FIRST AMENDMENT TO CREDIT AGREEMENT
EXHIBIT 10.1
FIRST
AMENDMENT TO CREDIT AGREEMENT
THIS
FIRST AMENDMENT TO CREDIT AGREEMENT dated as of September 28, 2006 (the
“First
Amendment”),
is by
and among TRUSTREET PROPERTIES, INC., a Maryland corporation (together with
any
permitted successors and assigns, the “Borrower”),
the
Guarantors (as defined in the Credit Agreement), the Lenders (as defined in
the
Credit Agreement), BANK OF AMERICA, N.A., as Administrative Agent, L/C Issuer
and Swing Line Lender (each as defined in the Credit Agreement) and BANC OF
AMERICA SECURITIES LLC, as sole lead arranger (the “Sole
Lead Arranger”)
and
sole book manager (the “Sole
Book Manager”),
and
is an amendment to that certain Credit Agreement dated as of April 8, 2005
by and among the parties to this First Amendment (as the same may have been
otherwise or further amended, restated, supplemented or otherwise modified
prior
to the date hereof, the “Credit
Agreement”).
W
I T N E S S E T H
WHEREAS,
the
Borrower and the Guarantors have requested and the Lenders and Administrative
Agent have agreed to amend the Credit Agreement on the terms and conditions
set
forth herein;
NOW,
THEREFORE,
for
good and valuable consideration, the receipt of which is hereby acknowledged
by
the parties hereto, the parties hereto agree as follows:
1. Amendments
to Credit Agreement.
The
parties to this First Amendment hereby agree that from and after the First
Amendment Effective Date (as such term is defined below) the Credit Agreement
is
amended as follows:
(a) Definitions.
Article I of the Credit Agreement is hereby amended (i) with regard to such
of the following terms that are currently set forth in such Article I, by
deleting the definitions for the following terms and replacing in the
appropriate alphabetical order such deleted definitions with the new definitions
set forth below and (ii) with regard to such of the following terms that are
not
currently set forth in such Article I, by adding in the appropriate
alphabetical order the definitions for the following terms.
““Applicable
Margin”
means,
for the purposes of calculating (a) the Letter of Credit Fees for the purposes
of Section
2.03(i),
(b) the
interest rates applicable to Eurodollar Revolving Loans and Eurodollar Term
Loans for the purposes of Section
2.08(a),
and (c)
the interest rates applicable to Base Rate Revolving Loans, Base Rate Term
Loans
and Swing Line Loans for the purposes of Section
2.08(a),
the
following basis points per annum:
|
Pricing
Level
|
Consolidated
Leverage
Ratio
|
Eurodollar
Revolving Loan Margin and Letter of Credit Fee Margin
|
Eurodollar
Term Loan Margin
|
Base
Rate Revolving Loan
Margin
|
Base
Rate Term Loan and Swing Line Loan Margin
|
|
1
|
<
45%
|
100
|
200
|
0
|
50
|
|
2
|
>45%
and <
50%
|
125
|
200
|
0
|
50
|
|
3
|
>
50% and <
60%
|
150
|
200
|
25
|
50
|
|
4
|
>
60%
|
175
|
200
|
50
|
50
|
Any
increase or decrease in the Applicable Margin resulting from a change in the
Consolidated Leverage Ratio shall become effective the first Business Day
immediately following the date a Compliance Certificate is delivered pursuant
to
Section
7.02(b);
provided,
however, that if a Compliance Certificate is not delivered when due in
accordance therewith, then Pricing Level 4 shall apply as of the first Business
Day after the date on which such Compliance Certificate was required to have
been delivered until the first Business Day immediately following delivery
thereof. The Applicable Margin in effect from the First Amendment Effective
Date
through the date for delivery of the Compliance Certificate for the fiscal
quarter ending September 30, 2006 shall be determined based upon Pricing Level
3. Determinations by the Administrative Agent of the appropriate Pricing Level
shall be conclusive absent manifest error.”
““Approved
Acquired Concept”
means
any Concept that the Required Lenders have, in connection with the Acquisition
by the Borrower
or any
of its Subsidiaries of a portfolio of real estate assets, approved for
qualification as such in writing (such approval not to be unreasonably withheld
or delayed); provided, that any such qualification shall not, in any case,
extend beyond the date which is twenty-four (24) months following the applicable
Acquisition.”
““Approved
Acquired Tenant”
means
any Tenant that the Required Lenders have, in connection with the Acquisition
by
the Borrower
or any
of its Subsidiaries of a portfolio of real estate assets, approved for
qualification as such in writing (such approval not to be unreasonably withheld
or delayed); provided, that any such qualification shall not, in any case,
extend beyond the date which is twenty-four (24) months following the applicable
Acquisition.”
““BBA
Development Property”
means,
as of any date of determination, each Real Property meeting each of the
following criteria:
(a) such
Real
Property has not been a BBA Development Property for a period in excess of
twelve (12) calendar months;
(b) such
Real
Property is a Development Property;
(c) such
Real
Property is the subject of an executed lease or related binding letter of intent
that fails to qualify as a Borrowing Base Lease solely as a result of (i) the
failure of the applicable Tenant to commence rental payments thereunder (to
the
extent such failure is solely related to the pending completion of the
applicable improvements in accordance with the terms of such lease); and (ii)
the failure of the improvements located on the property to be fully completed
and occupied;
(d) construction
with respect to such Real Property is on schedule, within the budget for such
construction (subject to any applicable contingencies) and projected to be
completed as of any date required in the applicable lease/letter of intent
related to such Real Property and, in any case, within twelve (12) months of
the
date on which such Real Property is first listed as a BBA Development
Property;
(e) such
Real
Property is either (i) 100% owned in fee simple by any Loan Party; (ii) majority
owned by a Loan Party or (iii) leased by any Loan Party such that the applicable
Real Property qualifies as a Qualified Ground Lease Asset;
(f) such
Real
Property either (i) is set forth on Schedule
5.01(n)
hereto
(as such schedule may be updated from time to time in accordance with
Section
7.02(b))
or (ii)
has been added by the Borrower
to the
calculation of the Borrowing Base during the then-continuing fiscal quarter,
in
each case to the extent that such Real Property has not been removed from the
calculation of the Borrowing Base during the then-continuing fiscal quarter;
(g) such
Real
Property is located in the United States of America;
(h) such
Real
Property is intended to be operated as a restaurant, automobile service station
or other similar service retail property or has been otherwise expressly
approved by the Administrative Agent in writing and in the Administrative
Agent’s discretion;
(i) that
is
not the subject of any condemnation proceeding(s) as of such date that is or
are
material to the future profitable operation of such Real Property and has not,
since initial qualification as a “BBA Development Property” hereunder, been
subject to any condemnation that is material to the future profitable operation
of such Real Property;
(j) neither
such Real Property nor any interest of any applicable Loan Party therein
(including the lease thereof or any indirect interest owned by the Loan
Parties), is subject to (i) any Lien other than Permitted Liens of the types
described in clauses (c), (d), (g), (j), and/or (k) of Section
8.01
or (ii)
any Negative Pledge; and
(k) that
is
(and, in the case of a Real Property constituting an interest in land alone,
the
material improvements located thereon are) free of all structural defects,
environmental conditions or other adverse matters except for defects, conditions
or matters individually or collectively which are not material to the profitable
operation of such Real Property.”
““BBA
Development Property Amount”
means,
as of any date of determination with respect to the BBA Development Properties,
collectively, an amount equal to (a) the aggregate net Investment of the owners
in such BBA Development Properties; provided, that such Investment shall be
multiplied
by (b) (i) if such Real
Property is
owned
by a Wholly-Owned Subsidiary of the Borrower, one; or (ii) if such Real
Property is
owned
by a Consolidated Party that is not the Borrower or a Wholly-Owned Subsidiary
of
the Borrower, the Borrower Interest with respect to such Consolidated
Party).”
““BBA
EBITDA”
means,
for any Calculation Period, the aggregate Property-Level EBITDA generated over
such period by the BBA Operating Properties and the BBA Newly Acquired
Properties; provided,
however,
that
for BBA Newly Acquired Properties, the Property-Level EBITDA generated by such
BBA Newly Acquired Properties shall, for purposes of this definition, equal
the
annualized Property-Level EBITDA from such BBA Newly Acquired Properties (based
on the Property-Level EBITDA from the date of acquisition through the end of
such period).”
““BBA
Newly Acquired Property”
means
as
of any
date of determination, each Real Property that fails to qualify as a BBA
Operating Property solely as a result of the applicable Consolidated Party’s
failure to have owned such Real Property for a period equal to or in excess
of
twelve (12) months pursuant to clause (i) of the definition of “BBA Operating
Property.””
““BBA
Newly Acquired Property Amount”
means,
as
of any
date of determination with respect to the BBA Newly Acquired Properties,
collectively, an amount equal to (a) the aggregate undepreciated book value
of
such BBA Newly Acquired Properties (as determined in accordance with GAAP;
provided, that such undepreciated book value shall be multiplied
by (b) (i) if such Real
Property is
owned
by a Wholly-Owned Subsidiary of the Borrower, one; or (ii) if such Real
Property is
owned
by a Consolidated Party that is not the Borrower or a Wholly-Owned Subsidiary
of
the Borrower, the Borrower Interest with respect to such Consolidated
Party).”
““BBA
Operating Property”
means,
as
of any date of determination, each Real Property (whether an interest in land
alone or an interest in land and/or (to the extent located on such land or
on
land subject to a Qualified Ground Lease) the improvements located thereon):
(a) that
either (i) is set forth on Schedule
5.01(n)
hereto
(as such schedule may be updated from time to time in accordance with
Section
7.02(b))
or (ii)
has been added by the Borrower
to the
calculation of the Borrowing Base during the then-continuing fiscal quarter,
in
each case to the extent that such Real Property has not been removed from the
calculation of the Borrowing Base during the then-continuing fiscal quarter;
(b) with
respect to which there exists a fully executed, delivered and effective
Borrowing Base Lease (which is, to the extent the Administrative Agent has
requested and reviewed same, in form and substance reasonably acceptable to
the
Administrative Agent; otherwise, the reasonable good faith judgment of the
Borrower
shall
govern such determination);
(c) that
is
either (i) 100% owned in fee simple by any Loan Party; (ii) majority owned
by a
Loan Party or (iii) leased by any Loan Party such that the applicable Real
Property qualifies as a Qualified Ground Lease Asset;
(d) with
respect to which neither such Real Property nor any interest of any applicable
Loan Party therein (including the lease thereof or any indirect interest owned
by the Loan Parties), is subject to (i) any Lien other than Permitted Liens
of
the types described in clauses (c), (d), (g), (j), and/or (k) of Section
8.01
or (ii)
any Negative Pledge;
(e) that
is
not (and, in the case of a Real Property constituting an interest in land alone,
the material improvements located thereon are not) the subject of any
condemnation proceeding(s) as of such date that is or are material to the
profitable operation of such Real Property and has not, since initial
qualification as a “BBA Operating Property” hereunder, been subject to any
condemnation that is material to the profitable operation of such Real Property;
(f) that
is
operated as (or, in the case of a Real Property constituting an interest in
land
alone, on which is operated) a restaurant, automobile service station or other
similar service retail property or has been otherwise expressly approved by
the
Administrative Agent in writing and in the Administrative Agent’s discretion;
(g) that
is
(and, in the case of a Real Property constituting an interest in land alone,
the
material improvements located thereon are) free of all structural defects,
environmental conditions or other adverse matters except for defects, conditions
or matters individually or collectively which are not material to the profitable
operation of such Real Property;
(h) that
is
located in the United States of America; and
(i) that
has
been owned by the applicable Consolidated Party for a period equal to or in
excess of twelve (12) months.”
““Borrower
Materials”
has
the
meaning specified in Section
7.02
hereof.”
““Borrowing
Base”
means,
as of any date of determination, an amount equal to (a) (i) fifty-five percent
(55.0%) multiplied
by (ii)
the Borrowing Base Asset Value as of such date, less
(b) the
BBE Guarantee Amount.”
