Exhibit 10.7
NOTE
New York, New York
$400,000,000.00 June 30, 2003
NOTE, dated as of June 30, 2003 (this Note), by FIRST STATES INVESTORS
5000A, LLC, a Delaware limited liability company (Borrower), having an office at
c/o First States Group, L.P., 0000 Xxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000,
in favor of GERMAN AMERICAN CAPITAL CORPORATION, a Maryland corporation
(together with its successors and assigns, Lender), having an office at 00 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, on the date hereof and pursuant to the terms of this Note and the
Loan Agreement (as defined below), Lender has agreed to make a loan (the Loan)
to Borrower in the principal amount of $400,000,000.00.
NOW, THEREFORE, FOR VALUE RECEIVED, Borrower promises to pay to the order
of Lender the Principal Amount (as defined below), together with interest from
the date hereof and other fees, expenses and charges as provided in this Note.
1. DEFINED TERMS.
a. Capitalized terms used but not otherwise defined herein shall have the
respective meanings given thereto in the Loan Agreement (as defined
below), unless otherwise expressly provided herein. All references to
sections shall be deemed to be references to sections of this Note,
unless otherwise indicated.
b. The following terms shall have the meanings ascribed thereto:
Borrower shall have the meaning provided in the first paragraph hereof.
Default Rate shall mean, with respect to an acceleration of the Loan, a
rate per annum equal to the lesser of (a) the Maximum Legal Rate and (b)
four percent (4%) above the LIBOR Rate, adjusted from time to time as set
forth herein.
Exit Fee shall mean a non-refundable fee equal to one and one-half percent
(1.5%) of the outstanding Principal Amount being repaid at such time. The
Exit Fee shall be payable simultaneously with Borrower's payment of the
Principal Amount, provided that no Exit Fee shall be due and payable (i) in
the event Borrower refinances the Loan with Deutsche Bank AG, German
American Capital Corporation or any of their subsidiaries or affiliates or
(ii) with respect to any portion of the Principal Amount that is required
to be repaid with Proceeds
following a casualty or condemnation or that is paid by Borrower pursuant
to Section 13.1 of the Loan Agreement.
Interest Determination Date shall mean, with respect to each Interest
Period, the date which is two (2) Business Days prior to the tenth (10th)
day of each calendar month.
Interest Period shall mean each interest period commencing on the tenth
(10th) calendar day of a calendar month and ending on (and including) the
ninth (9th) calendar day of the following calendar month; provided that the
first interest period shall commence on the date hereof and the last
interest period shall end on the Maturity Date.
Lender shall have the meaning provided in the first paragraph hereof.
LIBOR shall mean, with respect to any Interest Determination Date, the rate
(expressed as a percentage per annum rounded upwards, if necessary, to the
nearest one one hundredth (1/100) of one percent (1%)) for deposits in U.S.
Dollars for a one (1) month period that appears on Telerate Page 3750 (as
defined below) as of 11:00 a.m., London time, on such Interest
Determination Date. If such rate does not appear on Telerate Page 3750 as
of 11:00 a.m., London time, on the applicable Interest Determination Date,
the Lender shall request the principal London office of any four (4) prime
banks in the London interbank market selected by the Lender to provide such
banks' quotations of the rates at which deposits in U.S. Dollars are
offered by such banks at approximately 11:00 a.m., London time, to prime
banks in the London interbank market for a one (1) month period commencing
on the first day of the related Interest Period and in a principal amount
that is representative for a single comparable transaction in the relevant
market at the relevant time. If at least two (2) such offered quotations
are so provided, LIBOR will be the arithmetic mean of such quotations
(expressed as a percentage and rounded upwards, if necessary, to the
nearest one one hundredth (1/100) of one percent (1%)). If fewer than two
(2) such quotations are so provided, the Lender will request major banks in
New York City selected by the Lender to quote such banks' rates for loans
in U.S. Dollars to leading European banks as of approximately 11:00 a.m.,
New York City time, on the applicable Interest Determination Date for a one
(1) month period commencing on the first day of the related Interest Period
and in an amount that is representative for a single comparable transaction
in the relevant market at the relevant time. If at least two (2) such rates
are so provided, LIBOR will be the arithmetic mean of such rates (expressed
as a percentage and rounded upwards, if necessary, to the nearest one one
hundredth (1/100) of one percent (1%)). If fewer than two (2) rates are so
provided, then LIBOR will be LIBOR used to determine the LIBOR Rate during
the immediately preceding Interest Period.
