured against in the same general area by companies of established repute
engaged in the same or similar business.
ARTICLE V
COVENANTS
Lessor agrees that, so long as any amount payable to any Agent
or any Lender hereunder or under any Reimbursement Note remains unpaid or the
Letters of Credit remains in effect:
Section 5.01. Information. Lessor will deliver (and, with
respect to clauses (a), (b), and (d) through and including (h), will cause
Lessee to deliver such items pursuant to the Lease), to each of the Lenders:
(a) as soon as available to the public and in any event within
95 days after the end of each Fiscal Year, (x) for Lessor, the
consolidated balance sheet of Parent as of the end of such Fiscal Year
and the related consolidated statements of income, shareholders' equity
and cash flows for such Fiscal Year, setting forth (in comparative form
as to the statements of income) the figures for the previous fiscal
year, all reported on by Xxxxxxx X. Xxxxxx Company, LLP or other
independent public accountants of nationally recognized standing,
together with separate consolidating statements for the Lessor,
certified as to fairness of presentation, GAAP and consistency by the
chief financial officer or the chief accounting officer of Parent, and
(y) for the Lessee, its consolidated balance sheet as of the end of
such Fiscal Year and the related consolidated statements of income,
shareholders' equity and (if included) cash flows for such Fiscal Year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by Ernst & Young LLP (as to
Lessee) or other independent public accountants of nationally
recognized standing, with such report to be free of exceptions and
qualifications not acceptable to the Required Lenders;
(b) as soon as available to the public and in any event within
50 days after the end of each of the first 3 Fiscal Quarters of each
Fiscal Year, its respective consolidated balance sheet as of the end of
such Fiscal Quarter and the related statement of income for such Fiscal
Quarter and for the portion of the Fiscal Year ended at the end of such
Fiscal Quarter, setting forth (in comparative form as to the statements
of income of the Lessor and in each case in comparative form as to the
Lessee) the figures for the corresponding Fiscal Quarter and the
corresponding portion of the previous Fiscal Year, all certified
(subject to normal year-end adjustments) as to fairness of
presentation, GAAP and consistency by its respective chief financial
officer or the chief accounting officer (except for normal year end
adjustments and notes to financial statements, which will be omitted);
(c) upon receipt thereof, any notice, report or other delivery
required to be delivered by Lessee pursuant to the terms of the Lease;
(d) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) above, (i) the
Compliance Certificate of Lessee delivered pursuant to Section
2.1(s)(iii) of the Lease setting forth in reasonable detail the
calculations required to establish whether Lessee was in compliance
with the financial covenants contained in Section 2.1(u) through (x),
inclusive, of the Lease on the date of such financial statements, and
stating whether any Default exists under the Lease on the date of such
certificate and, if any Default then exists under the Lease, setting
forth the details thereof and the action which Lessee is taking or
proposes to take with respect thereto and (ii) a certificate of Lessor
stating whether any Default exists hereunder on the date of such
certificate and, if any Default then exists hereunder, setting forth
the details thereof and the action which Lessor is taking or proposes
to take with respect thereto;
(e) within 5 Domestic Business Days after Lessor becomes aware
of the occurrence of any Default, a certificate of its respective chief
financial officer or the chief accounting officer setting forth the
details thereof and the action which it is taking or proposes to take
with respect thereto, or any similar such certificate of Lessee
furnished pursuant to the Lease;
(f) promptly upon the mailing thereof to their respective
members or shareholders generally, copies of all financial statements,
reports and proxy statements so mailed;
(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and annual,
quarterly or monthly reports which Lessor, Parent or Lessee shall have
filed with the Securities and Exchange Commission;
(h) if and when any member of any Controlled Group (i) gives
or is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA, a copy of such notice; or (iii) receives
notice from the PBGC under Title IV of ERISA of an intent to terminate
or appoint a trustee to administer any Plan, a copy of such notice;
(i) upon receipt thereof, any notice, report or other delivery
required to be delivered by Lessor pursuant to the terms of the
Indenture; and
(j) from time to time such additional information regarding
the financial position or business of Lessor as the Agent, at the
request of any Lender, may reasonably request.
Section 5.02. Inspection of Property, Books and Records.
Lessor will, and will cause (pursuant to the Lease) Lessee to (i) keep proper
books of record and account in which full, true and correct entries in
conformity with GAAP shall be made of all dealings and transactions in relation
to its respective business and activities; and (ii) permit representatives of
any Lender at such Lender's expense prior to the occurrence of a Default and at
the Lessor's expense after the occurrence of a Default to visit and inspect any
of its properties, to examine and make abstracts from any of its books and
records and to discuss its affairs, finances and accounts with its officers,
employees and independent public accountants. Lessor agrees to, and will cause
(pursuant to the Lease) Lessee to, cooperate and assist in such respective
visits and inspections, in each case at such reasonable times and as often as
may reasonably be desired.
Section 5.03. Maintenance of Existence. Lessor shall maintain
its existence and carry on its business in substantially the same manner and in
substantially the same fields as such business is now carried on and maintained.
Section 5.04. Dissolution. Lessor shall not suffer or permit
its dissolution or liquidation either in whole or in part or redeem or retire
any of its own membership interests except through corporate reorganization to
the extent permitted by Section 5.08.
Section 5.05. Certain Amendments Requiring Consent. Without
the prior written consent of the Agent and the Required Lenders, Lessor shall
not: (i) amend, modify or terminate the Indenture, the Agency and Development
Agreement, the Lease or the Payment Direction Agreement; or (ii) take any action
under the Agency and Development Agreement or the Lease; provided, however, that
Lessor shall not amend or modify the definitions of Basic Rent and Supplemental
Rent or the provisions of Sections 3.3, 3.5 (except as expressly contemplated in
the Lease with respect to any prepayment of Rent or purchase of any of the
Leased Properties) or 3.8 of the Lease without the prior written consent of the
Agent and all of the Lenders.
Section 5.06. Use of Proceeds. The proceeds of the Project
Cost Disbursements for Individual Properties shall be used by Lessor solely for
the acquisition, assembly and construction of the Individual Properties by
Lessor and Lessee, as development agent for Lessor. In no event shall the
proceeds of the Project Cost Disbursements be used in any manner which would
constitute the use of such proceeds directly or indirectly, whether immediate,
incidental or ultimate, of purchasing or carrying any Margin Stock, or for any
purpose in violation of any applicable law or regulation.
Section 5.07. Compliance with Laws; Payment of Taxes. Lessor
will, and will cause each member of its Controlled Group to, comply with
applicable laws (including but not limited to ERISA), regulations and similar
requirements of governmental authorities (including but not limited to PBGC),
except where the necessity of such compliance is being contested in good faith
through appropriate proceedings diligently pursued and except where
non-compliance has not had and would reasonably be expected to cause a Material
Adverse Effect. Lessor will pay promptly when due all taxes, assessments,
governmental charges, claims for labor, supplies, rent and other obligations
which, if unpaid, might become a lien against its property, except liabilities
being contested in good faith and against which, if requested by the Agent,
Lessor will set up reserves in accordance with GAAP and except where
non-compliance has not had and would reasonably be expected to cause a Material
Adverse Effect and would not cause a lien against any of the Collateral.
Section 5.08. Consolidations, Mergers and Sales of Assets.