““Borrowing
Base Asset”
means
each BBA Operating Property, each BBA Development Property, each BBA Newly
Acquired Property, in each case, to the extent included from time to time on
Schedule
5.01(n)
attached
hereto (and regardless of whether any such property is actually used in the
calculation of the Borrowing Base Asset Value or is removed from such
calculation pursuant to any of subclauses (i)-(vii) of the definition
thereof).”
““Borrowing
Base Asset Value”
means,
as of any given calculation date, an amount equal to the sum of (a) (i) BBA
EBITDA generated by the BBA Operating Properties for the most recent Calculation
Period; divided
by (ii)
the Capitalization Rate, plus
(b) the
BBA Development Property Amount as of such date, plus
(c) the
BBA Newly Acquired Property Amount as of such date; provided, however,
that:
(i) the
Borrowing Base Leases with respect to the Borrowing Base Assets contributing
to
the calculation of the Borrowing Base Asset Value:
(A) shall
not, in any case, have a weighted average remaining lease term of less than
six (6) years; to the extent the weighted average of the remaining lease
term(s) of the underlying leases with respect to the assets contributing to
the
Borrowing Base Asset Value (with each such lease’s term given a weighting in
relation to the other leases involved in such calculation based on the
contribution of each such lease to the Borrowing Base Asset Value) is less
than
six (6) years, Borrowing Base Assets with remaining lease terms of less
than six (6) years and their related Property-Level EBITDA shall be removed
from the calculation of Borrowing Base Asset Value until the weighted average
of
the remaining lease terms with respect to the assets contributing to such
calculation is equal to or greater than six (6) years; and
(B) shall
not, in any case, include leases with respect to which required base rental
payments, principal or interest payments, or other payments due thereunder
are,
as of the date of determination, more than sixty (60) days past due with
respect to payables greater than, in the aggregate, 0.125% of the total annual
base rent payable in connection with such Borrowing Base Leases; to the extent
Borrowing Base Assets with Borrowing Base Leases subject to late or delinquent
rental payments in excess of 0.125% would otherwise be included in the
calculation of the Borrowing Base Asset Value, Borrowing Base Assets with
delinquent rental payments shall be removed from the calculation of Borrowing
Base Asset Value until such excess is eliminated;
(ii) the
aggregate value of assets subject to Qualified Ground Leases shall not, in
any
case, exceed ten percent (10%) of Borrowing Base Asset Value; to the extent
the aggregate value of such assets constitutes more than ten percent (10%)
of Borrowing Base Asset Value, assets subject to Qualified Ground Leases and
their related values shall be removed from the calculation of the Borrowing
Base
Asset Value to the extent necessary to eliminate such excess;
(iii) the
aggregate value of assets with respect to any single Concept shall not, in
any
case, account for more than fifteen percent (15%) (or, in the case of the
Golden Corral Concept or any Approved Acquired Concept, twenty
percent (20%)) of the Borrowing Base Asset Value; to the extent the
aggregate value of such assets constitutes more than fifteen percent (15%)
(or, in the case of the Golden Corral Concept or any Approved Acquired Concept,
twenty percent (20%)) of Borrowing Base Asset Value, the value of assets
related to such Concept(s) shall be removed from the calculation of Borrowing
Base Asset Value to the extent necessary to eliminate such excess;
(iv) the
aggregate value of assets with respect to any single Tenant shall not, in any
case, account for more than ten percent (10%) (or, in the case of Golden
Corral Corp. or any Approved Acquired Tenant, fifteen percent (15%)) of the
Borrowing Base Asset Value; to the extent the aggregate value of such assets
constitutes more than more than ten percent (10%) (or, in the case of
Golden Corral Corp. or any Approved Acquired Tenant, fifteen percent (15%))
of Borrowing Base Asset Value, the value of assets related to such Tenant(s)
shall be removed from the calculation of Borrowing Base Asset Value to the
extent necessary to eliminate such excess;
(v) the
aggregate value of assets held by Borrowing Base Entities which are not
Wholly-Owned Subsidiaries shall not, in any case, exceed ten percent (10%)
of
Borrowing Base Asset Value; to the extent the aggregate value of such assets
constitutes more than ten percent (10%) of Borrowing Base Asset Value,
assets held by Borrowing Base Entities which are not Wholly-Owned Subsidiaries
shall be removed from the calculation of Borrowing Base Asset Value to the
extent necessary to eliminate such excess;
(vi) the
aggregate value attributable to assets which are BBA Development Properties
shall not, in any case, exceed ten percent (10%) of Borrowing Base Asset Value;
to the extent the aggregate value of such assets constitutes more than ten
percent (10%) of Borrowing Base Asset Value, BBA Development Properties
shall be removed from the calculation of Borrowing Base Asset Value to the
extent necessary to eliminate such excess; and
(vii) the
aggregate value attributable to assets which are BBA Development Properties
and
assets held by Borrowing Base Entities which are not Wholly-Owned Subsidiaries
shall not, in any case, exceed, in the aggregate, twenty percent (20.0%) of
Borrowing Base Asset Value; to the extent the aggregate value of such assets
constitutes more than twenty percent (20%) of Borrowing Base Asset Value,
BBA Development Properties and/or assets held by Borrowing Base Entities which
are not Wholly-Owned Subsidiaries shall be removed from the calculation of
Borrowing Base Asset Value to the extent necessary to eliminate such
excess.
For
purposes of clarification, (A) with respect to each of subclauses (i) through
(vii) above, individual Borrowing Base Assets and the values attributable to
any
given Borrowing Base Asset may not be partially
removed
from or included in the calculation of Borrowing Base Asset Value; to the extent
any given asset or any portion of the value attributable to any given Borrowing
Base Asset is required to be removed from the calculation of Borrowing Base
Asset Value, 100%
of the
value attributable to such Borrowing Base Asset shall be removed from such
calculation; and (B) the removal of any such assets or the value thereof from
the Borrowing Base Asset Value pursuant to subclauses (i) through (vii) above
may be performed in any order so long as the resultant components of the
Borrowing Base Asset Value meet all of the criteria set forth in such subclauses
(i) through (vii).”
““Borrowing
Base Lease”
means,
as of any date of determination, a lease (which may, in the case of a Qualified
Ground Lease Asset, technically be a sublease of the applicable Loan Party’s
Real Property interest) with respect to any parcel of Real Property satisfying
each of the following requirements (in the reasonable judgment of the
Administrative Agent, to the extent the Administrative Agent performs any review
of same, otherwise, in the reasonable good faith judgment of the Borrower):
(a) such
lease relates to the land and/or improvements located on such Real Property
and
covers 100.0% of such land and/or 100.0% of the net leasable space contained
in
such improvements, as applicable;
(b) such
lease is a triple net lease such that the Tenant thereunder is required to
pay
all taxes,
utilities, insurance, maintenance, casualty insurance payments and other
expenses with respect to the subject Real Property (whether in the form of
reimbursements or additional rent) in addition to the base rental payments
required thereunder such that net operating income for such Real Property
(before non-cash items) equals the base rent paid thereunder;
(c) neither
the Tenant under such lease nor any Person that is the franchisor or licensor
of
any Concept (if any) related to the underlying Real Property, is the subject
of
a Bankruptcy Event (except to the extent that (A)
such
Person has been subject to a proceeding under Chapter 11 of the Federal
Bankruptcy Code, (B) the applicable bankruptcy court has approved and confirmed
such Person’s plan for reorganization or, in the case of the bankruptcy of the
Tenant, the trustee in bankruptcy of such Tenant has accepted such lease, (C)
to
the extent item (B) above is satisfied as a result of the confirmation of a
plan
of reorganization, all statutory appeal periods with respect to such proposed
plan have been exhausted without objection and (D) such Person is performing
its
obligations under such approved plan);
(d) no
required
base rental payment, principal payment or interest payment due under such lease
is, as of the date of determination, more than sixty (60) days past due
with respect to payables greater than $5,000.00 per Real Property;
and
(e) the
leasable space associated with the underlying Real Property is fully occupied
in
all material respects by the applicable Tenant (or any sublessee of the
applicable Tenant, to the extent such Tenant remains fully obligated to the
applicable Loan Party under the related lease) (other than in connection with
scheduled renovations or improvements thereto or with a move-in process so
long
as all rent due under such lease continues to be paid during such
period).”
““Calculation
Period”
means,
as of any date of determination commencing with the delivery of the Required
Financial Information for the fiscal quarter ending June 30, 2006, the most
recent four (4) fiscal quarter period for which the Borrower has provided the
Required Financial Information; provided,
that
for calculations made on a Pro Forma Basis, the amounts calculated for the
applicable Calculation Period shall be adjusted as set forth in the definition
of the term “Pro Forma Basis,” but shall otherwise relate to the applicable
Calculation Period (as defined above).”
““Capitalization
Rate”
means
8.0%; provided, however, that the capitalization rate shall be reviewed annually
and be subject to annual adjustment (with such adjustment being made for each
year pursuant to written notice delivered by the Administrative Agent to the
Borrower
not less
than thirty (30) days prior to the next occurring anniversary of the First
Amendment Effective Date and to be effective as of the first Business Day
following such anniversary) by the Administrative Agent and the Required Lenders
in their sole discretion based upon market conditions for comparable property
types. Notwithstanding the foregoing, the capitalization rate shall not, in
any
case, be adjusted (a) by more than one half of one percent (0.50%) in connection
with any such annual adjustment and (b) up or down by more than one and one
half
of one percent (1.50%) during the term of this Agreement.”
““Concept”
means
any distinctive system for establishing and operating restaurants or automobile
service stations or other similar service retail property (or such other system
as has been approved by the Administrative Agent pursuant to subclause
(h)
of the
definition of “BBA Development Property” or subclause (f)
of the
definition of “BBA Operating Property”), which system is the subject of a
license or franchise from a Person. Not in limitation of the foregoing, and
by
way of example only, such systems would include “Xxxx in the Box,” “Golden
Corral,” “IHOP,” “Burger King,” “Pizza Hut,” “Denny’s,” and
“Fina.””
““Consolidated
EBITDA”
means,
for any Calculation Period, for the
Borrower and
its
Subsidiaries on a consolidated basis, an amount equal to:
(a) Consolidated
Net Income for such period; plus
(b) the
following to the extent deducted in calculating such Consolidated Net Income
(and without duplication): (i) Consolidated Interest Charges for such period;
(ii) the provision for Federal, state, local and foreign income taxes payable
by
the
Borrower and
its
Subsidiaries for such period; (iii) depreciation and amortization expense;
(iv)
losses from sales of assets; (v) reductions in Consolidated Net Income resulting
from straight-lining of rents; (vi) reductions in Consolidated Net Income
relating to “impairment of long lived assets” (including hedging losses); (vii)
reductions in Consolidated Net Income relating to “loan reserves”; (viii) any
amounts received relating to principal received from third party obligors in
the
form of principal repayment on mortgage obligations (to the extent such
principal payments are applied to the
Borrower’s
or any
of its Subsidiaries’ existing corporate Indebtedness); (ix) the principal
component of payments received in respect of Capitalized Lease Obligations
during such period; (x) reductions in Consolidated Net Income relating to
non-cash extraordinary items; (xi) payments
made with respect to Preferred Stock interests; and
(xii)
other non-recurring expenses of the
Borrower and
its
Subsidiaries reducing such Consolidated Net Income which do not represent a
cash
item in such period or any future period; and minus
(c) the
following to the extent included in calculating such Consolidated Net Income
(and without duplication): (i) Federal, state, local and foreign income tax
credits of the
Borrower and
its
Subsidiaries for such period; (ii) gains from sales of assets (other than
property sales from any real properties and/or improvements thereon acquired
with the initial intent to hold for sale); (iii) increases in Consolidated
Net
Income related to straight-lining of rents; and (iv) increases in Consolidated
Net Income related to non-cash extraordinary items;
provided,
that, (1) each of the above calculations shall include, without duplication,
any
amounts attributable to any interests held by any Consolidated Party in any
Unconsolidated Affiliate and (2) all amounts included in the above calculations
(and not otherwise adjusted to account for Outside Interests) shall be adjusted
to deduct therefrom the pro rata share of such amounts allocable to Outside
Interests.”