LIBOR Margin shall mean one hundred fifty basis points (1.5%) per annum.
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LIBOR Rate shall mean, with respect to each Interest Period, an interest
rate per annum equal to the sum of (a) LIBOR, determined as of the Interest
Determination Date immediately preceding the commencement of such Interest
Period, plus (b) the LIBOR Margin.
Loan shall have the meaning provided in the Recitals to this Note.
Loan Agreement shall mean the Loan and Security Agreement, dated the date
hereof, between Borrower and Lender.
Maturity Date shall mean December 31, 2003, or such earlier date on which
the final payment of principal of this Note becomes due and payable as
provided in the Loan Agreement or this Note, whether by declaration of
acceleration or otherwise.
Maturity Date Payment shall have the meaning set forth in Section 3(d).
Note shall have the meaning provided in the first paragraph hereof.
Payment Date shall be the tenth (10th) calendar day of each calendar month
and if such day is not a Business Day, then the Business Day immediately
preceding such day, commencing on August 8, 2003 and continuing to and
including the Maturity Date.
Prepayment Date shall have the meaning provided in Section 4(a)(i).
Prepayment Notice shall have the meaning provided in Section 4(a)(i).
Principal Amount shall mean Four Hundred Million Dollars ($400,000,000.00)
or so much as may be outstanding under this Note.
Telerate Page 3750 shall mean the display designated as "Page 3750" on the
Dow Xxxxx Market Service (or any successor thereto) or such other service
as may be nominated by the British Bankers' Association as the information
vendor for the purpose of displaying British Bankers' Association Interest
Settlement Rates for U.S. Dollar deposits.
2. INTEREST.
a. Prior to the Maturity Date, interest shall accrue on the Principal
Amount as follows:
i. from and including the date hereof to, but not including, the
first (1st) day of the second (2nd) Interest Period (i.e., the
10th day of the first calendar month immediately after the date
hereof), at a rate per annum equal to 2.53%; and
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ii. from and including the first (1/st/) day of the second (2/nd/)
Interest Period following the date of this Note, and thereafter
during each Interest Period during the term of this Note, at the
LIBOR Rate.
b. From and after the Maturity Date and from and after the occurrence and
during the continuance of any Event of Default, interest shall accrue
on the Principal Amount at the Default Rate.
c. Except as expressly set forth in the Loan Agreement to the contrary,
interest shall accrue on all amounts advanced by Lender pursuant to
the Loan Documents (other than the Principal Amount, which shall
accrue interest in accordance with clauses a. and b. above) at the
Default Rate.
d. Interest, for any given Interest Period, shall be computed on the
Principal Amount on the basis of a fraction, the denominator of which
shall be 360 and the numerator of which shall be the actual number of
days in the relevant Interest Period.
e. The provisions of this Section 2 are subject in all events to the
provisions of Section 2.2.4 of the Loan Agreement.
3. PAYMENTS.
a. On each Payment Date, Borrower shall pay to Lender interest accruing
hereunder during the entire Interest Period in which said Payment Date
occurs.
b. All payments made by Borrower hereunder or under any of the Loan
Documents shall be made on or before 12:00 noon New York City time.
Any payments received after such time shall be credited to the next
following Business Day.
c. All amounts advanced by Lender pursuant to the Loan Documents, other
than the Principal Amount, or other charges provided in the Loan
Documents, shall be due and payable as provided in the Loan Documents.
In the event any such advance or charge is not so repaid by Borrower,
Lender may, at its option, first apply any payments received under
this Note to repay such advances, together with any interest thereon,
or other charges as provided in the Loan Documents, and the balance,
if any, shall be applied in payment of any installment of interest or
principal then due and payable.
d. The entire Principal Amount of this Note, all unpaid accrued interest,
all interest that would accrue on the Principal Amount through the end
of the Interest Period during which the Maturity Date occurs and all
other fees and sums then payable hereunder or under the Loan
Documents, including, if applicable, the Exit Fee (collectively, the
Maturity Date Payment), shall be due and payable in full on the
Maturity Date.