Lessor will not consolidate or merge with or into, or sell, lease or otherwise
transfer all or any substantial part of its assets to, any other Person, or
discontinue or eliminate any business line or segment.
Section 5.09. Maintenance of Property. Lessor shall maintain
all of its properties and assets in good condition, repair and working order,
ordinary wear and tear excepted, and in accordance with the provisions of the
Lease.
Section 5.10. Restricted Payments. Lessor will not declare or
make any Restricted Payment during any Fiscal Year, except that Distributions
may be made from amounts in the Additional Rent Collateral Reserve Account
pursuant to Section 2.02, so long as no Event of Default exists.
Section 5.11. Loans or Advances. Lessor shall not make loans
or advances to any Person, except deposits required by government agencies or
public utilities or required in order to comply with any applicable provisions
of any of the "Transaction Documents" (as defined in the Lease).
Section 5.12. Investments. Lessor shall not make Investments
in any Person except as permitted by Section 5.11 and except Investments in (i)
direct obligations of the United States Government maturing within one year,
(ii) certificates of deposit issued by a commercial bank whose credit is
satisfactory to the Agent, (iii) commercial paper rated A-1 or the equivalent
thereof by S&P or P-1 or the equivalent thereof by Xxxxx'x and in either case
maturing within 6 months after the date of acquisition, (iv) tender bonds the
payment of the principal of and interest on which is fully supported by a letter
of credit issued by a United States bank whose long-term certificates of deposit
are rated at least AA or the equivalent thereof by S&P and Aa or the equivalent
thereof by Xxxxx'x; and/or (v) Investments permitted by the terms of Section
5.05 of the Indenture; provided, however, immediately after giving effect to the
making of any Investment, no Default shall have occurred and be continuing.
Section 5.13. Additional Debt. Lessor shall not incur any
Debt, other than pursuant to this Agreement.
Section 5.14. No Other Businesses. Lessor shall engage in no
other business or activities, other than the ownership and leasing of the
Individual Properties, as contemplated herein and in the Operative Documents.
Section 5.15. Retention and Disposition of Certain Proceeds.
In the event the Agent receives any excess "Net Proceeds" (as defined in the
Lease) pursuant to Section 19.1(b), surplus proceeds pursuant to Section 19.2(b)
of the Lease, or any excess condemnation award pursuant to Section 19.3(c) of
the Lease, such amounts shall be held by the Agent as a collateral reserve (the
"Net Proceeds Collateral Reserve Account") to secure payment of the Obligations;
provided, that if all Letters of Credit have been terminated and all Obligations
have been paid in full, then the Agent shall disburse any remaining amount in
the Net Proceeds Collateral Reserve Account in accordance with the applicable
provisions of such Sections of the Lease.
ARTICLE VI
DEFAULTS
Secton 6.01 Events of Default. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) Lessor shall fail to pay when due any Letter of Credit
Obligations or principal amount of any Reimbursement Note, or shall
fail to pay any interest on any Reimbursement Note within 5 Domestic
Business Days after such interest shall become due, or shall fail to
pay any fee or any other Obligations within 5 Domestic Business Days
after such fee or other amount becomes due; or
(b) Lessor shall fail to observe or perform any covenant or
agreement contained in:
(1) any of Sections 5.03, 5.04, 5.05, 5.08, or 5.10,
5.11, 5.12 (other than arising out of temporary Investments of
cash in cash equivalents which are not otherwise permitted by
Section 5.12, which shall be subject to clause (2) of this
Section 6.01(b)), 5.13 or 5.14 of this Agreement; or
(2) any other provision of this Agreement for 30 days
after the earlier of (i) the first day on which Lessor has
knowledge of such failure or (ii) written notice thereof has
been given to Lessor by the Agent at the request of any
Lender; or
(c) an "Event of Default" shall have occurred under the
Indenture; or
(d) any representation, warranty, certification or statement
made by Lessor in Article IV of this Agreement or in any certificate,
financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect or misleading in any
material respect when made (or deemed made); or
(e) Lessor shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief
or to the appointment of or taking possession by any such official in
an involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors, or shall fail
generally, or shall admit in writing its inability, to pay its debts as
they become due, or shall take any corporate action to authorize any of
the foregoing; or
(f) an involuntary case or other proceeding shall be commenced
against Lessor seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of
it or any substantial part of its property, and such involuntary case
or other proceeding shall remain undismissed and unstayed for a period
of 60 days; or an order for relief shall be entered against Lessor
under the federal bankruptcy laws as now or hereafter in effect; or
(g) Lessor or any member of its Controlled Groups shall fail
to pay when due any material amount which it shall have become liable
to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of
intent to terminate a Plan or Plans shall be filed under Title IV of
ERISA by Lessor or any member of their respective Controlled Groups,
any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate or to
cause a trustee to be appointed to administer any such Plan or Plans or
a proceeding shall be instituted by a fiduciary of any such Plan or
Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding
shall not have been dismissed within 30 days thereafter; or a condition
shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any such Plan or Plans must be terminated; or
(h) one or more judgments or orders for the payment of money
in an aggregate amount in excess of $500,000 shall be rendered against
Lessor and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(i) a federal tax lien shall be filed against Lessor under
Section 6323 of the Code or a lien of the PBGC shall be filed against
Lessor under Section 4068 of ERISA and in either case such lien shall
remain undischarged for a period of 25 days after the date of filing;
or
(j) the occurrence of any event, act, occurrence, or condition
which the Required Lenders determine either does or has a reasonable
likelihood of causing a Material Adverse Effect;
(k) an "Event of Default" under the Lease shall have occurred
or be in existence;
(l) an "Event of Default" shall have occurred under the Agency
and Development Agreement; or.
(m) an "Event of Default" shall occur under the Mortgage or
the Assignment of Rents, or Lessee or Lessor, as applicable, shall fail
to observe or perform any covenant or agreement contained the Lessee
Undertaking or the Fund Account Security Agreement, and such failure is
not cured within any applicable grace or cure period contained therein.