““Consolidated
Fixed Charges”
means,
for any Calculation Period, the sum of (in each case, without
duplication):
(a) (i)
all
scheduled payments of principal on Funded Indebtedness of the Consolidated
Parties on a consolidated basis due during such period (excluding so-called
“bullet maturities” or “balloon payments” and other principal payments upon
termination of Funded Indebtedness at the maturity thereof or upon prepayment
thereof), (ii) the implied principal component of payments due on Capital Leases
and Synthetic Lease Obligations, and (iii) all Debt-like Preferred Stock
Expenses incurred during such period in connection with all Debt-like Preferred
Stock of the Consolidated Parties and all other dividends paid during such
period on any Preferred Stock of the Consolidated Parties, plus
(b) (i)
all
scheduled payments of principal on Funded Indebtedness of each Unconsolidated
Affiliate multiplied by the respective Unconsolidated Affiliate Interest of
each
such entity (excluding so-called “bullet maturities” or “balloon payments” and
other principal payments upon termination of Funded Indebtedness at the maturity
thereof or upon prepayment thereof) and (ii) all Debt-like Preferred Stock
Expenses incurred during such period in connection with Debt-like Preferred
Stock of any Unconsolidated Affiliate and all other dividends paid on any
Preferred Stock of any Unconsolidated Affiliate during such period, in each
case
multiplied by the respective Unconsolidated Affiliate Interest of each such
entity; provided, that in each case, all of the above amounts not otherwise
adjusted to account for Outside Interests shall be adjusted to deduct therefrom
the pro rata share of such amounts allocable to the Outside Interests,
plus
(c) Consolidated
Interest Charges for such period.”
““Consolidated
Interest Charges”
means,
for any Calculation Period, the sum of (a) the interest expense in connection
with Funded Indebtedness of the Consolidated Parties on a consolidated basis,
as
determined in accordance with GAAP and all other interest obligations (or other
obligations that are substantially similar in nature to interest obligations)
incurred or accrued during such period, including, without limitation, (i)
the
amortization of debt discount and premium, (ii) the interest component under
Capital Leases, (iii) the implied interest component under Synthetic Lease
Obligations, (iv) obligation payments under any Swap Contracts entered into
by
any Consolidated Party (net of any obligation payments owing to any Consolidated
Party under any such Swap Contract and excluding any termination payments owing
by any Consolidated Party pursuant to any such Swap Contract), and (v)
capitalized interest, on a consolidated basis, as determined in accordance
with
GAAP, plus (b) without duplication, interest expense or other interest
obligations incurred in connection with Funded Indebtedness (including items
of
the type noted above in (a)(i)-(v)) of each Unconsolidated Affiliate multiplied
by the respective Unconsolidated Affiliate Interest of each such entity;
provided, that in each case, all of the above amounts not otherwise adjusted
to
account for Outside Interests shall be adjusted to deduct therefrom the pro
rata
share of such amounts allocable to the Outside Interests.”
““Consolidated
Total Debt”
means,
as of any date of determination, an amount equal to (a) Consolidated Total
Liabilities as of such date, less
(b) to
the extent included in the determination of Consolidated Total Liabilities
(and
without duplication), the sum of (i) normal accounts payables of the
Consolidated Parties, (ii) normal accounts payables of each Unconsolidated
Affiliate multiplied by the respective Unconsolidated Affiliate Interest of
each
such entity, (iii) trade payables of the Consolidated Parties incurred in the
ordinary course of business, (iv) trade payables of each Unconsolidated
Affiliate multiplied by the respective Unconsolidated Affiliate Interest of
each
such entity and (v) intangible liabilities to
the
extent FAS 141 requires treatment of the value of leases associated with
purchased real property as intangible assets.”
““Consolidated
Total Tangible Assets” means,
as
of any date of determination, the sum of:
(a) an
amount
equal to (i) the BBA Development Property Amount as of such date; plus
(ii) the
BBA Newly Acquired Property Amount as of such date; plus
(iii)
(A) Property-Level EBITDA generated by all other Real Properties for the most
recent Calculation Period, divided
by (B)
the Capitalization Rate (regardless of whether any such assets are actually
included in the calculation of Borrowing Base Asset Value); plus
(b) the
book
value of all other assets and interests therein held by the Consolidated Parties
(provided, that, the amounts calculated pursuant to clause (a)
above
(i) shall include, without duplication, each Consolidated Parties’ interests in
the assets of any Unconsolidated Affiliate and (ii) shall not include any
interests in assets to the extent such interests are attributable to any Outside
Interests); less
(c) the
value
of all intangible assets, if any, included in clauses (a)
and
(b)
above.”
““Development
Activities”
means
activities relating directly or indirectly to the development of build-to-suit
Real Property assets (whether or not related to Real Properties qualifying
as
“Development Properties” hereunder).”
““Development
Property”
means
a
Real Property that is a build-to-suit property with respect to which
construction of the applicable improvements to be located thereon has
commenced.”
““FAS
141”
Financial Accounting Standard 141 entitled “Business Combinations” adopted by
the Financial Accounting Standards Board, as the same may be amended, modified
or supplemented from time to time.”
““Fee
Letter”
means
a
reference to that certain Fee Letter, dated August 21, 2006 among the
Borrower, the Administrative Agent and the Sole Lead Arranger, as the same
may
be from time to time amended, restated, supplemented or otherwise modified
in
writing.”
““FFO”
means,
for a given period, (a) Consolidated Net Income, minus
(or
plus)
(b)
gains (or losses) from debt restructuring and sales of property during such
period (other than property sales from any properties acquired with the initial
intent to hold for sale), plus
(c)
depreciation and amortization of real and personal property assets for such
period, and after adjustments for unconsolidated partnerships and joint ventures
and amortization of capitalized financing costs, plus
(d)
impairment charges reported by such Persons for such period, plus
(e)
amounts denoted as provisions for loan losses, plus
(f)
goodwill impairment, plus
(g)
non-cash stock compensation, plus
(h) the
principal component of any Capital Lease Obligations (as determined by
GAAP).”
““FFO
Distribution Allowance”
means,
for each fiscal quarter of the Consolidated Parties, an amount equal to (a)
95%
of FFO for the immediately preceding fiscal quarter, plus
(b) to
the extent not otherwise distributed prior to commencement of the quarter for
which such calculation is being performed, 95% of FFO for the three fiscal
quarters immediately preceding the fiscal quarter referenced in clause (a).
In
determining whether an amount distributed in a given fiscal quarter is
applicable to the FFO of such fiscal quarter or a prior fiscal quarter, the
Borrower shall, in all cases, assume that amounts distributed are distributed
with respect to FFO earned in the most recent fiscal quarter for which there
exists undistributed FFO.”
““First
Amendment”
means
the First Amendment to Credit Agreement dated as of September 28, 2006 by
and among the Borrower, the Guarantors thereunder, Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender thereunder, the Lenders
thereunder and such other entities that are parties thereto.”
““First
Amendment Effective Date”
shall
have the meaning specified in the First Amendment.”
““Interest
Period”
means,
as to each Eurodollar Rate Loan, the period commencing on the date such
Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar
Rate Loan and ending, with respect to Eurodollar Revolving Loans, on the date
which is seven days or one, two, three, six, nine or twelve months thereafter,
or, with respect to Eurodollar Term Loans, on the date which is one, two, three,
six, nine or twelve months thereafter, in each case, as selected by the Borrower
in its Committed Loan Notice (and to the extent available from each Lender);
provided
that:
(i) any
Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business
Day
falls in another calendar month, in which case such Interest Period shall end
on
the next preceding Business Day;
(ii) any
Interest Period that begins on the last Business Day of a calendar month (or
on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(iii) no
Interest Period shall extend beyond the Revolver Maturity Date or Term Loan
Maturity Date, as applicable.”
““Internal
Control Event”
means
a
material weakness in, or fraud that involves management or other employees
who
have a significant role in, the Borrower’s internal controls over financial
reporting, in each case as described in the Securities Laws applicable to the
Borrower.”
““Letter
of Credit Expiration Date”
means,
subject to the Borrower’s rights under Section
2.03(g)
to
extend such date through Cash Collateralization of the applicable Letters of
Credit, the day that is thirty (30) days prior to the Revolver Maturity Date
then in effect (or, if such day is not a Business Day, the next preceding
Business Day); provided, that, notwithstanding anything contained herein to
the
contrary, the “Letter of Credit Expiration Date” with respect to any Letter of
Credit may not be extended beyond the date which is the day that is thirty
(30)
days prior to the Revolver Maturity Date then in effect (or, if such day is
not
a Business Day, the next preceding Business Day) except to the extent (a) such
Letter of Credit has been Cash Collateralized in accordance with Section
2.03(g);
(b)
such extension is for a period that does not extend beyond the date which is
twelve (12) months following the applicable Revolver Maturity Date; and (c)
the
L/C Issuer has approved such extension in writing (such approval not to be
unreasonably withheld or delayed).”
““Property-Level
EBITDA”
means,
for any Real Property for any period, an amount equal to (a) the net
income (excluding
extraordinary items) of
such
Real
Property for
such
period before (without
duplication) interest
expense applicable to such Real
Property,
income
taxes applicable to such Real
Property
and
depreciation and amortization applicable to such Real
Property,
all as
determined in accordance with GAAP, multiplied
by (b)
(i) if such Real
Property is
owned
by a Wholly-Owned Subsidiary of the Borrower, one; or (ii) if such Real
Property is
owned
by a Consolidated Party that is not the Borrower or a Wholly-Owned Subsidiary
of
the Borrower, the Borrower Interest with respect to such Consolidated Party;
provided,
that
interest expense, income taxes and other entity-level expenses shall be
allocated among all Real Properties owned by
the
applicable entity(ies) on a pro rata basis based on the percentage of each
such
Real Property’s revenue to the total revenue of all such Real
Properties.”
““Platform”
has
the
meaning specified in Section
7.02
hereof.”
““Public
Lender”
has
the
meaning specified in Section
7.02
hereof.”
““Registered
Public Accounting Firm”
has
the
meaning specified in Section 7.01(a)
hereof.”
““Responsible
Officer”
means
the chief executive officer, president, chief financial officer, chief
accounting officer, treasurer, assistant treasurer or controller of a Loan
Party
and, solely for purposes of notices given pursuant to Article
II,
any
other officer or employee of the applicable Loan Party so designated by any
of
the foregoing officers in a certificate delivered to the Administrative Agent
and signed by a Responsible Officer and the applicable designee. Any document
delivered hereunder that is signed by a Responsible Officer of a Loan Party
shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.”
““Xxxxxxxx-Xxxxx”
means
the Xxxxxxxx-Xxxxx Act of 2002, as amended, and any successor
statute.”
““Securities
Laws”
means
the Securities Act of 1933, the Securities Exchange Act of 1934, Xxxxxxxx-Xxxxx
and the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the Public
Borrower Accounting Oversight Board, as each of the foregoing may be amended
and
in effect on any applicable date hereunder.”
““Term
Loan Commitment”
means,
as to each Lender, its obligation to make its portion of the Term Loan to the
Borrower pursuant to Section 2.01(b)
or in
connection with Section
2.06(b),
in the
principal amount set forth opposite such Lender's name on Schedule 2.01
(as
adjusted from time to time in accordance with the terms of Section
1.07)
or as
committed by such Lender in connection with Section
2.06(b).
The
aggregate principal amount of the Term Loan Commitments of all of the Lenders
as
in effect on the First Amendment Effective Date is TWO HUNDRED SEVENTY-FIVE
MILLION DOLLARS ($275,000,000.00).”
(b) Section 2.02(a).
Section 2.02(a) of the Credit Agreement is hereby deleted in its entirety
and replaced by the following:
“(a) Each
Committed Borrowing, each conversion of Committed Loans from one Type to the
other, and each continuation of Eurodollar Rate Loans shall be made upon the
irrevocable notice from the Borrower to the Administrative Agent, which may
be
given by telephone or electronic mail (provided that such telephonic notice
or
electronic mail complies with the information requirements of the form of
Committed Loan Notice attached hereto). Each such notice must be received by
the
Administrative Agent not later than 11:00 a.m. (i) three (3) Business
Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurodollar Rate Loans, and (ii) on the requested date of
any Borrowing of Base Rate Loans; provided,
however,
all
Committed Borrowings made on the First Amendment Effective Date shall be made
as
Base Rate Loans unless the Borrower shall have delivered all items reasonably
requested by the Administrative Agent for the making of Eurodollar Rate Loans
at
least three (3) days prior to the First Amendment Effective Date. Each
telephonic notice by the Borrower pursuant to this Section 2.02(a)
must be
confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Each Borrowing of, conversion to or continuation of
Eurodollar Rate Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof. Except as provided in Sections 2.03(c)
and
2.04(c),
each
Borrowing of or conversion to Base Rate Loans shall be in a principal amount
of
$500,000 or a whole multiple of $100,000 in excess thereof. Each Committed
Loan
Notice (whether telephonic, electronic or hard-copy written) shall specify
(i) whether the Borrower is requesting a Committed Borrowing, a conversion
of Committed Loans from one Type to the other, or a continuation of Eurodollar
Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Committed Loans to be borrowed, converted or continued,
(iv) the Type of Committed Loans to be borrowed or to which existing
Committed Loans are to be converted, and (v) if applicable, the duration of
the Interest Period with respect thereto. If the Borrower fails to specify
a
Type of Committed Loan in a Committed Loan Notice or if the Borrower fails
to
give a timely notice requesting a conversion or continuation, then the
applicable Committed Loans shall be made as, or converted to, Base Rate Loans.
Any such automatic conversion of a Eurodollar Rate Loan to a Base Rate Loan
shall be effective as of the last day of the Interest Period then in effect
with
respect to such Eurodollar Rate Loan. If the Borrower requests a Borrowing
of,
conversion to, or continuation of Eurodollar Rate Loans in any such Committed
Loan Notice, but fails to specify an Interest Period, it will be deemed to
have
specified an Interest Period of one month.”
(c) Section 2.03(a)(ii).
Section 2.03(a)(ii) of the Credit Agreement is hereby deleted in its
entirety and replaced by the following:
“(ii) The
L/C
Issuer shall not issue any Letter of Credit if, subject
to Section
2.03(b)(iii), the
expiry date of such requested Letter of Credit would occur more than twelve
months after the date of issuance or
last
extension,
unless
the Required Lenders have approved such expiry date; or the
expiry date of such requested Letter of Credit would occur after the
then-effective Letter of Credit Expiration Date, unless either (A) such Letter
of Credit has been Cash Collateralized pursuant to Section
2.03(g)
and the
applicable Letter of Credit Expiration Date has been otherwise extended in
accordance with the definition of the term “Letter of Credit Expiration Date;”
or (B) the L/C Issuer and all the Lenders have approved such expiry
date.”
(d) Section 2.03(a)(iii)(B).
Section 2.03(a)(iii)(B) of the Credit Agreement is hereby deleted in its
entirety and replaced by the following:
“(B) the
issuance of such Letter of Credit would violate or one or more policies of
the
L/C Issuer applicable to letters of credit generally;”
(e) Section 2.03(b)(i).
Section 2.03(b)(i) of the Credit Agreement is hereby amended by adding the
following sentence at the end of such section:
“Notwithstanding
anything contained herein to the contrary, Letter of Credit Applications and
materials related thereto may be delivered by the Borrower via hard copy,
facsimile or electronic mail.”
(f) Section 2.03(b)(ii).
Section 2.03(b)(ii) of the Credit Agreement is hereby deleted in its
entirety and replaced by the following:
“(ii) Promptly
after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with the Administrative Agent (by telephone, electronic mail or in hard-copy
writing) that the Administrative Agent has received a copy of such Letter of
Credit Application from the Borrower and, if not, the L/C Issuer will provide
the Administrative Agent with a copy thereof. Unless the L/C Issuer has received
written notice from any Lender, the Administrative Agent or any Loan Party,
at
least one Business Day prior to the requested date of issuance or amendment
of
the applicable Letter of Credit, that one or more of the applicable conditions
contained in Article
V
shall
not then be satisfied, the L/C Issuer shall, on the requested date, issue a
Letter of Credit for the account of the Borrower (or the applicable Subsidiary)
or enter into the applicable amendment, as the case may be, in each case in
accordance with the L/C Issuer’s usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
the L/C Issuer a risk participation in such Letter of Credit in an amount equal
to the product of such Lender’s Applicable Percentage times
the
amount of such Letter of Credit.”
(g) Section 2.03(b)(iii).
Section 2.03(b)(iii) of the Credit Agreement is hereby deleted in its
entirety and replaced by the following:
“(iii) If
the
Borrower
so
requests in any applicable Letter of Credit Application, the L/C Issuer may,
in
its sole and absolute discretion, agree to issue a Letter of Credit that has
automatic extension provisions (each, an “Auto-Extension
Letter of Credit”);
provided
that any
such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent
any
such extension at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the “Non-Extension
Notice Date”)
in
each such twelve-month period to be agreed upon at the time such Letter of
Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower
shall
not be required to make a specific request to the L/C Issuer for any such
extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders
shall be deemed to have authorized (but may not require) the L/C Issuer to
permit the extension of such Letter of Credit at any time to an expiry date
not
later than the Letter of Credit Expiration Date; provided,
however,
that
the L/C Issuer shall not permit
any such extension if (A) the L/C Issuer has determined that it would not be
permitted, or would have no obligation at such time to issue such Letter of
Credit in its revised form under the terms hereof (by reason of the provisions
of clause (ii) or (iii) of Section
2.03(a)
or
otherwise), or (B) it has received notice (which may be by telephone, electronic
mail or in hard-copy writing) on or before the day that is five Business Days
before the Non-Extension Notice Date (1) from the Administrative Agent that
the
Required Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or any Loan Party that one or more of the
applicable conditions specified in Section
5.02
is not
then satisfied, and in each case directing the L/C Issuer not to permit such
extension.”
(h) Section 2.03(c)(i).
The
last sentence of Section 2.03(c)(i) of the Credit Agreement is hereby
deleted in its entirety and replaced by the following:
“Any
notice given by the L/C Issuer or the Administrative Agent pursuant to this
Section 2.03(c)(i)
may be
given by telephone if immediately confirmed in writing or by electronic mail;
provided
that the
lack of such an immediate confirmation shall not affect the conclusiveness
or
binding effect of such notice.”
(i) Section 2.03(c)(vi).
Section 2.03(c)(vi) of the Credit Agreement is hereby deleted in its
entirety and replaced by the following:
“(vi) If
any
Lender fails to make available to the Administrative Agent for the account
of
the L/C Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.03(c)
by the
time specified in Section 2.03(c)(ii),
the L/C
Issuer shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the L/C Issuer at a rate per annum equal to the
Federal Funds Rate from time to time in effect, plus any administrative,
processing or similar fees customarily charged by the L/C Issuer in connection
with the foregoing. A certificate of the L/C Issuer submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under
this
clause (vi)
shall be
conclusive absent manifest error.”
(j) Section 2.04(b).
Section 2.04(b) of the Credit Agreement is hereby deleted in its entirety
and replaced by the following:
“(b) Borrowing
Procedures.
Each
Swing Line Borrowing shall be made upon the Borrower’s irrevocable notice to the
Swing Line Lender and the Administrative Agent, which may be given by telephone
or electronic mail. Each such notice must be received by the Swing Line Lender
and the Administrative Agent not later than 2:00 p.m. on the requested borrowing
date, and shall specify (i) the amount to be borrowed, which shall be a minimum
of $100,000 and (ii) the requested borrowing date, which shall be a Business
Day. Each such telephonic notice must be confirmed promptly by delivery to
the
Swing Line Lender and the Administrative Agent of a written Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Promptly after receipt by the Swing Line Lender of any telephonic
Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone, electronic mail or in hard-copy writing)
that the Administrative Agent has also received such Swing Line Loan Notice
and,
if not, the Swing Line Lender will notify the Administrative Agent (by
telephone,
electronic mail or in hard-copy writing)
of the
contents thereof. Unless the Swing Line Lender has received notice (by
telephone,
electronic mail or in hard-copy writing)
from
the Administrative Agent (including at the request of any Lender) prior to
2:30
p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing
Line Lender not to make such Swing Line Loan as a result of the limitations
set
forth in the proviso to the first sentence of Section
2.04(a),
or (B)
that one or more of the applicable conditions specified in Article
V
is not
then satisfied, then, subject to the terms and conditions hereof, the Swing
Line
Lender will, not later than 3:00 p.m. on the borrowing date specified in such
Swing Line Loan Notice, make the amount of its Swing Line Loan available to
the
Borrower in immediately available funds.”
(k) Section 2.04(c)(i).
The
second sentence of Section 2.04(c)(i) of the Credit Agreement is hereby
deleted in its entirety and replaced by the following:
“Such
request shall be made in writing (which written request shall be deemed to
be a
Committed Loan Notice for purposes hereof) and in accordance with the
requirements of Section
2.02,
without
regard to the minimum and multiples specified therein for the principal amount
of Base Rate Loans, but subject to the unutilized portion of the Aggregate
Revolving Commitments and the conditions set forth in Section
5.02.”
(l) Section 2.04(c)(iii).
Section 2.04(c)(iii) of the Credit Agreement is hereby deleted in its
entirety and replaced by the following:
“(iii) If
any
Lender fails to make available to the Administrative Agent for the account
of
the Swing Line Lender any amount required to be paid by such Lender pursuant
to
the foregoing provisions of this Section
2.04(c)
by the
time specified in Section
2.04(c)(i),
the
Swing Line Lender shall be entitled to recover from such Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for
the
period from the date such payment is required to the date on which such payment
is immediately available to the Swing Line Lender at a rate per annum equal
to
the greater of the Federal Funds Rate and a rate determined by the Swing Line
Lender in accordance with banking industry rules on interbank compensation,
plus
any administrative, processing or similar fees customarily charged by the Swing
Line Lender in connection with the foregoing. A certificate of the Swing Line
Lender submitted to any Lender (through the Administrative Agent) with respect
to any amounts owing under this clause (iii) shall be conclusive absent manifest
error.”
(m) Section 2.05(a)(iii).
Section 2.05(a) of the Credit Agreement is hereby amended by adding the
following at the end of such section:
“(iii) All
notices required by this clause (a) may be delivered by electronic
mail, facsimile or in hard-copy writing.”
(n) Section 2.06(b).
(i) The
first
paragraph of Section 2.06(b) of the Credit Agreement is hereby deleted in
its entirety and replaced by the following:
“(b) Voluntary
Increases.
Following
the First Amendment Effective Date, the Aggregate Revolving Commitments and/or
the Total TL Outstandings may, at the option of the Borrower, be increased
by an
aggregate amount of up to $200,000,000 (with the total amount of such increases
(to the extent less than $200,000,000) and the requested allocation of such
increases between the Aggregate Revolving Commitments and/or the Total TL
Outstandings to be at the option of the Borrower (provided, that increases
to
either of the Aggregate Revolving Commitments or the Total TL Outstandings
shall
be in an
aggregate amount of $25,000,000 or any whole multiple of $5,000,000 in excess
thereof))
if:”
(ii) Section 2.06(b)(i)
of the Credit Agreement is hereby deleted in its entirety and replaced by the
following:
“(i) to
the
extent it desires to increase one or both of the Aggregate Revolving Commitments
or the Total TL Outstandings, the Borrower shall request such increase(s) in
writing to the Administrative Agent and shall specify therein the amount(s)
of
its requested increase(s) and allocation thereof between the Aggregate Revolving
Commitments and/or the Total TL Outstandings;”
(iii) The
penultimate paragraph of Section 2.06(b) of the Credit Agreement is hereby
deleted in its entirety and replaced by the following:
“Notwithstanding
anything contained herein to the contrary, the Borrower may make a request
for
increase (whether with respect to the Aggregate Revolving Commitments, the
Total
TL Outstandings or both) pursuant to this Section
2.06(b)
not more
than four (4) times during the term of the Agreement.”
(o) Section 2.06(c).
Section 2.06(c) of the Credit Agreement is hereby amended by adding the
following at the end of such section:
“All
notices deliverable pursuant to this Section
2.06
may be
delivered by electronic
mail, facsimile or in hard-copy writing.”
(p) Section 2.07(c).
Section 2.07(c) of the Credit Agreement is hereby deleted in its entirety
and replaced by the following:
“(c) Swing
Line Loans.
The
Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the
demand of the Swing Line Lender, (ii) the date that is three (3) Business Days
after such Loan is made and (iii) the Revolver Maturity Date.”
(q) Section 2.09(a).
Section 2.09(a) of the Credit Agreement is hereby deleted in its entirety
and replaced by the following:
“(a) Unused
Fees.
The
Borrower shall, for each calendar quarter (or portion thereof) ending during
the
term commencing as of the First Amendment Effective Date and ending as of the
last day of the Availability Period, pay to the Administrative Agent for the
account of each Lender holding a Revolving Commitment as of the end of such
period (in accordance with such Lender’s Applicable Percentage of the Aggregate
Revolving Commitments as of such date) an unused fee (the “Unused
Fee”)
in an
amount equal to (i) a rate equal to 20 basis points per annum (calculated based
on the total number of days in the applicable period), multiplied
by (ii)
(A) an amount equal to (1) the sum of the Aggregate Revolving Commitments as
of
the beginning of each day during the applicable period, less
(2) the
sum of the Total Revolving Outstandings as of the beginning of each day during
such period, divided
by (B)
the number of days in such period. The unused fee shall accrue at all times
during the term of this Agreement for which there exist any Revolving
Commitments, including at any time during which one or more of the conditions
in
Article V
is not
met, and shall be due and payable quarterly in arrears on the last Business
Day
of each March, June, September and December, commencing with the first such
date
to occur after the First Amendment Effective Date, and on the last day of the
Availability Period.”
(r) Section 2.12(b)(i).
Section 2.12(b)(i) of the Credit Agreement is hereby deleted in its
entirety and replaced by the following:
“(b) (i)
Funding
by Lenders; Presumption by Administrative Agent.
Unless
the Administrative Agent shall have received notice from a Lender prior to
the
proposed date of any Committed Borrowing that such Lender will not make
available to the Administrative Agent such Lender’s share of such Committed
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section
2.02
and may,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Committed Borrowing available to the Administrative Agent, then
the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount in immediately available
funds with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment
to
the Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily
charged by the Administrative Agent in connection with the foregoing and (B)
in
the case of a payment to be made by the Borrower, the interest rate applicable
to Base Rate Revolving Loans. If the Borrower and such Lender shall pay such
interest to the Administrative Agent for the same or an overlapping period,
the
Administrative Agent shall promptly remit to the Borrower the amount of such
interest paid by the Borrower for such period. If such Lender pays its share
of
the applicable Committed Borrowing to the Administrative Agent, then the amount
so paid shall constitute such Lender’s Loan included in such Committed
Borrowing. Any payment by the Borrower shall be without prejudice to any claim
the Borrower may have against a Lender that shall have failed to make such
payment to the Administrative Agent.”
(s) Section 6.05(e).
Section 6.05 of the Credit Agreement is hereby amended by adding the
following at the end of such section:
“(e) To
the
best knowledge of the Borrower, no Internal Control Event exists or has occurred
since the date of the Audited Financial Statements that has resulted in or
could
reasonably be expected to result in a misstatement in any material respect,
in
any financial information delivered or to be delivered to the Administrative
Agent or the Lenders, of (i) covenant compliance calculations provided hereunder
or (ii) the assets, liabilities, financial condition or results of operations
of
the Borrower and its Subsidiaries on a consolidated basis.”
(t) Section 6.27.
Article VI of the Credit Agreement is hereby amended by adding the
following at the end of such article:
“6.27 Taxpayer
Identification Number.
The
true
and correct U.S. taxpayer identification number of the Borrower and each other
Loan Party is set forth on Schedule
6.27
(as of
the most recent update thereof in accordance with Section
7.02(d)
or as
otherwise updated as of the date any Person becomes a Loan Party
hereunder).”
(u) Section 7.01.
Section 7.01 of the Credit Agreement is hereby deleted in its entirety and
replaced by the following:
“7.01 Financial
Statements.
Deliver
to the Administrative Agent, in form and detail reasonably satisfactory to
the
Administrative Agent:
(a) as
soon
as available, but in any event within ninety (90) days after the end of each
fiscal year of the Borrower (commencing with the fiscal year ended December
31,
2006), a consolidated balance sheet of the Consolidated Parties as at the end
of
such fiscal year, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal
year,
all in reasonable detail and prepared in accordance with GAAP, such consolidated
statements to be audited and accompanied by (i) a report and opinion of an
independent certified public accountant of nationally recognized standing
reasonably acceptable to the Required Lenders (a “Registered
Public Accounting Firm”),
which
report and opinion shall be prepared in accordance with generally accepted
auditing standards and applicable Securities Laws and shall not be subject
to
any “going concern” or like qualification or exception or any qualification or
exception as to the scope of such audit (provided, that to the extent any
components of such consolidated financial statements relating to a prior fiscal
period are separately audited by different Registered Public Accounting Firms,
the audit report of any such Registered Public Accounting Firm delivered
pursuant hereto may contain qualifications or exceptions as to scope of such
consolidated financial statements as they relate to such components audited
by
other Registered Public Accounting Firms) and (ii) an opinion of such Registered
Public Accounting Firm independently assessing the Borrower’s internal controls
over financial reporting in accordance with, and to the extent required by,
Xxxxxxxx-Xxxxx and for so long as Xxxxxxxx-Xxxxx is in effect; and
(b) as
soon
as available, but in any event within forty-five (45) days after the end of
each
of the first three fiscal quarters of each fiscal year of the Borrower
(commencing with the fiscal quarter ended September 30, 2006), a consolidated
balance sheet of the Consolidated Parties as at the end of such fiscal quarter,
and the related consolidated statements of income or operations, shareholders’
equity and cash flows for such fiscal quarter and for the portion of the fiscal
year then ended, setting forth in each case in comparative form the figures
for
the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail,
such consolidated statements to be certified by a Responsible Officer of the
Borrower as fairly presenting the financial condition, results of operations,
shareholders’ equity and cash flows of the Consolidated Parties in accordance
with GAAP, subject only to normal year-end audit adjustments and the absence
of
footnotes.
As
to any
information contained in materials furnished pursuant to Section
7.02(g),
the
Borrower shall not be separately required to furnish such information under
clause (a) or (b) above, but the foregoing shall not be in derogation of the
obligation of the Borrower to furnish the information and materials described
in
clauses (a) and (b) above at the times specified therein.”
(v) Section 7.02(b).
Section 7.02(b) of the Credit Agreement is hereby deleted in its entirety
and replaced by the following:
“(b) concurrently
with the delivery of the financial statements referred to in Sections 7.01(a)
and
(b),
a duly
completed Compliance Certificate signed by a Responsible Officer of the Borrower
(including an update to Schedule
5.01(n)
and
Schedule
6.27);”
(w) Section 7.03(f).
Section 7.03 of the Credit Agreement is hereby amended by adding the
following at the end of such section:
“(f) Promptly
upon any Responsible Officer obtaining knowledge thereof notify the
Administrative Agent of the determination by the Registered Public Accounting
Firm providing the opinion required under Section
7.01(a)(ii)
(in
connection with its preparation of such opinion) or the Borrower’s determination
at any time of the occurrence or existence of any Internal Control
Event.”
(x) Section 8.02(l).
Section 8.02(l) of the Credit Agreement is hereby deleted in its entirety
and replaced by the following:
“(l) Investments
constituting the acquisition of Real Property or mortgages secured by real
property (including leasehold) interests, in each case, in the ordinary course
of business; provided, that (i) any such Investments shall be with respect
to
Real Property or real estate located in the United States of America except
to
the extent approved by the Administrative Agent in writing (such approval to
be
granted or withheld in the reasonable discretion of the Administrative Agent)
and (ii) Investments in Real Properties constituting Development Properties
shall be subject to the limitations set forth in clause (h) above;”
(y) Section 8.03(n).
Section 8.03(n) of the Credit Agreement is hereby deleted in its entirety
and replaced by the following:
“(n) secured
purchase money Indebtedness (including Capitalized Leases) that is Non-Recourse
Indebtedness (other than with respect to recourse to the asset being financed
with such purchase money Indebtedness) incurred by any Loan Party if such
Indebtedness does not exceed the lower of the fair market value or the cost
of
the applicable assets on the date acquired;”
(z) Proviso
at the end of Section 8.03.
The
proviso at the end of Section 8.03 of the Credit Agreement is hereby
deleted in its entirety and replaced by the following:
“provided,
however,
that
notwithstanding the foregoing, the Borrowing Base Entities shall not, at any
time, incur or otherwise be liable for any Indebtedness (whether Secured
Indebtedness or Unsecured Indebtedness) other than (x) Indebtedness of the
type
permitted under clause (g) above incurred by any such Borrowing Base Entity
in
its capacity as an Originator, servicer or guarantor in connection with any
Permitted Securitization Transfer or Securitization Transaction Documents;
(y)
Indebtedness hereunder and under the other Loan Documents, and (z) Indebtedness
secured by Permitted Liens of the type described in clauses (c), (d), (g),
(j),
(k) and/or (o)(ii) of Section
8.01.”
(aa) Section 8.05(a)(ii).
Section 8.05(a)(ii) of the Credit Agreement is hereby deleted in its
entirety and replaced by the following:
“(ii) Intentionally
Omitted.”
(bb) Section 8.11(a).
Section 8.11(a) of the Credit Agreement is hereby deleted in its entirety
and replaced by the following:
“(a) Consolidated
Leverage Ratio.
Permit
the Consolidated Leverage Ratio as of the end of any Calculation Period to
be
greater than 0.65x.”
(cc) Section 8.11(b).
Section 8.11(b) of the Credit Agreement is hereby deleted in its entirety
and replaced by the following:
“(b) Consolidated
Tangible Net Worth.
Permit
Consolidated Tangible Net Worth as of the end of any Calculation Period to
be
less than the
sum
of (i) $750,000,000, plus (ii) an
amount
equal to 85% of the Net Proceeds of any Equity Issuance(s) by the Consolidated
Parties issued after the First Amendment Effective Date and prior to the end
of
such period (other than any such Net Proceeds received from a Consolidated
Party).”
(dd) Section 8.11(c).
Section 8.11(c) of the Credit Agreement is hereby deleted in its entirety
and replaced by the following:
“(c) Consolidated
Fixed Charge Coverage Ratio.
Permit
the Consolidated Fixed Charge Coverage Ratio for any Calculation Period to
be
less than: (i) for each Calculation Period ending on or prior to March 31,
2008,
1.20x; and (ii) for each other Calculation Period, 1.30x.”
(ee) Section 8.11(d).
Section 8.11(d) of the Credit Agreement is hereby deleted in its entirety
and replaced by the following:
“(d) Secured
Debt to Consolidated Total Tangible Assets Ratio.
Permit,
as of the end of any Calculation Period, the ratio of the Secured Indebtedness
of the Consolidated Parties to Consolidated Total Tangible Assets to be greater
than 0.45x.”
(ff) Section 11.02(e).
Section 11.02 of the Credit Agreement is hereby amended by adding the
following at the end of such section:
“(e) The
Platform.
THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED
BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS
OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN
OR
OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM
VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH
THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent
or any of its Related Parties (collectively, the “Agent
Parties”)
have
any liability to the Borrower, any Lender, the L/C Issuer or any other Person
for losses, claims, damages, liabilities or expenses of any kind (whether in
tort, contract or otherwise) arising out of the Borrower’s or the Administrative
Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined
by a court of competent jurisdiction by a final and nonappealable judgment
to
have resulted from the gross negligence or willful misconduct of such Agent
Party; provided,
however,
that in
no event shall any Agent Party have any liability to the Borrower, any Lender,
the L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual
damages).”
(gg) Section 11.18.
Article XI of the Credit Agreement is hereby amended by adding the
following at the end of such article:
“11.18 No
Advisory or Fiduciary Responsibility.
In
connection with all aspects of each transaction contemplated hereby, the
Borrower and each other Loan Party acknowledges and agrees, and acknowledges
its
Affiliates’ understanding, that: (i) the credit facilities provided for
hereunder and any related arranging or other services in connection therewith
(including in connection with any amendment, waiver or other modification hereof
or of any other Loan Document) are an arm’s-length commercial transaction
between the Borrower, each other Loan Party and their respective Affiliates,
on
the one hand, and the Administrative Agent and the Arranger, on the other hand,
and the Borrower and each other Loan Party is capable of evaluating and
understanding and understands and accepts the terms, risks and conditions of
the
transactions contemplated hereby and by the other Loan Documents (including
any
amendment, waiver or other modification hereof or thereof); (ii) in connection
with the process leading to such transaction, the Administrative Agent and
the
Arranger each is and has been acting solely as a principal and is not the
financial advisor, agent or fiduciary, for the Borrower, any other Loan Party
or
any of their respective Affiliates, stockholders, creditors or employees or
any
other Person; (iii) neither the Administrative Agent nor the Arranger has
assumed or will assume an advisory, agency or fiduciary responsibility in favor
of the Borrower or any other Loan Party with respect to any of the transactions
contemplated hereby or the process leading thereto, including with respect
to
any amendment, waiver or other modification hereof or of any other Loan Document
(irrespective of whether the Administrative Agent or the Arranger has advised
or
is currently advising the Borrower, any other Loan Party or any of their
respective Affiliates on other matters) and neither the Administrative Agent
nor
the Arranger has any obligation to the Borrower, any other Loan Party or any
of
their respective Affiliates with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Loan
Documents; (iv) the Administrative Agent and the Arranger and their respective
Affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Borrower, the other Loan Parties and
their respective Affiliates, and neither the Administrative Agent nor the
Arranger has any obligation to disclose any of such interests by virtue of
any
advisory, agency or fiduciary relationship; and (v) the Administrative Agent
and
the Arranger have not provided and will not provide any legal, accounting,
regulatory or tax advice with respect to any of the transactions contemplated
hereby (including any amendment, waiver or other modification hereof or of
any
other Loan Document) and each of the Borrower and the other Loan Parties has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate. Each of the Borrower and the other Loan Parties
hereby waives and releases, to the fullest extent permitted by law, any claims
that it may have against the Administrative Agent and the Arranger with respect
to any breach or alleged breach of agency or fiduciary duty.”
(hh) Section 11.19.
Article XI of the Credit Agreement is hereby amended by adding the
following at the end of such article:
“11.19 New
Schedule 6.27.
The
Borrower shall prepare Schedule
6.27
for
inclusion in the Credit Agreement and shall deliver the same to the
Administrative Agent prior to the First Amendment Effective Date. Such
Schedule 6.27
shall be
in the form attached to the First Amendment as Exhibit
A.
Upon
acceptance of such Schedule 6.27
by the
Administrative Agent, such schedule shall be included in the Credit
Agreement.
2. Conditions
Precedent.
The
effectiveness of this First Amendment is subject to receipt by the
Administrative Agent of each of the following, each in form and substance
reasonably satisfactory to the Administrative Agent:
(a) a
counterpart of this First Amendment duly executed by each of the Borrower,
the Guarantors, the Required Lenders and the Administrative Agent;
provided, notwithstanding the foregoing, the amendment to the definition of
“Applicable Margin” (referenced in Section 1 of this First Amendment) shall
not be effective unless and until this First Amendment is executed by each
of
the Borrower,
the Guarantors, each of the Lenders holding Revolving Loans and the
Administrative Agent;
(b) such
certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the
Administrative Agent may reasonably require evidencing the identity, authority
and capacity of each Responsible Officer thereof authorized to act as a
Responsible
Officer
in connection with this First Amendment and the other Loan Documents to which
such Loan Party is a party;
(c) The
Administrative Agent shall have received a duly completed Compliance Certificate
as of the First
Amendment Effective
Date
prepared on a Pro Forma Basis and based on information obtained as of
June 30, 2006, signed by a Responsible Officer of the Borrower,
giving
effect, on a Pro Forma Basis, to all material Acquisitions, Dispositions, Debt
Issuances and/or Equity Issuances which may have occurred prior to the First
Amendment Effective Date;
(d) a
legal
opinion
of Sidley Austin LLP, counsel
for the Loan Parties;
(e) payment
by Borrower of (i) any fees required by the Fee Letter, (ii) all other
reasonable outstanding fees and expenses of the Administrative Agent and the
Administrative Agent’s counsel incurred in connection with the preparation of
this First Amendment which are due and payable as of the date hereof, (iii)
all
other
reasonable fees and expenses relating to the preparation, execution and delivery
of this First Amendment or otherwise related to the Credit Agreement or the
Loan
Documents which are due and payable as of the date hereof, including, without
limitation, payment to the Administrative
Agent
of
reasonable attorneys’ fees, consultants’ fees, travel expenses, all fees and
expenses associated with prior transactions entered into or contemplated by
and
between Borrower and the Administrative
Agent
in
connection with the Credit Agreement and (iv) all other reasonable fees and
expenses due and then-owing from the Borrower to the Administrative
Agent
and
Lenders pursuant to the terms hereof, the terms of the Credit Agreement and
the
terms of the other Loan Documents, in the case of each of clauses (i), (ii),
(iii) and (iv) as shall have been set forth in one or more invoices therefore
delivered to the Borrower prior to the closing with respect to this First
Amendment; and
(f) such
other documents, instruments and agreements as the Administrative Agent may
reasonably request.
3. Representations.
The
Borrower and each of the Guarantors collectively represent and warrant to the
Administrative Agent and the Lenders as follows:
(a) Authorization.
The
Borrower and
each
of the Guarantors, respectively,
has the
right and power and has obtained all authorizations necessary to execute and
deliver this First Amendment and to perform its respective obligations hereunder
and under the Credit Agreement, as amended by this First Amendment, in
accordance with their respective terms. This First Amendment has been duly
executed and delivered by a duly authorized officer of the Borrower and each
Guarantor, respectively, and each of this First Amendment and the Credit
Agreement, as amended by this First Amendment, is a legal, valid and binding
obligation of the Borrower and each Guarantor (each as applicable), enforceable
against the Borrower and each Guarantor (each as applicable) in accordance
with
its respective terms, except as the same may be limited by applicable Debtor
Relief Laws and by equitable principles generally (whether enforcement is sought
by proceedings in equity or at law).
(b) Compliance
with Laws, etc.
The
execution and delivery by the Borrower and each of the Guarantors of this First
Amendment and the performance by the Borrower and/or the Guarantors of this
First Amendment and the Credit Agreement, as amended by this First Amendment,
in
accordance with their respective terms, does not and will not, by the passage
of
time, the giving of notice or otherwise: (i) require any approval (other than
those already obtained) by any Governmental Authority or violate any law
(including any Environmental Laws) which is applicable to the Borrower, any
Guarantors, the Loan Documents or the transactions contemplated herein or
therein; (ii) conflict with, result in a breach of or constitute a default
under
the Organization Documents of the Borrower or any of the Guarantors or any
Material Contractual Obligation to which the Borrower or any of the Guarantors
or is a party or by which it or any of its respective properties may be bound;
or (iii) result in or require the creation or imposition of any Lien under
any
Material Contractual Obligation upon or with respect to any property now owned
or hereafter acquired by the Borrower or any Guarantor other than in favor
of
the Administrative Agent for the benefit of the Lenders.
(c) No
Default.
No
Default or Event of Default has occurred and is continuing as of the date hereof
nor will exist immediately after giving effect to this First
Amendment.
4. Reaffirmation
of Representations.
The
Borrower and each of the Guarantors hereby repeat and reaffirm in all material
respects all representations and warranties made by such party to the
Administrative Agent and the Lenders in the Credit Agreement and the other
Loan
Documents to which it is a party on and as of the date hereof (other than any
representation or warranty expressly relating to an earlier date) with the
same
force and effect as if such representations and warranties were set forth in
this First Amendment in full except to the extent of changes resulting from
matters permitted under the Loan Documents or other changes in the ordinary
course of business not having a Material Adverse Effect.
5. Reaffirmation
of Guaranty.
Each of
the Guarantors hereby reaffirms its continuing guaranty obligations to the
Administrative Agent and the Lenders under the Credit Agreement and agrees
that
the transactions contemplated by this First Amendment shall not in any way
affect the validity and enforceability of their respective guaranty obligations
thereunder or reduce, impair or discharge the obligations of such Guarantors
thereunder.
6. Severability.
If any
provision of any of this First Amendment or of the Credit Agreement, as amended
hereby, is determined to be illegal, invalid or unenforceable, such provision
shall be fully severable and the remaining provisions shall remain in full
force
and effect and shall be construed without giving effect to the illegal, invalid
or unenforceable provisions.
7. Certain
References.
Each
reference to the Credit Agreement in any of the Loan Documents shall be deemed
to be a reference to the Credit Agreement as amended by this First Amendment,
and this First Amendment shall be deemed a Loan Document for purposes of the
application of provisions of the Credit Agreement generally applicable thereto
(including, without limitation, any arbitration provisions or waiver
provisions).
8. Expenses.
The
Borrower shall reimburse the Administrative Agent promptly following demand
for
all reasonable costs and expenses (including reasonable attorneys’ fees and
expenses) incurred by the Administrative Agent in connection with the
preparation, negotiation and execution of this First Amendment and the other
agreements and documents executed and delivered in connection
herewith.
9. Benefits.
This
First Amendment shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns.
10. No
Novation.
The
parties hereto intend this First Amendment to evidence the amendments to the
terms of the existing indebtedness of the Borrower and Guarantors to the Lenders
as specifically set forth herein and do not
intend
for such amendments to constitute a novation in any manner
whatsoever.
11. GOVERNING
LAW.
THIS
FIRST AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS
OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
12. No
Implied Agreements.
Except
as
expressly herein amended, the terms and conditions of the Credit Agreement
and
the other Loan Documents remain in full force and effect. The amendments
contained herein shall be deemed to have prospective application only, unless
otherwise specifically stated herein.
13. Counterparts. This
First Amendment may be executed in any number of counterparts, each of which
when so executed and delivered shall be an original, but all of which shall
constitute one and the same instrument. It shall not be necessary in making
proof of this First Amendment to produce or account for more than one such
counterpart for each of the parties hereto. Delivery by facsimile by any of
the
parties hereto of an executed counterpart of this First Amendment shall be
as
effective as an original executed counterpart hereof and shall be deemed a
representation that an original executed counterpart hereof will be delivered.
Each
counterpart hereof shall be deemed to be an original and shall be binding upon
all parties, their successors and assigns.
14. Binding
Effect.
This
First Amendment shall become effective as of the date set forth in the
introductory paragraph hereof (the “First
Amendment Effective Date”)
at
such time when: (a) all of the conditions set forth in Section 2 hereof have
been satisfied or waived by the Required Lenders; (b) this First Amendment
shall
have been executed by the Borrower, the Guarantors and the Administrative Agent;
and (c) the Administrative Agent shall have received copies hereof (telefaxed
or
otherwise) which, when taken together, bear the signatures of the Required
Lenders. Thereafter, this First Amendment shall be binding upon and inure to
the
benefit of the Borrower, the Guarantors, the Administrative Agent and each
Lender and their respective successors and assigns.
15. Definitions.
All
capitalized terms not otherwise defined herein are used herein with the
respective definitions given them in the Credit Agreement, as amended hereby.
The interpretive provisions set forth in Sections
1.02
and
1.03
of the
Credit Agreement shall apply to this First Amendment as though set forth
herein.
[Remainder
of Page Left Intentionally Blank - Signature Pages Follow]
CHAR1\909716v6
IN
WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
First Amendment to be duly executed and delivered as of the date written
above.
|
BORROWER:
|
TRUSTREET
PROPERTIES, INC.
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxx
Title: Secretary
|
|
GUARANTORS:
|
CFD
HOLDINGS II, LLC
By: RESTAURANT
ASSETS, LLC,
as Member
By: CNL
FINANCIAL LP HOLDING, LP,
as Member
By: CNL
FINANCIAL GP HOLDING CORP.,
as General Partner
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxx
Title: Secretary
|
|
CNL
APF GP CORP.
By:
/s/
Xxxxxxxx X. Xxxxx
Name:
Xxxxxxxx
X. Xxxxx
Title: Senior
Vice President
|
|
|
CNL
APF PARTNERS, L.P.
By: CNL
APF GP CORP.,
as General Partner
By:
/s/
Xxxxxxxx X. Xxxxx
Name:
Xxxxxxxx
X. Xxxxx
Title: Senior
Vice President
|
|
|
CNL
FINANCIAL GP HOLDING CORP.
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxx
Title: Secretary
|
|
|
CNL
FINANCIAL LP HOLDING, LP
By: CNL
FINANCIAL GP HOLDING CORP.,
as General Partner
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxx
Title: Secretary
|
|
|
CNL
FINANCIAL SERVICES GP CORP.
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxxxx
Title:
Secretary
|
|
|
CNL
FINANCIAL SERVICES, LP
By: CNL
FINANCIAL SERVICES GP CORP.,
as General Partner
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxxxx
Title:
Secretary
|
|
|
CNL
RESTAURANT ADVISORS, INC.
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxx
Title: Secretary
|
|
|
CNL
RESTAURANT CAPITAL CORP.
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxx
Title: Secretary
|
|
|
CNL
RESTAURANT CAPITAL GP CORP.
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxx
Title: Secretary
|
|
|
CNL
RESTAURANT CAPITAL, LP
By: CNL
RESTAURANT CAPITAL GP CORP.,
as General Partner
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxx
Title: Secretary
|
|
|
CNL
RESTAURANT DEVELOPMENT, INC.
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxx
Title: Secretary
|
|
|
CNL
RESTAURANT INVESTMENTS, INC.
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxx
Title: Secretary
|
|
|
TRUSTREET
BROKERAGE SERVICES, INC.,
FORMERLY
CNL RESTAURANT SERVICES, INC.
By:
/s/
Xxxxx Xxxx Xxxx
Name:
Xxxxx Xxxx Xxxx
Title:
President
|
|
|
FUEL
SUPPLY, INC.
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxx
Title: Secretary
|
|
|
NORTH
AMERICAN RESTAURANT MANAGEMENT, INC.
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxx
Title: Secretary
|
|
|
RAI
RESTAURANTS, INC.
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxx
Title: Secretary
|
|
|
REAL
ESTATE HOLDINGS I, LLC
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxx
Title: Secretary
|
|
|
REAL
ESTATE HOLDINGS II, LLC
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxx
Title: Secretary
|
|
|
RESTAURANT
ASSETS, LLC
By: CNL
FINANCIAL LP HOLDING, LP,
as Member
By: CNL
FINANCIAL GP HOLDING CORP.,
as General Partner
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxx
Title: Secretary
|
|
|
USRP
(BOB), LLC
By: CNL
APF PARTNERS, LP,
as Manager
By: CNL
APF GP CORP.,
as General Partner
By:
/s/
Xxxxxxxx X. Xxxxx
Name:
Xxxxxxxx
X. Xxxxx
Title: Senior
Vice President
|
|
|
USRP
(XXXXXX), LLC
By: CNL
APF PARTNERS, LP,
as Manager
By: CNL
APF GP CORP.,
as General Partner
By:
/s/
Xxxxxxxx X. Xxxxx
Name:
Xxxxxxxx
X. Xxxxx
Title: Senior
Vice President
|
|
|
USRP
(DON), LLC
By: CNL
APF PARTNERS, LP,
as Manager
By: CNL
APF GP CORP.,
as General Partner
By:
/s/
Xxxxxxxx X. Xxxxx
Name:
Xxxxxxxx
X. Xxxxx
Title: Senior
Vice President
|
|
|
USRP
(XXXX 10), L.P.
By: USRP
GP8, LLC,
as General Partner
By: CNL
APF PARTNERS, LP,
as Manager
By: CNL
APF GP CORP.,
as General Partner
By:
/s/
Xxxxxxxx X. Xxxxx
Name:
Xxxxxxxx
X. Xxxxx
Title: Senior
Vice President
|
|
|
USRP
(XXXX), LLC
By: CNL
APF PARTNERS, LP,
as Manager
By: CNL
APF GP CORP.,
as General Partner
By:
/s/
Xxxxxxxx X. Xxxxx
Name:
Xxxxxxxx
X. Xxxxx
Title: Senior
Vice President
|
|
|
USRP
(GANT1), LLC
By: CNL
APF PARTNERS, LP,
as Manager
By: CNL
APF GP CORP.,
as General Partner
By:
/s/
Xxxxxxxx X. Xxxxx
Name:
Xxxxxxxx
X. Xxxxx
Title: Senior
Vice President
|
|
|
USRP
(GANT2), LLC
By: CNL
APF PARTNERS, LP,
as Manager
By: CNL
APF GP CORP.,
as General Partner
By:
/s/
Xxxxxxxx X. Xxxxx
Name:
Xxxxxxxx
X. Xxxxx
Title: Senior
Vice President
|
|
|
USRP
(HAWAII), LLC
By: USRP
HOLDING CORP.,
as Manager
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxx
Title: Secretary
|
|
|
USRP
(XXXXXXXX), LLC
By: CNL
APF PARTNERS, LP,
as Manager
By: CNL
APF GP CORP.,
as General Partner
By:
/s/
Xxxxxxxx X. Xxxxx
Name:
Xxxxxxxx
X. Xxxxx
Title: Senior
Vice President
|
|
|
USRP
(KATY), L.P.
By: USRP
GP8, LLC,
as General Partner
By: CNL
APF PARTNERS, LP,
as Manager
By: CNL
APF GP CORP.,
as General Partner
By:
/s/
Xxxxxxxx X. Xxxxx
Name:
Xxxxxxxx
X. Xxxxx
Title: Senior
Vice President
|
|
|
USRP
(MINNESOTA), LLC
By: CNL
APF PARTNERS, LP,
as Manager
By: CNL
APF GP CORP.,
as General Partner
By:
/s/
Xxxxxxxx X. Xxxxx
Name:
Xxxxxxxx
X. Xxxxx
Title: Senior
Vice President
|
|
|
USRP
(XXXXX), LLC
By: CNL
APF PARTNERS, LP,
as Manager
By: CNL
APF GP CORP.,
as General Partner
By:
/s/
Xxxxxxxx X. Xxxxx
Name:
Xxxxxxxx
X. Xxxxx
Title: Senior
Vice President
|
|
|
USRP
(XXXXX), LLC
By: CNL
APF PARTNERS, LP,
as Manager
By: CNL
APF GP CORP.,
as General Partner
By:
/s/
Xxxxxxxx X. Xxxxx
Name:
Xxxxxxxx
X. Xxxxx
Title: Senior
Vice President
|
|
|
USRP
(SYBRA), LLC
By: CNL
APF PARTNERS, LP,
as Manager
By: CNL
APF GP CORP.,
as General Partner
By:
/s/
Xxxxxxxx X. Xxxxx
Name:
Xxxxxxxx
X. Xxxxx
Title: Senior
Vice President
|
|
|
USRP
GP8, LLC
By: CNL
APF PARTNERS, LP,
as Manager
By: CNL
APF GP CORP.,
as General Partner
By:
/s/
Xxxxxxxx X. Xxxxx
Name:
Xxxxxxxx
X. Xxxxx
Title: Senior
Vice President
|
|
|
USRP
HOLDING CORP.
By:
/s/
Xxxxxx X. Xxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxx
Title: Secretary
|
CHAR1\909716v6
ADMINISTRATIVE
AGENT/LENDERS:
BANK
OF AMERICA, N.A.,
as
Administrative
Agent, L/C Issuer and Swing Line Lender
By:
/s/
Xxxx Xxxxxxxxx
Name:
Xxxx
Xxxxxxxxx
Title:
Senior
Vice President
BANK
OF AMERICA, N.A.,
as a
Lender
By:
/s/
Xxxx Xxxxxxxxx
Name:
Xxxx
Xxxxxxxxx
Title:
Senior
Vice President
CHAR1\909716v6
KEYBANK,
NATIONAL ASSOCIATION,
in its
capacity as a Lender and in its capacity as Syndication Agent
By:
/s/
Xxxxxx X. Xxxxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxxxx
Title:
Sr.
Banker
CHAR1\909716v6
CREDIT
SUISSE, CAYMAN ISLANDS BRANCH (formerly
known as Credit Suisse First Boston,
acting
through its Cayman Islands Branch), in its capacity as a Lender and in its
capacity as Documentation Agent
By:
/s/
Xxxx X’Xxxx
Name:
Xxxx
X’Xxxx
Title:
Director
By:
/s/
Xxxxxx Xxxxx
Name:
Xxxxxx
Xxxxx
Title:
Associate
CHAR1\909716v6
SOCIETE
GENERALE,
in its
capacity as a Lender and in its capacity as Documentation Agent
By:
/s/
X.X. Xxxxxxxxxxx
Name:
X.X.
Xxxxxxxxxxx
Title:
Director
CHAR1\909716v6
WACHOVIA
BANK, NATIONAL ASSOCIATION,
in its
capacity as a Lender and in its capacity as Documentation Agent
By:
/s/
Xxxxxx X. Xxxxxx
Name:
Xxxxxx
X. Xxxxxx
Title:
Director
CHAR1\909716v6
EMIGRANT
BANK,
in its
capacity as a Lender
By:
/s/
Xxxxxxxx Xxxxxxxxx
Name:
Xxxxxxxx
Xxxxxxxxx
Title:
Senior
Executive Vice President
CHAR1\909716v6
XXXXX
FARGO BANK, N.A.,
in its
capacity as a Lender
By:
/s/
Xxxxx Xxxxxxx
Name:
Xxxxx
Xxxxxxx
Title:
Director
CHAR1\909716v6
XXXXXXX
XXXXX CAPITAL,
a
division of Xxxxxxx Xxxxx Business Financial Services, Inc., in its capacity
as
a Lender
By:
/s/
Xxxxxx X. Xxxxx
Name:
Xxxxxx
X. Xxxxx
Title:
Vice
President
CHAR1\909716v6
PNC
BANK, N.A.,
in its
capacity as a Lender
By:
/s/
Xxxxx X. Xxxxxxxxxxx
Name:
Xxxxx
X. Xxxxxxxxxxx
Title:
Vice
President
CHAR1\909716v6
CATHAY
UNITED BANK,
in its
capacity as a Lender
By:
/s/
Xxxxxxxxx Xxxx
Name:
Xxxxxxxxx
Xxxx
Title:
AVP/Deputy
General Manager
CHAR1\909716v6
COMPASS
BANK,
in its
capacity as a Lender
By:
/s/
Xxxxxxx Xxxx Xxxxx
Name:
Xxxxxxx
Xxxx Xxxxx
Title:
Senior
Vice President
CHAR1\909716v6
XXXXXXX
XXXXX BANK, FSB,
in its
capacity as a Lender
By:
/s/
Xxxxxx X. Xxxxx
Name:
Xxxxxx
X. Xxxxx
Title:
Vice
President
CHAR1\909716v6
TERM
LOAN
LENDER
AMMC
CLO
V., LIMITED
American
Money management Corp., as Collateral Manager
Name
of
Bank/Institution
By:
/s/
Xxxxxxx X. Eng
Name:
Xxxxxxx
X. Eng
Title:
Senior
Vice President
CHAR1\909716v6
TERM
LOAN
LENDER
BLACK
DIAMOND CLO 2005-1 LTD.