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e. Amounts due on this Note shall be payable, without any counterclaim,
setoff or deduction whatsoever, at the office of Lender or its agent
or designee at the address set forth on the first page of this Note or
at such other place as Lender or its agent or designee may from time
to time designate in writing.
f. All amounts due under this Note, including, without limitation,
interest and the Principal Amount, shall be due and payable in lawful
money of the United States.
g. To the extent that Borrower makes a payment or Lender receives any
payment or proceeds for Borrower's benefit, which are subsequently
invalidated, declared to be fraudulent or preferential, set aside or
required to be repaid to a trustee, debtor in possession, receiver,
custodian or any other party under any bankruptcy law, common law or
equitable cause, then, to such extent, the obligations of Borrower
hereunder intended to be satisfied shall be revived and continue as if
such payment or proceeds had not been received by Lender.
4. PREPAYMENTS. The outstanding Principal Amount may only be prepaid in
accordance with this Section.
a. Voluntary Prepayments. Borrower shall have the right to prepay the
Principal Amount, in whole or in part, upon satisfaction of the
following conditions:
i. Borrower shall provide prior irrevocable written notice (the
Prepayment Notice) to Lender specifying the proposed date on
which the prepayment is to be made, which date must be no earlier
than ten (10) Business Days after the date of such Prepayment
Notice (the date of a prepayment pursuant to this Section 4(a)
and Section 4(b) below being the Prepayment Date);
ii. Borrower shall comply with the provisions set forth in Section
4(c) of this Note; and
iii. No prepayment shall be permitted on any date during the period
commencing on the first calendar day immediately following a
Payment Date to, but not including, the Interest Determination
Date in such calendar month.
b. Mandatory Prepayments.
i. On the next occurring Payment Date following the date on which
Borrower actually receives any Proceeds, if Lender is not
obligated to make such Proceeds available to Borrower for the
restoration of the Property pursuant to the Loan Documents,
Borrower shall prepay the outstanding principal balance of the
Note in an amount
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equal to one hundred percent (100%) of such Proceeds (and, for
the avoidance of doubt, no Exit Fee shall be payable on the
portion of the Principal Amount repaid with such Proceeds); and
ii. Borrower shall comply with the provisions set forth in Section
4(c) of this Note.
c. Payments in Connection with a Prepayment.
i. On the date on which a prepayment, voluntary or mandatory, is
made under this Note or as required under the Loan Agreement,
Borrower shall pay to Lender all unpaid interest on the Principal
Amount prepaid, such unpaid interest calculated (even if such
period extends beyond the date of prepayment) through the end of
the Interest Period during which such prepayment is made, except
if Borrower refinances the Loan with Deutsche Bank AG, German
American Capital Corporation or any of their subsidiaries or
affiliates (in which case interest will only be calculated
through the Prepayment Date).
ii. On the Prepayment Date, Borrower shall pay to Lender all other
sums, not including scheduled interest payments but including and
not limited to, the Exit Fee, then due under the Note, the Loan
Agreement, the Security Instruments, and the other Loan
Documents; and
iii. Borrower shall pay all costs and expenses of Lender incurred in
connection with the prepayment (including without limitation, any
costs and expenses associated with a release of the Lien of the
related Security Instruments as set forth in Section 2.3.3 of the
Loan Agreement as well as reasonable attorneys' fees and
expenses).
5. MISCELLANEOUS.
a. Waiver. Borrower and all endorsers, sureties and guarantors hereby
jointly and severally waive all applicable exemption rights, valuation
and appraisement, presentment for payment, demand, notice of demand,
notice of nonpayment or dishonor, protest and notice of protest of
this Note, and, except as otherwise expressly provided in the Loan
Documents, all other notices in connection with the delivery,
acceptance, performance, default or enforcement of the payment of this
Note. Borrower and all endorsers, sureties and guarantors consent to
any and all extensions of time, renewals, waivers or modifications
that may be granted by Lender with respect to the payment or other
provisions of this Note and to the release of the collateral securing
this Note or any part thereof, with or without substitution, and agree
that additional makers, endorsers, guarantors or
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sureties may become parties hereto without notice to them or affecting
their liability under this Note.
b. Non-Recourse. Recourse with respect to any claims arising under or in
connection with this Note shall be limited to the extent provided in
Section 18.1 of the Loan Agreement and the terms, covenants and
conditions of Section 18.1 of the Loan Agreement are hereby
incorporated by reference as if fully set forth in this Note.
c. Note Secured. This Note and all obligations of Borrower hereunder are
secured by the Loan Agreement, the Security Instruments and the other
Loan Documents.
d. Notices. Any notice, election, request or demand which by any
provision of this Note is required or permitted to be given or served
hereunder shall be given or served in the manner required for the
delivery of notices pursuant to the Loan Agreement.