then, and in every such event:
(i) the Agent shall, if requested by the Required
Lenders, by notice to Lessor, declare the Reimbursement Notes
(together with accrued interest thereon), and all other
amounts payable hereunder and under the other Operative
Documents, to be, and the Reimbursement Notes (together with
accrued interest thereon), and all other amounts payable
hereunder and under the other Operative Documents shall
thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all
of which are hereby waived by Lessor, together with interest
at the Default Rate accruing on the principal amount thereof
from and after the date of such Event of Default, and apply
any amounts in the Additional Rent Collateral Reserve Account
in accordance with Section 6.02; provided that if any Event of
Default specified in paragraph (e) or (f) above occurs,
without any notice by the Agent or the Required Lenders to
Lessor or any other act by the Agent or the Required Lenders,
the Reimbursement Notes (together with accrued interest
thereon) and all other amounts payable hereunder and under the
other Operative Documents shall automatically and without
notice become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are
hereby waived by Lessor together with interest thereon at the
Default Rate accruing on the principal amount thereof from and
after the date of such Event of Default;
(ii) subject to the final sentence of this Section
6.01, the Agent shall, if requested by the Required Lenders,
by notice to the Trustee, direct the Trustee to call the Bonds
for mandatory purchase or declare the principal of the Bonds
to be immediately due and payable pursuant to Section
5.08(a)(v) and 7.01(f) of the Indenture; and
(iii) if the Reimbursement Obligations have not been
paid as required by Section 2.01(e)(i) with respect to any
Letter of Credit, the Agent shall, if requested by the
Required Lenders, give notice to the Trustee, on behalf of all
of the LC Issuers, that the Letters of Credit will not be
reinstated following a Series A Bonds Scheduled Payment
Drawing, a Series B Bonds Scheduled Payment Drawing or a
Tender Drawing. In addition, subject to the final sentence of
this Section 6.01, upon the occurrence of an Event of Default,
to the extent of any existing Letter of Credit Obligations,
upon the demand of the Agent (acting at the direction of the
Required Lenders) by notice to Lessor, Lessor shall
immediately deposit the principal amount thereof with the
Agent and the Agent shall set aside the amounts so deposited
as a collateral reserve account (the "Reimbursement
Obligations Collateral Reserve Account") for payment of the
Reimbursement Obligations relating to Letters of Credit which
are subsequently funded; provided that if any Event of Default
specified in paragraph (e) or (f) above occurs, subject to the
final sentence of this Section 6.01, Lessor shall immediately
be obligated to make such deposit without any notice by the
Agent or the Required Lenders to Lessor or any other act by
the Agent or the Required Lenders. After all Letters of Credit
have been cancelled and all Reimbursement Obligations have
been satisfied, and each LC Issuer has been reimbursed all
amounts funded by it with respect thereto, any balance
remaining in the Reimbursement Obligations Collateral Reserve
Account may be applied to other Obligations, and, if none,
shall be remitted to Lessor;
Notwithstanding the foregoing, the Agent shall have available to it all remedies
under this Agreement, under the other Operative Documents, and all other
remedies at law or equity, and shall exercise any one or all of them at the
request of the Required Lenders; provided, however, that so long as all
obligations of the Lessee are being paid as and when they come due pursuant to
the Lease and the Payment Direction Agreement and no Lease Default has occurred,
(1) the Agent shall not exercise the rights described in clauses (ii) and (iii)
above, (2) the Lessee shall have no obligation under the Lease to pay Rent on an
accelerated basis to enable Lessor to make the deposit in the Reimbursement
Obligations Collateral Reserve Account or to pay the Reimbursement Notes or
Reimbursement Obligations, and (3) the Agent shall not terminate the Lease or
disturb the rights of Lessee thereunder.
Section 6.02. Applicaton of Proceeds of Collateral. Any
proceeds of sale or other disposition of the Collateral will be applied by the
Agent as follows, and thereafter, in accordance with the Agent's sole
discretion:
(i) Any proceeds obtained by the Agent or the Lenders from a
foreclosure or other exercise of rights and remedies with respect to
the Assignment of the Rents, the Fund Account Security Agreement and/or
the Lessee Undertaking, any amount in the Additional Rent Collateral
Reserve Account maintained by the Agent pursuant to Section 2.02 or the
Net Proceeds Collateral Reserve Account maintained by the Agent
pursuant to Section 5.15, shall (after payment of the Obligations
consisting of any unpaid Impositions and any costs and other expenses
relating to the enforcement of such Operative Documents) be applied (i)
first, pro rata to interest on the Reimbursement Obligations, (ii)
secondly, pro rata to the Reimbursement Obligations (Series A Bonds)
and (iii) lastly, pro rata to the Reimbursement Obligations (Series B
Bonds).
(ii) Any proceeds obtained by the Agent or the Lenders from a
foreclosure or other exercise of rights and remedies with respect to
the Mortgages shall (after payment of the Obligations consisting of any
unpaid Impositions and any costs and other expenses relating to the
enforcement of such Operative Documents) be applied (i) first, pro rata
to interest on the Reimbursement Obligations, (ii) secondly, pro rata
to the Reimbursement Obligations (Series B Bonds), and (iii) lastly,
pro rata to the Reimbursement Obligations (Series A Bonds).
In the event that the sale or other disposition of the Collateral fails to fully
satisfy any of the Obligations, Lessor shall remain liable to the Agent and the
Lenders for any deficiency in the Obligations.
ARTICLE VII
THE AGENT
Section 7.01. Appointment; Powers and Immunities. Each Lender
hereby irrevocably appoints and authorizes the Agent to act as its agent
hereunder and under the other Operative Documents with such powers as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such other powers as are reasonably incidental thereto. The Agent: (a)
shall have no duties or responsibilities except as expressly set forth in this
Agreement and the other Operative Documents, and shall not by reason of this
Agreement or any other Loan Document be a trustee for any Lender; (b) shall not
be responsible to the Lenders for any recitals, statements, representations or
warranties contained in this Agreement or any other Loan Document, or in any
certificate or other document referred to or provided for in, or received by any
Lender under, this Agreement or any other Loan Document, or for the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document referred to or provided for herein
or therein or for any failure by Lessor to perform any of its obligations
hereunder or thereunder; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder or under any other Loan Document
except to the extent requested by the Required Lenders, and then only on terms
and conditions satisfactory to the Agent, and (d) shall not be responsible for
any action taken or omitted to be taken by it hereunder or under any other Loan
Document or any other document or instrument referred to or provided for herein
or therein or in connection herewith or therewith, except for its own gross
negligence or wilful misconduct. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care. The
provisions of this Article VII are solely for the benefit of the Agent and the
Lenders, and Lessor shall not have any rights as a third party beneficiary of
any of the provisions hereof. In performing its functions and duties under this
Agreement and under the other Operative Documents, the Agent shall act solely as
agent of the Lenders and does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for Lessor.
The duties of the Agent shall be ministerial and administrative in nature, and
the Agent shall not have by reason of this Agreement or any other Loan Document
a fiduciary relationship in respect of any Lender.
Section 7.02. Reliance by Agent. The Agent shall be entitled
to rely upon any certification, notice or other communication (including any
thereof by telephone, telecopier, telegram or cable) believed by it to be
genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants or other experts selected by the Agent. As to any
matters not expressly provided for by this Agreement or any other Loan Document,
the Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder and thereunder in accordance with instructions signed by the
Required Lenders, and such instructions of the Required Lenders in any action
taken or failure to act pursuant thereto shall be binding on all of the Lenders.
Section 7.03. Defaults. The Agent shall not be deemed to have
knowledge of the occurrence of a Default or an Event of Default (other than the
nonpayment of principal of or interest on the Reimbursement Obligations) unless
the Agent has received notice from a Lender or Lessor specifying such Default or
Event of Default and stating that such notice is a "Notice of Default". In the
event that the Agent receives such a notice of the occurrence of a Default or an
Event of Default, the Agent shall give prompt notice thereof to the Lenders. The
Agent shall give each Lender prompt notice of each nonpayment of principal of or
interest on the Reimbursement Obligations whether or not it has received any
notice of the occurrence of such nonpayment. The Agent shall (subject to Section
9.06) take such action hereunder with respect to such Default or Event of
Default as shall be directed by the Required Lenders, provided that, unless and
until the Agent shall have received such directions, the Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
Section 7.04. Rights of Agent and its Affiliates as a Lender.
With respect to the Wachovia Letter of Credit, Wachovia in its capacity as a
Lender hereunder and any Affiliate of the Agent or such Affiliate in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though Wachovia were not acting
as the Agent, and the term "Lender" or "Lenders" shall, unless the context
otherwise indicates, include Wachovia in its individual capacity and any
Affiliate of the Agent in its individual capacity. The Agent and any Affiliate
of the Agent may (without having to account therefor to any Lender) accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with Lessor (and any of such Lessor's Affiliates), and hold
the Preferred Membership Interests and act as Preferred Member, as if Wachovia
were not acting as the Agent, and the Agent and any Affiliate of the Agent may
accept fees and other consideration from Lessor (in addition to any agency fees
and arrangement fees heretofore agreed to between Lessor and the Agent) for
services in connection with this Agreement or any other Loan Document or
otherwise without having to account for the same to the Lenders.
Section 7.05. Indemnification. Each Lender severally agrees to
indemnify the Agent, to the extent the Agent shall not have been reimbursed by
Lessor, ratably in accordance with its Commitment, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, counsel fees and disbursements) or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of this Agreement or any other Loan Document or any other documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby (excluding, unless an Event of Default has occurred and is continuing,
the normal administrative costs and expenses incident to the performance of its
agency duties hereunder) or the enforcement of any of the terms hereof or
thereof or any such other documents; provided that no Lender shall be liable for
any of the foregoing to the extent they arise from the gross negligence or
wilful misconduct of the Agent. If any indemnity furnished to the Agent for any
purpose shall, in the opinion of the Agent, be insufficient or become impaired,
the Agent may call for additional indemnity and cease, or not commence, to do
the acts indemnified against until such additional indemnity is furnished.
Section 7.06. Consequential Damages. THE AGENT SHALL NOT BE
RESPONSIBLE OR LIABLE TO ANY LENDER, LESSOR OR ANY OTHER PERSON OR ENTITY FOR
ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A
RESULT OF THIS AGREEMENT, THE OTHER Operative Documents OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Ssection 7.07. Payee of Reimbursement Note Treated as Owner.
The Agent may deem and treat the payee of any Reimbursement Note as the owner
thereof for all purposes hereof unless and until a written notice of the
assignment or transfer thereof shall have been filed with the Agent and the
provisions of Section 9.08(c) have been satisfied. Any requests, authority or
consent of any Person who at the time of making such request or giving such
authority or consent is the holder of any Reimbursement Note shall be conclusive
and binding on any subsequent holder, transferee or assignee of that
Reimbursement Note or of any Reimbursement Note or Reimbursement Notes issued in
exchange therefor or replacement thereof.
Section 7.08. Nonreliance on Agent and Other Lenders. Each
Lender agrees that it has, independently and without reliance on the Agent or
any other Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of Lessor and of Lessee and decision
to enter into this Agreement and that it will, independently and without
reliance upon the Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under this Agreement or
any of the other Operative Documents. The Agent shall not be required to keep
itself (or any Lender) informed as to the performance or observance by Lessor of
this Agreement or by Lessee of the Lease or by Lessor or Lessee of any of the
other Operative Documents or any other document referred to or provided for
herein or therein or to inspect the properties or books of Lessor, Lessee or any
other Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Lenders by the Agent hereunder or
under the other Operative Documents, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of Lessor, Lessee or any
other Person (or any of their Affiliates) which may come into the possession of
the Agent.
Section 7.09. Failure to Act. Except for action expressly
required of the Agent hereunder or under the other Operative Documents, the
Agent shall in all cases be fully justified in failing or refusing to act
hereunder and thereunder unless it shall receive further assurances to its
satisfaction by the Lenders of their indemnification obligations under Section
7.05 against any and all liability and expense which may be incurred by the
Agent by reason of taking, continuing to take, or failing to take any such
action.
Section 7.10. Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent may
resign at any time by giving notice thereof to the Lenders and Lessor, and the
Agent may be removed at any time with or without cause by the Required Lenders.
Upon any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Agent. If no successor Agent shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Agent's notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent. Any successor Agent shall be a bank which
has a combined capital and surplus of at least $500,000,000. Upon the acceptance
of any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VII
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Agent hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
Section 8.01. Basis for Determining Interest Rate Inadequate
or Unfair. If on or prior to the first day of any Interest Period:
(a) the Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for
such Interest Period, or
(b) any LC Issuer advises the Agent that the London Interbank
Offered Rate, as the case may be, as determined by the Agent will not
adequately and fairly reflect the cost to such LC Issuer of funding a
Euro-Dollar Rate Tender Advance,
the Agent shall forthwith give notice thereof to Lessor and Lessee, whereupon
until the Agent notifies Lessor and Lessee that the circumstances giving rise to
such suspension no longer exist, the obligations of such LC Issuer to make or
maintain a Euro-Dollar Rate Tender Advance shall be suspended, and such Tender
Advance shall be a Base Rate Tender Advance.
Section 8.02. Illegality. If, after the date hereof, the
adoption of any applicable law, rule or regulation, or any change therein or any
existing or future law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof (any
such agency being referred to as an "Authority" and any such event being
referred to as a "Change of Law"), or compliance by any Lender (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any Authority shall make it unlawful or impossible for any LC Issuer (or its
Lending Office) to make, maintain or fund any Euro-Dollar Tender Advance and
such LC Issuer shall so notify the Agent, the Agent shall forthwith give notice
thereof to Lessor and Lessee, whereupon until such LC Issuer notifies Lessor,
Lessee and the Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such LC Issuer to make or maintain Euro-Dollar
Tender Advances shall be suspended. Before giving any notice to the Agent
pursuant to this Section, such LC Issuer shall designate a different Lending
Office if such designation will avoid the need for giving such notice and will
not, in the judgment of such LC Issuer, be otherwise disadvantageous to such LC
Issuer. If such LC Issuer shall determine that it may not lawfully continue to
maintain and fund any outstanding Euro-Dollar Tender Advance to the last day of
the applicable Interest Period and shall so specify in such notice, Lessor shall
immediately pay in full the accrued interest on such Euro-Dollar Tender Advance
and any amount due such LC Issuer pursuant to Section 8.05(a), and such Tender
Advance shall become a Base Rate Tender Advance.
Section 8.03. Increased Cost and Reduced Return. (a) If after
the date hereof, a Change of Law or compliance by any LC Issuer (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any Authority:
(i) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding any such requirement included in an
applicable Euro-Dollar Reserve Percentage) against assets of, deposits
with or for the account of, or credit extended by, any Euro-Dollar Rate
Tender Advance (or its Lending Office); or
(ii) shall impose on any LC Issuer (or its Lending Office) or
on the London interbank market any other condition affecting its
Euro-Dollar Rate Tender Advance, its Reimbursement Note or its
obligation to make Euro-Dollar Rate Tender Advances;
and the result of any of the foregoing is to increase the cost to such LC Issuer
(or its Lending Office) of making or maintaining any Euro-Dollar Rate Tender
Advance, or to reduce the amount of any sum received or receivable by such LC
Issuer (or its Lending Office) under this Agreement or under its Reimbursement
Note with respect thereto, by an amount deemed by such LC Issuer to be material,
then, within 15 days after demand by such LC Issuer made to Lessor and
Lessee(with a copy to the Agent), Lessor shall pay to such LC Issuer such
additional amount or amounts as will compensate such LC Issuer for such
increased cost or reduction; provided, that no such LC Issuer shall be entitled
to any such compensation for any such increased cost or reduction of sum
received or receivable incurred more than 45 days prior to the date of its
written demand for such compensation.
(b) If any LC Issuer shall have determined that after the date
hereof the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof, or compliance by any LC Issuer (or its Lending Office)
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any Authority, has or would have the effect of reducing the
rate of return on such LC Issuer's capital as a consequence of its obligations
hereunder to a level below that which such LC Issuer could have achieved but for
such adoption, change or compliance (taking into consideration such LC Issuer's
policies with respect to capital adequacy) by an amount deemed by such LC Issuer
to be material, then from time to time, within 15 days after demand by such LC
Issuer made to Lessor and Lessee, Lessor shall pay to such LC Issuer such
additional amount or amounts as will compensate such LC Issuer for such
reduction; provided, that no such LC Issuer shall be entitled to any such
compensation for any such reduction of the rate of return incurred more than 45
days prior to the date of its written demand for such compensation.
(c) Each LC Issuer will promptly notify Lessor, Lessee and the
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such LC Issuer to compensation pursuant to this Section and
will designate a different Lending Office if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the
judgment of such LC Issuer, be otherwise disadvantageous to such LC Issuer. A
certificate of any LC Issuer claiming compensation under this Section and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error. In determining such amount, such
LC Issuer may use any reasonable averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be applicable
with respect to any Participant, Assignee or other Transferee, and any
calculations required by such provisions shall be made based upon the
circumstances of such Participant, Assignee or other Transferee.
Section 8.04. Base Rate Tender Advances Substituted for
Euro-Dollar Rate Tender Advances. If (i) the obligation of any LC Issuer to make
or maintain any Euro-Dollar Rate Tender Advance has been suspended pursuant to
Section 8.02 or (ii) any LC Issuer has demanded compensation under Section 8.03,
and Lessee (acting on behalf of Lessor) shall, by at least 5 Euro-Dollar
Business Days' prior notice to such LC Issuer through the Agent, have elected
that the provisions of this Section shall apply to such LC Issuer, then, unless
and until such LC Issuer notifies Lessor and Lessee that the circumstances
giving rise to such suspension or demand for compensation no longer apply:
(a) all Tender Advances which would otherwise be made or
maintained by such LC Issuer as Euro-Dollar Tender Advances shall be
made instead as Base Rate Tender Advances (in all cases interest and
principal on such Base Rate Tender Advances shall be payable
contemporaneously with the related Euro-Dollar Rate Tender Advances, if
any, of the other LC Issuers), and
(b) after each of its Euro-Dollar Tender Advances has been
repaid, all payments of principal which would otherwise be applied to
repay such Euro-Dollar Rate Tender Advances shall be applied to repay
its Base Rate Tender Advances instead.
Section 8.05. Compensation. Upon the request of any LC Issuer,
delivered to Lessor, Lessee and the Agent, Lessor shall pay to such LC Issuer
such amount or amounts as shall compensate such LC Issuer for any loss, cost or
expense incurred by such LC Issuer as a result of any payment or prepayment of a
Euro-Dollar Rate Tender Advance on a date other than the last day of an Interest
Period for such Euro-Dollar Rate Tender Advance; such compensation to include,
without limitation, an amount equal to the excess, if any, of (x) the amount of
interest which would have accrued on the amount so paid or prepaid for the
period from the date of such payment or prepayment or failure to prepay or
borrow to the last day of the then current Interest Period for such Euro-Dollar
Rate Tender Advance (or, in the case of a failure to prepay, the Interest Period
for such Euro-Dollar Rate Tender Advance which would have commenced on the date
of such failure to prepay) at the applicable rate of interest for such
Euro-Dollar Rate Tender Advance provided for herein (excluding, however, for
purposes of this Section only, the components of the Euro-Dollar Rate other than
the Adjusted London Interbank Rate in determining such rate of interest) over
(y) the amount of interest (as reasonably determined by such LC Issuer) such LC
Issuer would have paid on deposits in Dollars of comparable amounts having terms
comparable to such period placed with it by leading banks in the London
interbank market.
Section 8.06. Replacement of LC Issuer. In the event that any
LC Issuer gives any notice under Section 8.02 resulting in the suspension of its
obligation to make or maintain Euro-Dollar Tender Advances or requests
compensation pursuant to Section 8.03 or Lessor is required to make any payment
pursuant to Section 2.06(c), then, so long as the condition giving rise to such
suspension, compensation or payment exists, Lessee (acting on behalf of Lessor)
may designate another bank or financial institution which is an Eligible Lender
(such bank or financial institution being herein called a "Replacement LC
Issuer") acceptable to the Agent (which acceptance will not be unreasonably
withheld) and which is not an Affiliate of Lessor or Lessee, to replace the
Letter of Credit of such LC Issuer and assume such LC Issuer's Commitment
hereunder and purchase such LC Issuer's Reimbursement Note and rights under this
Agreement, all without recourse to or representation or warranty by, or expense
to, such LC Issuer, for a purchase price equal to the outstanding principal
amount of the Reimbursement Note of such LC Issuer plus any accrued but unpaid
interest on such Euro-Dollar Rate Tender Advance and accrued but unpaid fees
owing to such LC Issuer plus any amounts payable to such LC Issuer under Section
8.05, and upon such replacement, assumption, purchase and substitution, and
subject to the execution and delivery by the Replacement LC Issuer to the Agent,
for re-delivery to the Trustee, of the replacement Letter of Credit and to the
Agent of an Assignment and Acceptance, the Replacement LC Issuer shall succeed
to the rights and obligations of such LC Issuer hereunder. In the event that
Lessor exercises its rights under the preceding sentence, the LC Issuer against
which such rights were exercised shall no longer be a party hereto or have any
rights or obligations hereunder; provided that the obligations of Lessor to such
LC Issuer under Article VIII and Section 9.03 with respect to events occurring
or obligations arising before or as a result of such replacement shall survive
such exercise.
ARTICLE IX
MISCELLANEOUS
Secton 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including telecopier
or similar writing) and shall be given to such party at its address or
telecopier number set forth on the signature pages hereof or such other address
or telecopier number as such party may hereafter specify for the purpose by
notice to each other party. Each such notice, request or other communication
shall be effective (i) if given by telecopier, when such telecopy is transmitted
to the telecopier number specified in this Section and the confirmation is
received, (ii) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid or (iii)
if given by any other means, when delivered at the address specified in this
Section; provided that notices to the Agent under Article II or Article VIII
shall not be effective until received. A copy of any notice given by any party
hereunder shall be given to the Lessee at its address specified in the Lease or
such other address or telecopier number as the Lessee may hereafter specify to
the parties hereto.
Section 9.02. No Waivers. No failure or delay by the Agent or
any Lender in exercising any right, power or privilege hereunder or under any
Reimbursement Note or other Loan Document shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 9.03. Expenses; Documentary Taxes. Lessor shall pay
(i) all out-of-pocket expenses of the Agent, including fees and disbursements of
special counsel for the Agent, in connection with the preparation of this
Agreement and the other Operative Documents, any waiver or consent hereunder or
thereunder or any amendment hereof or thereof or any Default or alleged Default
hereunder or thereunder and (ii) if a Default occurs, all out-of-pocket expenses
incurred by the Agent and the Lenders, including fees and disbursements of
counsel, in connection with such Default and collection and other enforcement
proceedings resulting therefrom, including out-of-pocket expenses incurred in
enforcing this Agreement and the other Operative Documents. Lessor shall
indemnify the Agent and each Lender against any transfer taxes, documentary
taxes, assessments or charges made by any Authority by reason of the execution
and delivery of this Agreement, the Reimbursement Notes or the other Operative
Documents.
Section 9.04. Indemnification. Lessor shall indemnify the
Agent, the Lenders and each Affiliate thereof and their respective directors,
officers, employees and agents from, and hold each of them harmless against, any
and all losses, liabilities, claims or damages to which any of them may become
subject, insofar as such losses, liabilities, claims or damages arise out of or
result from any actual or proposed use by Lessor of the proceeds of any
extension of credit by any Lender hereunder or breach by Lessor of this
Agreement or any other Loan Document or from any investigation, litigation
(including, without limitation, any actions taken by the Agent or any of the
Lenders to enforce this Agreement or any of the other Operative Documents) or
other proceeding (including, without limitation, any threatened investigation or
proceeding) relating to the foregoing, and Lessor shall reimburse the Agent and
each Lender, and each Affiliate thereof and their respective directors,
officers, employees and agents, upon demand for any expenses (including, without
limitation, legal fees) incurred in connection with any such investigation or
proceeding; but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or wilful misconduct of the
Person to be indemnified.
Section 9.05. Setoff; Sharing of Setoffs. (a) Lessor hereby
grants to the Agent and each Lender a lien for all indebtedness and obligations
owing to them from Lessor upon all deposits or deposit accounts, of any kind, or
any interest in any deposits or deposit accounts thereof, now or hereafter
pledged, mortgaged, transferred or assigned to the Agent or any such Lender or
otherwise in the possession or control of the Agent or any such Lender for any
purpose for the account or benefit of Lessor and including any balance of any
deposit account or of any credit of Lessor with the Agent or any such Lender,
whether now existing or hereafter established hereby authorizing the Agent and
each Lender at any time or times with or without prior notice to apply such
balances or any part thereof to such of the indebtedness and obligations owing
by Lessor to the Lenders and/or the Agent then past due and in such amounts as
they may elect, and whether or not the collateral, if any, or the responsibility
of other Persons primarily, secondarily or otherwise liable may be deemed
adequate. For the purposes of this paragraph, all remittances and property shall
be deemed to be in the possession of the Agent or any such Lender as soon as the
same may be put in transit to it by mail or carrier or by other bailee.
(b) Each Lender agrees that if it shall, by exercising any
right of setoff or counterclaim or resort to collateral security or otherwise,
receive payment of a proportion of the aggregate amount of Obligations owed to
it which is greater than the proportion received by any other Lender in respect
of the aggregate amount of all Obligations held by such other Lender, the Lender
receiving such proportionately greater payment shall purchase such
participations in the Obligations owing to such other Lenders, and such other
adjustments shall be made, as may be required so that all such payments of
Obligations owing to such other Lenders shall be shared by the Lenders pro rata;
provided that if all or any portion of such payment received by the purchasing
Lender is thereafter recovered from such purchasing Lender, such purchase from
each other Lender shall be rescinded and such other Lender shall repay to the
purchasing Lender the purchase price of such participation to the extent of such
recovery together with an amount equal to such other Lender's ratable share
(according to the proportion of (x) the amount of such other Lender's required
repayment to (y) the total amount so recovered from the purchasing Lender) of
any Obligations paid or payable by the purchasing Lender in respect of the total
amount so recovered. Lessor agrees, to the fullest extent it may effectively do
so under applicable law, that any holder of a participation in any of the
Obligations, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of setoff or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of Lessor in the amount of such participation.
Section 9.06. Amendments and Waivers. (a) Any provision of
this Agreement, the Reimbursement Notes or any other Operative Documents may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed by Lessor and the Required Lenders (and, if the rights or duties of the
Agent are affected thereby, by the Agent); provided that, no such amendment or
waiver shall, unless signed by all Lenders, (i) change the Commitment of any
Lender or subject any Lender to any additional obligation, (ii) change the
principal of or rate of interest on any Reimbursement Note or other
Reimbursement Obligation or any fees (other than fees payable to the Agent)
hereunder, (iii) change the date fixed for any payment of principal of or
interest on any Reimbursement Note or other Reimbursement Obligation or any fees
hereunder, (iv) change the amount of principal, interest or fees due on any date
fixed for the payment thereof, (v) change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Reimbursement Notes, or the
percentage of Lenders, which shall be required for the Lenders or any of them to
take any action under this Section or any other provision of this Agreement,
(vi) change the manner of application of any payments made under this Agreement
or the Reimbursement Notes, (vii) release or substitute any Individual Property
or all or any substantial part of any other collateral (if any) held as security
for the Obligations (other than (x) a substitution of Individual Properties
pursuant to Section 4.4(a) of the Lease, which may be done with the consent of
the Agent and the Required Lenders, which consent shall not be unreasonably
withheld or (y) a release expressly required pursuant to the provisions of the
Lease, or (viii) release any Guarantee given to support payment of the
Obligations.
(b) Lessee will not solicit, request or negotiate for or with
respect to any proposed waiver or amendment of any of the provisions of this
Agreement unless each Lender shall be informed thereof by Lessee and shall be
afforded an opportunity of considering the same and shall be supplied by Lessee
with sufficient information to enable it to make an informed decision with
respect thereto. Executed or true and correct copies of any waiver or consent
effected pursuant to the provisions of this Agreement shall be delivered by
Lessee to each Lender forthwith following the date on which the same shall have
been executed and delivered by the requisite percentage of Lenders. Lessor will
not, directly or indirectly, pay or cause to be paid any remuneration, whether
by way of supplemental or additional interest, fee or otherwise, to any Lender
(in its capacity as such) as consideration for or as an inducement to the
entering into by such Lender of any waiver or amendment of any of the terms and
provisions of this Agreement unless such remuneration is concurrently paid, on
the same terms, ratably to all such Lenders.
Section 9.07. No Margin Stock Collateral. Each of the Lenders
represents to the Agent and each of the other Lenders that it in good faith is
not, directly or indirectly (by negative pledge or otherwise), relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
Section 9.08. Successors and Assigns (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided that Lessor may not
assign or otherwise transfer any of its rights under this Agreement.
(b) The LC Participants may not sell sub-participations in the
Wachovia Letter of Credit, except to any Affiliate of such LC Participant (an
"LC Sub-participation Affiliate") and may not assign their rights and
obligations as an LC Participant except (i) pursuant to 2.01(b) or (ii)
otherwise to an Eligible Lender, but only with the express written consent of
Wachovia, the Agent and Lessee. Each LC Participant shall be entitled to the
benefits of Article VIII with respect to its participation in the Wachovia
Letter of Credit and the Reimbursement Note held by Wachovia. Subject to the
provisions hereof, the LC Issuers (including Wachovia) may sell participations
in their Letters of Credit to any Person (an "Other Participant"). Each Other
Participant and LC Sub-participation Affiliate shall be entitled to the benefits
of Article VIII with respect to its participation or sub-participation in the
Letter of Credit and the Reimbursement Note held by the LC Issuer or LC
Participant in which it has purchased a participation or sub-participation, but
no Other Participant or LC Sub-participation Affiliate shall be, or have the
rights hereunder or under any of the other Operative Documents of, an LC
Participant. In the event of any such sale by an LC Issuer of a participating
interest to an Other Participant, or sale by an LC Participant of a
sub-participation to an LC Sub-participation Affiliate, such LC Issuer's or LC
Participant's obligations under this Agreement shall remain unchanged, such LC
Issuer or LC Participant shall remain solely responsible for the performance
thereof, such LC Issuer or LC Participant shall remain the holder of its
Reimbursement Note or participation in the Reimbursement Note of Wachovia, for
all purposes under this Agreement, and Lessor and the Agent shall continue to
deal solely and directly with such LC Issuer or LC Participant in connection
with such LC Issuer's or LC Participant's rights and obligations under this
Agreement. In no event shall an LC Issuer that sells a participation to an Other
Participant or an LC Participant that sells a sub-participation to an LC
Sub-participation Affiliate be obligated to the Other Participant or LC
Sub-participation Affiliate to take or refrain from taking any action hereunder
except that such LC Issuer or LC Participant may agree that it will not (except
as provided below), without the consent of the Other Participant or LC
Sub-participation Affiliate, agree to (i) the change of any date fixed for the
payment of principal of or interest on the related Reimbursement Obligations,
(ii) the change of the amount of any principal, interest or fees due on any date
fixed for the payment thereof with respect to the related Letter of Credit or
Reimbursement Obligations, (iii) the change of the principal amount of the
related Letter of Credit or Reimbursement Obligations, (iv) any change in the
rate at which either interest is payable thereon or (if the Other Participant or
LC Sub-participation Affiliate is entitled to any part thereof) fee is payable
hereunder from the rate at which the Participant is entitled to receive interest
or fee (as the case may be) in respect of such participation or
sub-participation, (v) the release or substitution of all or any substantial
part of the collateral (if any) held as security for the Obligations, or (vi)
the release of any Guarantee which may hereafter have been given to support
payment of the Obligations. Each LC Issuer selling a participating interest in
any Letter of Credit and Reimbursement Note shall, and each LC Participant
selling a sub-participation to an LC Sub-participation Affiliate, within 10
Domestic Business Days of such sale, provide the Lessor, Lessee and the Agent
with written notification stating that such sale has occurred and identifying
the Other Participant or LC Sub-participation Affiliate and the interest
purchased by such Other Participant or LC Sub-participation Affiliate.
(c) Any Lender may at any time assign to one or more banks or
financial institutions which would, upon such assignment, be an Eligible Lender
(each an "Assignee") all or a proportionate part of its rights and obligations
under this Agreement, the Reimbursement Notes, the Letters of Credit and the
other Operative Documents, and such Assignee shall assume all such rights and
obligations, pursuant to an Assignment and Acceptance, executed by such
Assignee, such transferor Lender and the Agent (and, in the case of an Assignee
that is not then a Lender, subject to clause (iii) below, by Lessor), (ii) with
respect to the sale of its rights and obligations as an LC Issuer, such
assignment must be of all of such rights and obligations and such assignee must
issue a replacement Letter of Credit, (iii) except during the continuance of a
Default, no interest may be sold by a Lender pursuant to this paragraph (c) to
any Assignee that is not then a Lender (or an Affiliate of a Lender) without the
consent of Lessor, Lessee and the Agent, which consent shall not be unreasonably
withheld, and (iv) a Lender may not have more than 2 Assignees that are not then
Lenders at any one time. Upon (A) execution of the Assignment and Acceptance by
such transferor Lender, and the issuance of any replacement Letter of Credit, if
applicable, such Assignee, the Agent and (if applicable) Lessor, (B) delivery of
an executed copy of the Assignment and Acceptance to Lessor and the Agent, (C)
payment by such Assignee to such transferor Lender of an amount equal to the
purchase price agreed between such transferor Lender and such Assignee, and (D)
payment by such Assignee of a processing and recordation fee of $2,500 to the
Agent, such Assignee shall for all purposes be a Lender party to this Agreement
and shall have all the rights and obligations of a Lender under this Agreement
to the same extent as if it were an original party hereto with a Commitment as
set forth in such instrument of assumption, and the transferor Lender shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by Lessor, the Lenders or the Agent shall be required.
Upon the consummation of any transfer to an Assignee pursuant to this paragraph
(c), the transferor Lender, the Agent and Lessor shall make appropriate
arrangements so that, if required, a new Reimbursement Note is issued to each of
such Assignee and such transferor Lender.
(d) Subject to the provisions of Section 9.09, Lessor
authorizes each Lender to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and any prospective Transferee any and all
financial information in such Lender's possession concerning Lessor which has
been delivered to such Lender by Lessor pursuant to this Agreement or which has
been delivered to such Lender by Lessor in connection with such Lender's credit
evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater
payment under Section 8.03 than the transferor Lender would have been entitled
to receive with respect to the rights transferred, unless such transfer is made
with Lessor's and Lessee's prior written consent or by reason of the provisions
of Section 8.02 or 8.03 requiring such Lender to designate a different Lending
Office under certain circumstances or at a time when the circumstances giving
rise to such greater payment did not exist.
(f) Anything in this Section 9.08 to the contrary
notwithstanding, any Lender may assign and pledge all or any portion of the
Tender Advances and/or obligations owing to it to any Federal Reserve Bank or
the United States Treasury as collateral security pursuant to Regulation A of
the Board of Governors of the Federal Reserve System and any Operating Circular
issued by such Federal Reserve Bank, provided that any payment in respect of
such assigned Tender Advances and/or obligations made by Lessor to the assigning
and/or pledging Lender in accordance with the terms of this Agreement shall
satisfy Lessors' obligations hereunder in respect of such assigned Tender
Advances and/or obligations to the extent of such payment. No such assignment
shall release the assigning and/or pledging Lender from its obligations
hereunder.
Section 9.09. Confidentiality. Each Lender agrees to exercise
commercially reasonable efforts to keep any information delivered or made
available by Lessor to it which is clearly indicated to be confidential
information, confidential from anyone other than persons employed or retained by
such Lender who are or are expected to become engaged in evaluating, approving,
structuring or administering the Letters of Credit and the facility for making
Tender Advances; provided that nothing herein shall prevent any Lender from
disclosing such information (i) to any other Lender, (ii) upon the order of any
court or administrative agency, (iii) upon the request or demand of any
regulatory agency or authority having jurisdiction over such Lender, (iv) which
has been publicly disclosed, (v) to the extent reasonably required in connection
with any litigation to which the Agent, any Lender or their respective
Affiliates may be a party, (vi) to the extent reasonably required in connection
with the exercise of any remedy hereunder, (vii) to such Lender's legal counsel
and independent auditors and (viii) to any actual or proposed Participant,
Assignee or other Transferee of all or part of its rights hereunder which has
agreed in writing to be bound by the provisions of this Section 9.09; provided
that should disclosure of any such confidential information be required by
virtue of clause (ii) of the immediately preceding sentence, to the extent
permitted by law, any relevant Lender shall promptly notify Lessor of same so as
to allow Lessor to seek a protective order or to take any other appropriate
action; provided, further, that, no Lender shall be required to delay compliance
with any directive to disclose any such information so as to allow Lessor to
effect any such action.
Section 9.10. Representations by Lenders. Each Lender hereby
represents that it is a commercial lender or financial institution which makes
loans and issues letters of credit in the ordinary course of its business and
that it will make its Tender Advances (if any) and issue its Letter of Credit
(or obtain its participation interest in the Wachovia Letter of Credit)
hereunder for its own account in the ordinary course of such business; provided
that, subject to Section 9.08, the disposition of the Obligations held by that
Lender shall at all times be within its exclusive control.
Section 9.11. Obigations Several. The obligations of each LC
Issuer hereunder are several, and no LC Issuer shall be responsible for the
obligations or commitment of any other LC Issuer hereunder. Nothing contained in
this Agreement and no action taken by the Lenders pursuant hereto shall be
deemed to constitute the Lenders to be a partnership, an association, a joint
venture or any other kind of entity. The amounts payable at any time hereunder
to each Lender shall be a separate and independent debt, and each Lender shall
be entitled to protect and enforce its rights arising out of this Agreement or
any other Loan Document and it shall not be necessary for any other Lender to be
joined as an additional party in any proceeding for such purpose.
Section 9.12. New York Law. This Agreement and each
Reimbursement Note shall be construed in accordance with and governed by the law
of the State of New York.
Section 9.13. Severability. In case any one or more of the
provisions contained in this Agreement, the Reimbursement Notes or any of the
other Operative Documents should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby and shall be enforced to the greatest extent permitted by law.
Section 9.14. Interest. In no event shall the amount of
interest, and all charges, amounts or fees contracted for, charged or collected
pursuant to this Agreement, the Reimbursement Notes or the other Operative
Documents and deemed to be interest under applicable law (collectively,
"Interest") exceed the highest rate of interest allowed by applicable law (the
"Maximum Rate"), and in the event any such payment is inadvertently received by
any Lender, then the excess sum (the "Excess") shall be credited as a payment of
principal, unless Lessor shall notify such Lender in writing that it elects to
have the Excess returned forthwith. It is the express intent hereof that Lessor
not pay and none of the Lenders receive, directly or indirectly in any manner
whatsoever, interest in excess of that which may legally be paid by Lessor under
applicable law. The right to accelerate maturity of any of the Reimbursement
Notes or payment of the Reimbursement Obligations does not include the right to
accelerate any interest that has not otherwise accrued on the date of such
acceleration, and the Agent and the Lenders do not intend to collect any
unearned interest in the event of any such acceleration. All monies paid to the
Agent or the Lenders hereunder or under any of the Reimbursement Notes or the
other Operative Documents, whether at maturity or by prepayment, shall be
subject to rebate of unearned interest as and to the extent required by
applicable law. By the execution of this Agreement, Lessor covenants, to the
fullest extent permitted by law, that (i) the credit or return of any Excess
shall constitute the acceptance by Lessor of such Excess, and (ii) Lessor shall
not seek or pursue any other remedy, legal or equitable, against the Agent or
any Lender, based in whole or in part upon contracting for charging or receiving
any Interest in excess of the Maximum Rate. For the purpose of determining
whether or not any Excess has been contracted for, charged or received by the
Agent or any Lender, all interest at any time contracted for, charged or
received from Lessor in connection with this Agreement, the Reimbursement Notes
or any of the other Operative Documents shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread in equal parts
throughout the full term of the Commitments. Lessor, the Agent and each Lender
shall, to the maximum extent permitted under applicable law, (i) characterize
any non-principal payment as an expense, fee or premium rather than as Interest
and (ii) exclude voluntary prepayments and the effects thereof. The provisions
of this Section shall be deemed to be incorporated into each Reimbursement Note
and each of the other Operative Documents (whether or not any provision of this
Section is referred to therein). All such Operative Documents and communications
relating to any Interest owed by Lessor and all figures set forth therein shall,
for the sole purpose of computing the extent of obligations hereunder and under
the Reimbursement Notes and the other Operative Documents be automatically
recomputed by Lessor, and by any court considering the same, to give effect to
the adjustments or credits required by this Section.
Section 9.15. Interpretation. No provision of this Agreement
or any of the other Operative Documents shall be construed against or
interpreted to the disadvantage of any party hereto by any court or other
governmental or judicial authority by reason of such party having or being
deemed to have structured or dictated such provision.
Section 9.16. Waiver of Jury Trial; Consent to Jurisdiction.
Lessor (a) and each of the Lenders and the Agent irrevocably waives, to the
fullest extent permitted by law, any and all right to trial by jury in any legal
proceeding arising out of this Agreement, any of the other Operative Documents,
or any of the transactions contemplated hereby or thereby, (b) submits to the
nonexclusive personal jurisdiction in the State of New York, the courts thereof
and the United States District Courts sitting therein, for the enforcement of
this Agreement, the Reimbursement Notes and the other Operative Documents, (c)
waives any and all personal rights under the law of any jurisdiction to object
on any basis (including, without limitation, inconvenience of forum) to
jurisdiction or venue within the State of New York for the purpose of litigation
to enforce this Agreement, the Reimbursement Notes or the other Operative
Documents, and (d) agrees that service of process may be made upon it in the
manner prescribed in Section 9.01 for the giving of notice to Lessor. Nothing
herein contained, however, shall prevent the Agent from bringing any action or
exercising any rights against any security and against Lessor personally (but
not against the Preferred Member or the Common Members), and against any assets
of Lessor, within any other state or jurisdiction.
Section 9.17. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
Section 9.18. Source of Funds -- ERISA. Each of the Lenders
hereby severally (and not jointly) represents to Lessor that no part of the
funds to be used by such Lender to fund any Tender Advance made by it or its
funding with respect to any Letter of Credit hereunder from time to time
constitutes (i) assets allocated to any separate account maintained by such
Lender in which any employee benefit plan (or its related trust) has any
interest nor (ii) any other assets of any employee benefit plan. As used in this
Section, the terms "employee benefit plan" and "separate account" shall have the
respective meanings assigned to such terms in Section 3 of ERISA.
Section 9.21. Exculpation. Neither Lessor nor any Preferred
Member or Common Member shall have any obligation or liability for payment of
the Obligations, either under this Agreement, the Reimbursement Notes or any
other Operative Documents, and the Lenders will have no claims or other recourse
against Lessor or any Preferred Member or Common Member, or against any assets
of Lessor or any Preferred Member or Common Member, in respect of the
Obligations, either under this Agreement, the Reimbursement Notes or any other
Operative Documents; and the Lenders shall not have any right to enforce any
obligations of a Preferred Member or Common Member to make a contribution to
Lessor under any provision of the Operating Agreement. Neither Lessor nor any
Preferred Member or Common Member nor any of their respective assets shall be
subject to any lien, levy, execution or any other enforcement procedure relating
directly or indirectly to the Obligations; provided, however, that in the event
of a dissolution of Lessor, any assets of Lessor that are received by any
Preferred Member or Common Member in such dissolution shall be subject to the
claims of the Lenders for the enforcement of payment thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, under seal, by their respective authorized
officers as of the day and year first above written.
MOVIEPLEX REALTY LEASING,
L.L.C. (SEAL)
By: Xxxxxxxx, Xxxxxx & Co.,
Inc., its sole managing
member
By: /s/Xxxxx X. Xxxxx
-----------------
Xxxxx X. Xxxxx
Vice President
MoviePlex Realty Leasing,
L.L.C.
0 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopier no: 212-775-0901
Confirmation no: 000-000-0000
Commitments WACHOVIA BANK, N.A.,
as Agent and as a
Lender (SEAL)
By: /s/Xxxxxxx X. Xxxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