Black
Diamond Capital Management, L.L.C.
as
its
Collateral Manager
Name
of
Bank/Institution
By:
/s/
Xxxxx X. Xxxxx, Xx.
Name:
Xxxxx
X. Xxxxx, Xx.
Title:
President
& Managing Partner
CHAR1\909716v6
TERM
LOAN
LENDER
BLACK
DIAMOND CLO 2005-2 LTD.
Black
Diamond Capital Management, L.L.C. as its Collateral Manager
Name
of
Bank/Institution
By:
/s/
Xxxxx X. Xxxxx, Xx.
Name:
Xxxxx
X. Xxxxx, Xx.
Title:
President
& Managing Parnter
CHAR1\909716v6
TERM
LOAN
LENDER
BLACK
DIAMOND INTERNATIONAL FUNDING, LTD.
Name
of
Bank/Institution
By:
/s/
Xxxx Xxxxxxx
Name:
Xxxx
Xxxxxxx
Title:
Director
CHAR1\909716v6
TERM
LOAN
LENDER
BLUE
SQUARE FUNDING LIMITED SERIES 3
DB
Services New Jersey, Inc.
Name
of
Bank/Institution
By:
/s/
Xxxxx X. Xxxxxx
Name:
Xxxxx
X. Xxxxxx
Title:
Vice
President
By:
/s/
Xxxxxxx X’Xxxxxx
Name:
Xxxxxxx
X’Xxxxxx
Title:
Vice
President
CHAR1\909716v6
TERM
LOAN
LENDER
XXXXX
XXXXX CDO III, LTD.
Xxxxx
Xxxxx Management as Investment Advisor
Name
of
Bank/Institution
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X. Xxxxxxx
Title:
Vice
President
CHAR1\909716v6
TERM
LOAN
LENDER
XXXXX
XXXXX CDO VI, LTD.
Xxxxx
Xxxxx Management as Investment Advisor
Name
of
Bank/Institution
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X. Xxxxxxx
Title:
Vice
President
TERM
LOAN
LENDER
XXXXX
XXXXX CDO VII, PLC.
Xxxxx
Xxxxx Management as Investment Advisor
Name
of
Bank/Institution
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X. Xxxxxxx
Title:
Vice
President
CHAR1\909716v6
TERM
LOAN
LENDER
XXXXX
XXXXX CDO VIII, LTD.
Xxxxx
Xxxxx Management as Investment Advisor
Name
of
Bank/Institution
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X. Xxxxxxx
Title:
Vice
President
CHAR1\909716v6
TERM
LOAN
LENDER
XXXXX
XXXXX FLOATING RATE INCOME TRUST
Xxxxx
Xxxxx Management as Investment Advisor
Name
of
Bank/Institution
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X. Xxxxxxx
Title:
Vice
President
CHAR1\909716v6
TERM
LOAN
LENDER
XXXXX
XXXXX INSTITUTIONAL SENIOR LOAN FUND
Xxxxx
Xxxxx Management as Investment Advisor
Name
of
Bank/Institution
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X. Xxxxxxx
Title:
Vice
President
CHAR1\909716v6
TERM
LOAN
LENDER
XXXXX
XXXXX LIMITED DURATION INCOME FUND.
Xxxxx
Xxxxx Management as Investment Advisor
Name
of
Bank/Institution
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X. Xxxxxxx
Title:
Vice
President
CHAR1\909716v6
TERM
LOAN
LENDER
XXXXX
XXXXX SENIOR FLOATING RATE TRUST
Xxxxx
Xxxxx Management as Investment Advisor
Name
of
Bank/Institution
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X. Xxxxxxx
Title:
Vice
President
CHAR1\909716v6
TERM
LOAN
LENDER
XXXXX
XXXXX SENIOR INCOME TRUST
Xxxxx
Xxxxx Management as Investment Advisor
Name
of
Bank/Institution
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X. Xxxxxxx
Title:
Vice
President
CHAR1\909716v6
TERM
LOAN
LENDER
XXXXX
XXXXX SENIOR DURATION DIVERSIFIED INCOME FUND
Xxxxx
Xxxxx Management as Investment Advisor
Name
of
Bank/Institution
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X. Xxxxxxx
Title:
Vice
President
CHAR1\909716v6
TERM
LOAN
LENDER
XXXXX
XXXXX VARIABLE LEVERAGE FUND LTD.
Xxxxx
Xxxxx Management as Investment Advisor
Name
of
Bank/Institution
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X. Xxxxxxx
Title:
Vice
President
CHAR1\909716v6
TERM
LOAN
LENDER
XXXXX
XXXXX VT FLOATING RATE INCOME FUND
Xxxxx
Xxxxx Management as Investment Advisor
Name
of
Bank/Institution
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X. Xxxxxxx
Title:
Vice
President
CHAR1\909716v6
TERM
LOAN
LENDER
Elf
Funding Trust I
Highland
Capital management, LP., As Collateral Manager
Strand
Advisors, Inc., Its General Partner
Name
of
Bank/Institution
By:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx
Xxxxxxxx
Title:
Treasurer
CHAR1\909716v6
TERM
LOAN
LENDER
Emerald
Orchard Limited
Name
of
Bank/Institution
By:
/s/
Xxxx Xxxxx
Name:
Xxxx
Xxxxx
Title:
Authorized
Signatory
CHAR1\909716v6
TERM
LOAN
LENDER
Gleneagles
CLO, Ltd.
Highland
Capital Management, L.P., as Collateral Manager
Strand
Advisors, Inc., Its General Partner
Name
of
Bank/Institution
By:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx
Xxxxxxxx
Title:
Treasurer
CHAR1\909716v6
TERM
LOAN
LENDER
Xxxxxxx
& Co.
Boston
Management and Research as Investment Advisor
Name
of
Bank/Institution
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X. Xxxxxxx
Title:
Vice
President
CHAR1\909716v6
TERM
LOAN
LENDER
LaSalle Bank N.A. as Trustree for H/2 Real Estate CDO 2006-1 Ltd.
Name
of
Bank/Institution
By:
/s/
Xxxxxxx Xxxxxx
Name:
Xxxxxxx
Xxxxxx
Title:
Assistant
Vice President
CHAR1\909716v6
TERM
LOAN
LENDER
HFT
Real
Estate CDO 2006-Q, Ltd.
Highland
Capital Management, L.P. As Collateral Manager
Strand
Advisors, Inc., Its General Partner
Name
of
Bank/Institution
By:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx
Xxxxxxxx
Title:
Treasurer
CHAR1\909716v6
TERM
LOAN
LENDER
Highland
Floating Rate Advantage Fund
Name
of
Bank/Institution
By:
/s/
Xxx Xxxxxxxxx
Name:
Xxx
Xxxxxxxxx
Title:
Senior
Vice President
CHAR1\909716v6
TERM
LOAN
LENDER
Highland
Legacy Limited
Highland
Capital Management, L.P., As Collateral Manager
Strand
Advisors, Inc., Its General Partner
Name
of
Bank/Institution
By:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx
Xxxxxxxx
Title:
Treasurer
CHAR1\909716v6
TERM
LOAN
LENDER
Highland
Offshore Partners, L.P.
Highland
Capital Management, L.P., As Collateral Manager
Strand
Advisors, Inc., Its General Partner
Name
of
Bank/Institution
By:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx
Xxxxxxxx
Title:
Treasurer
CHAR1\909716v6
TERM
LOAN
LENDER
ING
Investment Management CLO I, Ltd.
ING
Investment Management Co. as its Investment Manager
Name
of
Bank/Institution
By:
/s/
Xxxxx X. Xxxxxx
Name:
Xxxxx
X. Xxxxxx
Title:
Vice
President
TERM
LOAN
LENDER
ING
Prime
Rate Trust
ING
Investment Management Co. as its Investment Manager
Name
of
Bank/Institution
By:
/s/
Xxxxx X. Xxxxxx
Name:
Xxxxx
X. Xxxxxx
Title:
Vice
President
TERM
LOAN
LENDER
ING
Senior Income Fund
ING
Investment Management Co. as its Investment Manager
Name
of
Bank/Institution
By:
/s/
Xxxxx X. Xxxxxx
Name:
Xxxxx
X. Xxxxxx
Title:
Vice
President
TERM
LOAN
LENDER
ING
International (II) Senior Bank Loans Euro
ING
Investment Management Co. as its Investment Manager
Name
of
Bank/Institution
By:
/s/
Xxxxx X. Xxxxxx
Name:
Xxxxx
X. Xxxxxx
Title:
Vice
President
CHAR1\909716v6
TERM
LOAN
LENDER
Jasper
CLO, Ltd.
Highland
Capital Management, L.P., As Collateral manager
Strand
Advisors, Inc., Its General Partner
Name
of
Bank/Institution
By:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx
Xxxxxxxx
Title:
Treasurer
CHAR1\909716v6
TERM
LOAN
LENDER
Kingsland
I, Ltd.
Name
of
Bank/Institution
By:
/s/
Xxxxxxx Xxxxx
Name:
Xxxxxxx
Xxxxx
Title:
Authorized
Officer
CHAR1\909716v6
TERM
LOAN
LENDER
Kingsland
II, Ltd.
Name
of
Bank/Institution
By:
/s/
Xxxxxxx Xxxxx
Name:
Xxxxxxx
Xxxxx
Title:
Authorized
Officer
CHAR1\909716v6
TERM
LOAN
LENDER
Xxxxxxxx
Funding, LLC
Name
of
Bank/Institution
By:
/s/
Xxxx X. Xxxxxxx
Name:
Xxxx
X. Xxxxxxx
Title:
Assistant
Vice President
CHAR1\909716v6
TERM
LOAN
LENDER
Loan
Star
State Trust
Highland
Capital Management, L.P., As Collateral Manager
Strand
Advisors, Inc., Its Investment Advisor
Name
of
Bank/Institution
By:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx
Xxxxxxxx
Title:
Treasurer
CHAR1\909716v6
TERM
LOAN
LENDER
Xxx
Capital Funding, L.P.
Highland
Capital Management, L.P., As Collateral Manager
Strand
Advisors, Inc., Its General Partner
Name
of
Bank/Institution
By:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx
Xxxxxxxx
Title:
Treasurer
TERM
LOAN
LENDER
Pioneer
Floating Rate Trust
Name
of
Bank/Institution
By:
/s/ Xxx
Xxxxxxxxx
Name: Xxx
Xxxxxxxxx
Title: Portfolio
Manager
CHAR1\909716v6
TERM
LOAN
LENDER
Senior
Debt Portfolio
Boston
Management and Research as Investment Advisor
Name
of
Bank/Institution
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X. Xxxxxxx
Title:
Vice
President
CHAR1\909716v6
TERM
LOAN
LENDER
Southfork
CLO, Ltd.
Highland
Capital Management, L.P., As Collateral Manager
Strand
Advisors, Inc., Its General Partner
Name
of
Bank/Institution
By:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx
Xxxxxxxx
Title:
Treasurer
CHAR1\909716v6
TERM
LOAN
LENDER
Trimaran
CLO IV Ltd.
Trimaran
Advisors, L.L.C.
Name
of
Bank/Institution
By:
/s/
Xxxxx X Xxxxxxxx
Name:
Xxxxx
X. Xxxxxxxx
Title:
Managing
Director
CHAR1\909716v6
TERM
LOAN
LENDER
Trimaran
CLO V Ltd.
Trimaran
Advisors, L.L.C.
Name
of
Bank/Institution
By:
/s/
Xxxxx X Xxxxxxxx
Name:
Xxxxx
X. Xxxxxxxx
Title:
Managing
Director