e. Entire Agreement. This Note, together with the other Loan Documents,
constitutes the entire and final agreement between Borrower and Lender
with respect to the subject matter hereof and thereof and may only be
changed, amended, modified or waived by an instrument in writing
signed by Borrower and Lender.
f. No Waiver. No waiver of any term or condition of this Note, whether by
delay, omission or otherwise, shall be effective unless in writing and
signed by the party sought to be charged, and then such waiver shall
be effective only in the specific instance and for the purpose for
which given. No notice to, or demand on, Borrower shall entitle
Borrower to any other or future notice or demand in the same, similar
or other circumstances.
g. Successors and Assigns. This Note shall be binding upon and inure to
the benefit of Borrower and Lender and their respective successors and
permitted assigns. Upon any endorsement, assignment, or other transfer
of this Note by Lender or by operation of law, the term "Lender" as
used herein, shall mean such endorsee, assignee, or other transferee
or successor to Lender then becoming the holder of this Note. The term
"Borrower" as used herein shall include the respective successors and
assigns, legal and personal representatives, executors,
administrators, devisees, legatees and heirs of Borrower, if any.
h. Captions. All paragraph, section, exhibit and schedule headings and
captions herein are used for reference only and in no way limit or
describe the scope or intent of, or in any way affect, this Note.
i. Severability. The provisions of this Note are severable, and if any
one clause or provision hereof shall be held invalid or unenforceable
in whole or in part, then such invalidity or unenforceability shall
affect only such
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clause or provision, or part thereof, and not any other clause or
provision of this Note.
j. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WITHOUT
REGARD TO CHOICE OF LAW RULES. BORROWER AGREES THAT, ANY SUIT FOR
THE ENFORCEMENT OF THIS NOTE OR ANY OTHER LOAN DOCUMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR IN ANY FEDERAL
COURT LOCATED IN OR HAVING JURISDICTION OVER THE SOUTHERN
DISTRICT OF NEW YORK AND CONSENT TO THE NONEXCLUSIVE JURISDICTION
OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING
MADE UPON BORROWER IN THE MANNER AND AT THE ADDRESS SPECIFIED FOR
NOTICES IN THE LOAN AGREEMENT. BORROWER HEREBY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
k. JURY TRIAL WAIVER. BORROWER AND ALL PERSONS CLAIMING BY, THROUGH
OR UNDER IT HEREBY EXPRESSLY, KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (I) ARISING UNDER THIS NOTE,
INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE MODIFICATION
THEREOF OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO THIS NOTE (AS NOW OR HEREAFTER MODIFIED) OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR
THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND BORROWER HEREBY
AGREES AND CONSENTS THAT AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION MAY BE FILED WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT HERETO TO THE WAIVER OF ANY RIGHT TO TRIAL BY JURY.
BORROWER ACKNOWLEDGES THAT IT HAS CONSULTED WITH LEGAL COUNSEL
REGARDING THE MEANING OF THIS WAIVER AND ACKNOWLEDGES THAT THIS
WAIVER IS AN ESSENTIAL INDUCEMENT FOR THE MAKING OF
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THE LOAN. THIS WAIVER SHALL SURVIVE THE REPAYMENT OF THE LOAN.
l. Counterclaims and other Actions. Borrower hereby expressly and
unconditionally waives, in connection with any suit, action or
proceeding brought by Lender on this Note, any and every right it
may have to (i) interpose any counterclaim therein (other than a
counterclaim which can only be asserted in the suit, action or
proceeding brought by Lender on this Note and cannot be
maintained in a separate action) and (ii) have any such suit,
action or proceeding consolidated with any other or separate
suit, action or proceeding.
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IN WITNESS WHEREOF, Borrower has caused this Note to be executed and
delivered as of the day and year first above written.
BORROWER:
FIRST STATES INVESTORS 5000A, LLC,
a Delaware limited liability company
By: _____________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President
STATE OF PENNSYLVANIA )
) ss.
COUNTY OF PHILADELPHIA )
On the ____ day of June in the year 2003 before me, the
undersigned, a notary public in and for said state, personally appeared Xxxxx X.
Xxxxxxx, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity, and that by his/her/their signature on the instrument, the individual,
or the person upon behalf of which the individual acted, executed the
instrument.
________________________________
Notary Public
[Notary Seal] My commission expires:
