<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-1
TENDER OFFER STATEMENT
(Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934)
(Amendment No. 1)
UNITED INNS, INC.
(Name of Subject Company)
UNITED/HARVEY HOLDINGS, L.P.
(Bidder)
Common Stock, par value $1.00 per share 910688 10 0
(Title of Class of Securities) (CUSIP Number of Class of Securities)
Robert A. Profusek, Esq. Mark E. Betzen, Esq.
Jones, Day, Reavis & Pogue Jones, Day, Reavis & Pogue
599 Lexington Avenue 2300 Trammell Crow Center
New York, New York 10022 2001 Ross Avenue
(212) 326-3800 Dallas, Texas 75201
(214) 220-3939
Name, Address and Telephone Number of Persons Authorized to Receive Notices and
Communications on Behalf of the Persons Filing Statement)
Page 1 of 89 Pages
Exhibit Index on Page 5
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This Amendment No. 1 supplements and amends the Schedule 14D-1 Tender
Offer Statement (the "Schedule 14D-1") relating to a tender offer by
United/Harvey Holdings, L.P., a Delaware limited partnership ("Purchaser"), to
purchase all of the outstanding shares of Common Stock, par value $1.00 per
share (the "Shares"), of United Inns, Inc., a Delaware corporation (the
"Company"), at $25.00 per Share, net to the seller in cash, on the terms and
subject to the conditions set forth in Purchaser's Offer to Purchase, dated
November 21, 1994 (the "Offer to Purchase"), and in the related Letter of
Transmittal (which together constitute the "Offer"). Capitalized terms used
herein which are not otherwise defined herein are so used with the respective
meanings ascribed to them in the Offer to Purchase.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 4 of the Schedule 14D-1 is hereby supplemented and amended by
adding the following:
(b) As disclosed in the Offer to Purchase (see Section 10
thereof), Hampstead Investment Partners Funding Corp., an
affiliate of Purchaser ("Hampstead Funding"), is party to a
bank credit agreement (the "Credit Agreement") with the
lenders party thereto and Bankers Trust Company, as agent
("BTC"), providing for a revolving line of credit and letter
of credit facility. Under the Credit Agreement, Hampstead
Funding and investment entities, including Purchaser, formed
by Hampstead through Hampstead Funding may borrow funds or
have letters of credit issued on their behalf for the purpose
of financing the costs and expenses of carrying on their
day-to-day business and pursuing and making investments,
including Purchaser's acquisition of Shares pursuant to the
Offer. The lenders under the Credit Agreement have committed
to provide up to $125.0 million of loans and letters of credit
to Hampstead Funding and related investment partnerships.
Purchaser anticipates that, as of the Expiration Date, in
excess of $60.0 million will be available for borrowings by
Purchaser under the Credit Agreement. In addition, affiliates
of Purchaser have unconditional commitments in excess of
$145.0 million for the provision of equity investments in
affiliated acquisition entities, including Purchaser. The
payment for Shares acquired pursuant to the Offer will be
financed by a combination of the foregoing sources.
Loans under the Credit Agreement bear interest at a
rate determined by reference to, at the option of Hampstead
Funding from time to time, (i) BTC's base rate or (ii) BTC's
adjusted interbank offered rate plus 0.625%. Interest on
loans under the Credit Agreement is payable monthly in
arrears. The interest period for any adjusted interbank
offered rate loan will be one, two, three, six or, if
available, 12 months, as Hampstead Funding may elect.
Hampstead Funding is required to pay to the lenders commitment
fees of 0.25% per annum on the unused portion of the total
loan commitments, payable quarterly in arrears, and Hampstead
Funding or the appropriate investment entity is required to
pay a letter of credit fee of 0.625% per annum on the amount
of any outstanding letter of credit issued on its behalf,
payable quarterly in arrears. Hampstead Funding and related
investment entities are also required to pay to BTC certain
fees in consideration of the administration of the Credit
Agreement. The unpaid principal amount of loans under the
Credit Agreement, together with accrued and unpaid interest
thereon, is payable on July 3, 1998. Hampstead Fundings'
obligations under the Credit Agreement are secured by the
grant to BTC of a security interest in certain of its assets.
Pursuant to the Credit Agreement, Hampstead Funding
is required to satisfy certain covenants, including without
limitation covenants to (i) deliver certain information
regarding Hampstead Funding and related investment entities to
BTC, (ii) timely pay all taxes, (iii) maintain rights and
privileges necessary in the ordinary course of business, (iv)
notify BTC of defaults or events of default under the Credit
Agreement, (v) notify BTC of certain changes in the financial
condition of Hampstead Funding or any related investment
entity, (vi) comply with the provisions of the Credit
Agreement, (vii) act prudently and in accordance with
customary industry standards in managing assets, (viii) give
BTC and other
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lenders access to books and records, (ix) comply with law, (x)
maintain insurance consistent with customary standards, (xi)
obtain required governmental licenses and permits, and (xii)
preserve and protect the rights of the lenders under the
Credit Agreement. The Credit Agreement also imposes certain
restrictions and limitations, including without limitation
restrictions and limitations on (i) the incurrence of
additional indebtedness by Hampstead Funding and related
investment entities, (ii) the creation of certain liens by
Hampstead Funding, (iii) any merger involving Hampstead
Funding, (iv) the modification of certain agreements to which
Hampstead Funding is a party, (v) the establishment of
employee benefit plans, (vi) the use of borrowings under the
Credit Agreement, and (vii) the incurrence of contingent
liabilities by Hampstead Funding and related investment
entities.
It is anticipated that any borrowings under the
Credit Agreement will be repaid, depending on business and
market conditions, with cash from operations, capital
transactions, additional borrowings or other financings or
such combination of the foregoing as Hampstead may deem
appropriate from time to time.
(c) Not applicable.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 of the Schedule 14D-1 is hereby supplemented and amended by
adding the following exhibit:
99.(b)(1) Amended and Restated Credit Agreement, dated as of
May 18, 1994, by and among Hampstead Funding, each of
the lenders party thereto and BTC, as agent for the
lenders.
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SIGNATURE
After due inquiry and to the best of its knowledge and belief, each of
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
Dated: January 13, 1995.
UNITED/HARVEY HOLDINGS, L.P.
By: /s/ Troy B. Lewis
-----------------------------
Troy B. Lewis*
HAMPSTEAD GENPAR, L.P.
By: /s/ Troy B. Lewis
-----------------------------
Troy B. Lewis*
HH GENPAR PARTNERS
By: /s/ Troy B. Lewis
-----------------------------
Troy B. Lewis*
HAMPSTEAD ASSOCIATES, L.P.
By: /s/ Troy B. Lewis
-----------------------------
Troy B. Lewis*
RAW GENPAR, INC.
By: /s/ Troy B. Lewis
-----------------------------
Troy B. Lewis*
INCAP, INC.
By: /s/ Troy B. Lewis
-----------------------------
Troy B. Lewis*
________________________
* Pursuant to a Power of Attorney previously filed with the Securities and
Exchange Commission at Exhibit (g)(1) to the Schedule 14D-1.
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Numbered
Exhibit Page
------- --------------
<S> <C> <C>
99.(b)(1) Amended and Restated Credit Agreement, dated as of May 18, 1994,
by and among Hampstead Funding, each of the lenders party thereto
and BTC, as agent for the lenders . . . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
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<PAGE> 1
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT is dated as of May 18,
1994, by and between HAMPSTEAD INVESTMENT PARTNERS FUNDING CORP., a Texas
corporation ("BORROWER"), BANKERS TRUST COMPANY, a national banking association
("BANKERS TRUST"), and each of the other lending institutions that has executed
this Credit Agreement or that is assigned an interest hereunder pursuant to
SECTION 12.08(c) hereof, as evidenced by an Assignment and Acceptance
Agreement, as lenders (herein collectively referred to as the "LENDERS", and
each individually referred to as a "LENDER"), and Bankers Trust, as agent for
the Lenders to the extent and in the manner provided in ARTICLE XI below (in
such capacity being herein referred to as the "AGENT").
W I T N E S S E T H:
WHEREAS, Borrower has requested that Lenders make loans and cause the
issuance of letters of credit for the principal purpose of financing the costs
and other expenses to be incurred by Borrower and Qualified Borrowers in
carrying on their day-to-day businesses and by Qualified Borrowers in pursuing
and making Qualified Investments (each as hereinafter defined); and
WHEREAS, Borrower, pursuant to the Commitment Agreement, has formed
and will be forming one or more Partnerships (as defined below) in order to
invest in and otherwise participate in the Qualified Investments; and
WHEREAS, Lenders are willing to lend funds to Borrower and the
Partnerships and to cause the issuance of letters of credit and accept guaranty
agreements upon the terms and subject to the conditions set forth in that
certain Credit Agreement dated as of December 15, 1993 (the "ORIGINAL CREDIT
AGREEMENT");
WHEREAS, after December 15, 1993 and prior to the date hereof, Agent,
as a Lender, advanced Loans under the Original Credit Agreement, and the other
Lenders have agreed to fund their Pro Rata Share of such Loans; and
WHEREAS, Borrower, Agent and Lenders desire to amend and restate the
terms and conditions of the Original Credit Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein
contained and for other valuable consideration the parties hereto do hereby
agree as follows:
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ARTICLE I
DEFINITIONS
1.01. DEFINED TERMS. For the purposes of this Credit Agreement,
unless the context otherwise requires, the following terms shall have the
respective meanings assigned to them in this ARTICLE I or in the SECTION or
recital referred to:
"ADJUSTED INTERBANK RATE" shall, with respect to each Interest Period,
mean on any day in such Interest Period the sum of (a) the quotient of (i) the
Interbank Offered Rate with respect to such Interest Period DIVIDED BY (ii) the
remainder of 1.00 MINUS the Eurodollar Reserve Requirement in effect on such
day, and (b) the Eurodollar Margin.
"AGENT" shall mean Bankers Trust and any successor Agent appointed
pursuant to the terms of this Credit Agreement.
"AFFILIATE" of any Person shall mean any other Person that, directly
or indirectly, controls or is controlled by, or is under common control with,
such Person. For purpose of this definition, "control" and the correlative
meanings of the terms "controlled by" and "under common control with" shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
the ownership of voting shares or partnership interests or by contract or
otherwise.
"APPLICATION AND AGREEMENT FOR LETTER OF CREDIT" shall mean an
application and agreement for standby letter of credit by and between Borrower
or a Qualified Borrower and the Letter of Credit Issuer in the form of EXHIBIT
E and EXHIBIT H attached hereto, respectively and incorporated herein by
reference (with blanks appropriately completed in conformity herewith), either
as originally executed or as it may from time to time be supplemented,
modified, amended, renewed, or extended.
"ASSIGNEE" shall have the meaning assigned to such term in SECTION
12.08(c) hereof.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" shall mean the agreement and
instrument contemplated by SECTION 12.08(c) hereof, pursuant to which any
Lender assigns all or any portion of its rights and obligations hereunder,
which agreement shall be in the form of EXHIBIT Q attached hereto.
"AVAILABILITY PERIOD" shall mean the period commencing on the date on
which Borrower satisfies all of the conditions precedent set forth in SECTIONS
6.01, 6.02, and 6.03 hereof and ending on the earlier of (a) the Loan
Commitment Termination Date, (b) the date upon which the Agent terminates the
Total Loan Commitment after the occurrence of any Event of Default, or (c) the
date on which a reduction in the Total Commitment to zero, pursuant to SECTION
2.01(f), is effective.
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"BORROWER" shall have the meaning assigned to such term in the first
paragraph hereof.
"BORROWER ASSIGNMENT AGREEMENT" shall have the meaning assigned to
such term in SECTION 5.01(a) hereof.
"BORROWER CLAIMS" shall have the meaning assigned to such term in
SECTION 5.05 hereof.
"BORROWER DEBT" shall mean (a) all "liabilities" which would be
reflected on a balance sheet of Borrower, prepared in accordance with Generally
Accepted Accounting Principles, (b) all obligations of Borrower relating to any
guaranty, reimbursement obligation for letters of credit, deferred funding
obligation or any other contingent liability, (c) all obligations of Borrower
relating to any capital lease, and (d) all obligations, indebtedness and
liabilities secured by any lien or any security interest on any property or
assets of Borrower.
"BORROWING" shall mean a disbursement made by the Lenders of any of
the proceeds of the Loans when such disbursement increases the outstanding
principal amount of the Loans, and "BORROWINGS" shall mean the plural thereof.
"BUSINESS DAY" shall mean any day of the year on which commercial
banks are not authorized to be closed in New York, New York or Dallas, Texas.
"CAPITAL CALL" shall have the meaning assigned to such term in the
Commitment Agreement.
"CAPITAL CALL NOTICE" shall have the meaning assigned to such term in
the Commitment Agreement.
"CAPITAL COMMITMENTS ACCOUNT" shall have the meaning assigned to such
term in SECTION 5.02 hereof.
"CAPITAL CONTRIBUTIONS" shall mean the cash contributions to be made
by the Investors pursuant to the Commitment Agreement and the partnership
agreements of the Partnerships.
"CERCLIS" shall mean the Comprehensive Environmental Response,
Compensation and Liability Information System.
"CODE" shall mean the Uniform Commercial Code as adopted in the State
of New York and any other state, which governs creation or perfection (and the
effect thereof) of security interests in any collateral for the Obligation.
"COLLATERAL DOCUMENTS" shall have the meaning assigned to such term in
SECTION 5.01 hereof.
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"COLLATERAL REGISTER" shall have the meaning assigned to such term in
SECTION 5.01(c) hereof.
"COMMITMENT AGREEMENT" shall mean that certain Commitment Agreement
dated as of December 10, 1993 and among Borrower, Holdings and the Investors,
as the same may be restated, modified, amended or supplemented from time to
time.
"CONFIDENTIAL INFORMATION" shall mean, at any time, (a) all data,
reports, interpretations, forecasts and records containing or otherwise
reflecting information and concerning the Borrower, the Qualified Borrowers or
the Investors, that is not available to the general public, together with
analyses, compilations, studies or other documents, which contain or otherwise
reflect such information made available by or on behalf of Borrower, a
Qualified Borrower or any Investor pursuant to this Credit Agreement orally or
in writing to the Agent or any Lender or their attorneys, certified public
accountants or agents, or (b) any other materials which are clearly and
conspicuously marked or communicated as "Confidential," or otherwise requested
in writing to be held confidential, but shall not include any data or
information that (i) was or became generally available to the public at or
prior to such time (unless divulged by the Agent or such Lender or their
respective attorneys, certified public accountants or agents) or (ii) was or
became available to the Agent or a Lender or their attorneys, certified public
accountants or agents on a non-confidential basis from Borrower or any other
source at or prior to such time.
"CONSENT AGREEMENTS" shall have the meaning given to such term in
SECTION 5.01(b).
"CONSEQUENTIAL LOSS" shall, with respect to Borrower's payment of all
or any portion of the then-outstanding principal amount of any Eurodollar Loan
on a day other than the last day of the Interest Period related thereto, mean
any loss, cost, or expense incurred by Lenders, or any of them, as a result of
the timing of such payment or in re-depositing such principal amount, including
the sum of (a) the interest that, but for such payment, Lenders, or any of
them, would have earned in respect of such principal amount so paid, for the
remainder of the Interest Period applicable to such sum, reduced, if Lenders,
or any of them, are able to re-deposit such principal amount so paid for the
balance of such Interest Period, by the interest earned by Lenders, or any of
them, as a result of so re-depositing such principal amount, PLUS (b) any
expense or penalty incurred by Lenders, or any of them, on re-depositing such
principal amount.
"CONTROLLED GROUP" shall mean (a) the controlled group of
corporations as defined in Section 1563 of the Internal Revenue Code or (b) the
group of trades or businesses under common control as defined in Section 414(c)
of the Internal Revenue Code, of which Borrower is a part or may become a part.
"CONVERSION DATE" shall have the meaning assigned to such term in
SECTION 2.03 hereof.
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"CREDIT AGREEMENT" shall mean this Credit Agreement, of which this
ARTICLE I forms a part, together with all amendments and modifications hereof
and supplements and attachments hereto.
"CURRENT PARTY" shall have the meaning assigned to such term in
SECTION 11.13.
"DEBTOR RELIEF LAWS" shall mean any applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, insolvency,
reorganization, or similar laws affecting the rights, remedies, or recourses of
creditors generally, including without limitation the Federal Bankruptcy Code
and all amendments thereto, as are in effect from time to time during the term
of the Loans.
"DEFAULT RATE" shall mean on any day the lesser of (a) the Floating
Base Rate in effect on such day, PLUS four percent (4%), or (b) the Maximum
Rate.
"DOLLARS" and the sign "$" shall mean lawful currency of the United
States of America.
"ELIGIBLE ASSIGNEE" shall mean (a) a commercial bank organized under
the laws of the United States, or any state thereof, and having (i) total
assets in excess of $3,000,000,000 and (ii) a combined capital and surplus of
at least $250,000,000; (b) a commercial bank organized under the laws of any
other country which is a member of the Organization of Economic Cooperation and
Development ("OECD"), or a political subdivision of any such country, and
having (i) total assets in excess of $3,000,000,000 and (ii) a combined capital
and surplus of at least $250,000,000, provided that such bank is acting through
a branch or agency located in the country in which it is organized or another
country which is also a member of the OECD; (c) a life insurance company
organized under the laws of any state or organized under the laws of any
country and licensed as a life insurer by any state, and having (i) admitted
assets of at least $3,000,000,000 and (ii) insurance claims paying ability of
A+ in Best's Insurance Reports; (d) a finance, leasing or trading company
organized under the laws of any state of the United States or organized under
the laws of any country which is a member of OECD, or a political subdivision
of any such country and licensed or qualified to conduct such business under
the laws of any such state, and having (i) total assets of at least
$3,000,000,000, (ii) a net worth of at least $250,000,000 and (iii) a net worth
as a percentage of total assets of at least eight (8) percent; and (e) any
other Person or entity mutually agreed to by Agent and Borrower.
"ENVIRONMENTAL COMPLAINT" shall mean any complaint, order, demand,
citation or notice issued in writing to Borrower by any Governmental Authority
with regard to air emissions, water discharges, Releases, or disposal of any
Hazardous Material, noise emissions or any other environmental, health or
safety matter affecting Borrower or any of Borrower's Properties or
Investments.
"ENVIRONMENTAL LAWS" shall mean (a) Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Re-authorization Act of 1986, 42 U.S.C. Section 9601 et seq.,
(b) the Resource Conservation and
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Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of
1984, 42 U.S.C. Section 6901 et seq., (c) the Clean Air Act, 42 U.S.C. Section
7401 et seq., as amended by the Clean Air Act Amendments of 1990, (d) the Clean
Water Act of 1977, 33 U.S.C. Section 1251 et seq., (e) the Toxic Substances
Control Act, 15 U.S.C.A. Section 2601 et seq., (f) all other federal, state and
local laws, ordinances, regulations, or policies relating to pollution or
protection of human health or the environment including without limitation, air
pollution, water pollution, noise control, or the use, handling, discharge,
disposal, Release or recovery of on-site or off-site Hazardous Materials, as
each of the foregoing may be amended from time to time, applicable to Borrower
and (g) any and all regulations promulgated under or pursuant to any of the
foregoing statutes.
"ENVIRONMENTAL LIABILITY" shall mean any order, violation, damage
(including, without limitation, to any Person, property or natural resources),
injury, judgment, penalty or fine, cost of enforcement, cost of remedial
action, clean-up, restoration or any other cost or expense whatsoever,
including reasonable attorneys' fees and disbursements resulting from the
violation or alleged violation of any Environmental Law or the imposition of
any Environmental Lien or otherwise arising under any Environmental Law or
resulting from any common law cause of action asserted by any Person.
"ENVIRONMENTAL LIEN" shall mean a Lien in favor of any Governmental
Authority (a) under any Environmental Law or (b) for any liability or damages
arising from or costs incurred by any Governmental Authority in response to
Release or threatened Release of any Hazardous Material.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and the rules and regulations promulgated thereunder by any
Governmental Authority, as from time to time in effect.
"EURODOLLAR BUSINESS DAY" shall mean a Business Day on which dealings
in Dollars are carried out in the New York interbank Eurodollar market.
"EURODOLLAR LOAN" shall mean a Borrowing or Rollover made hereunder
that is one of a group of Borrowings and Rollovers and that constitutes a
portion of the principal amount under the Notes with respect to which the
interest rate is calculated by reference to the Adjusted Interbank Rate for a
particular Interest Period.
"EURODOLLAR MARGIN" shall mean sixty-two and one-half basis points
(0.625%).
"EURODOLLAR RESERVE REQUIREMENT" shall, on any day, mean that
percentage (expressed as a decimal fraction), if any, that is in effect on such
day, as provided by the Board of Governors of the Federal Reserve System (or
any successor governmental body) applied for determining the maximum reserve
requirements (including without limitation, basic, supplemental, marginal, and
emergency reserves) under Regulation D with respect to "Eurocurrency
liabilities" as currently defined in Regulation D, or under any similar or
successor regulation with respect to Eurocurrency liabilities or Eurocurrency
funding. Each
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determination by the Agent of the Eurodollar Reserve Requirement shall, in the
absence of manifest error, be conclusive and binding.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
ARTICLE X hereof.
"EXCLUDED INVESTOR" shall be (a) any Investor deemed an Excluded
Investor pursuant to SECTION 2.01(c) hereof, and (b) until, if ever, such
Investor has been designated an Included Investor, any Investor which becomes
an Investor subsequent to the date of this Credit Agreement.
"EXPENSES" shall have the meaning assigned to such term in SECTION
12.02(b) hereof.
"FEDERAL FUNDS RATE" shall mean, on any day, a fluctuating interest
rate per annum (rounded upwards, if necessary, to the nearest 1/100th of 1%)
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for such day on such transactions received by the
Agent from three (3) Federal funds brokers of recognized standing selected by
Agent.
"FLOATING BASE LOAN" shall mean a Borrowing or Rollover made
hereunder, that is one of a group of Borrowings and Rollovers, and that
constitutes a portion of the principal amount under the Notes with respect to
which the interest rate is calculated by reference to the Floating Base Rate.
"FLOATING BASE RATE" shall mean, on any date, the lesser of (a) the
greater of (i) the variable rate of interest established, announced or
published from time to time by Agent as its "prime rate," "base rate" or
"general reference rate" of interest for short-term commercial loans in Dollars
to domestic borrowers (which rate of interest may not be the lowest rate
charged by Agent on similar loans), or (ii) the Federal Funds Rate plus one
percent (1%) per annum, or (b) the Maximum Rate. Each change in the Floating
Base Rate shall become effective without prior notice to the Borrower
automatically as of the opening of business on the day of such change in the
Floating Base Rate.
"FUNDING ACCOUNT" shall mean the account maintained by Agent for the
purpose of funding Loans and receiving and disbursing payments hereunder.
"FUNDING DATE" shall mean the fifth, tenth, fifteenth, twentieth or
twenty-fifth calendar day of any month.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" shall mean those generally
accepted accounting principles and practices that are recognized as such by the
American Institute of Certified Public Accountants or by the Financial
Accounting Standards Board or through other
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appropriate boards or committees thereof, and that are consistently applied for
all periods, after the date hereof, so as to properly reflect the financial
position of Borrower, except that any accounting principle or practice required
to be changed by the said Financial Accounting Standards Board (or other
appropriate board or committee of the said Board) in order to continue as a
generally accepted accounting principle or practice may be so changed.
"GENERAL PARTNER" shall have the meaning assigned to such term in the
Commitment Agreement.
"GOVERNMENTAL AUTHORITY" shall mean any foreign governmental
authority, the United States of America, any State of the United States of
America, and any subdivision of any of the foregoing, and any agency,
department, commission, board, authority or instrumentality, bureau or court
having jurisdiction over Borrower, a Qualified Borrower the Investors, any
General Partner, Agent or Lenders, or any of their respective businesses,
operations, assets, or properties.
"GUARANTY AGREEMENT" shall mean an unconditional guaranty of payment
in the form of EXHIBIT J attached hereto, enforceable against Borrower for the
payment of a Qualified Borrower's debt or obligation to Lenders; and "GUARANTY
AGREEMENTS" shall mean such Guaranty Agreements, collectively.
"HAMPSTEAD PRINCIPALS" shall have the meaning given to such term in
the Commitment Agreement.
"HAZARDOUS DISCHARGE" shall mean the occurrence of any event involving
the use, storage, Release, or discharge of any Hazardous Material.
"HAZARDOUS MATERIAL" shall mean any substance, material, or waste
which is or becomes regulated, under any Environmental Law, as hazardous to
public health or safety or to the environment, including, but not limited to,
(a) any substance or material designated as a "hazardous substance" pursuant to
Section 311 of the Clean Water Act, as amended, 33 U.S.C. Section 1251 et seq.,
or listed pursuant to Section 307 of the Clean Water Act, as amended, (b) any
substance or material defined as "hazardous waste" pursuant to Section 1004 of
the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901
et seq. ("RCRA"), (c) any substance or material defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. Section 9001 et seq., or
(d) petroleum, petroleum products and petroleum waste materials.
"HOLDINGS" shall mean Hampstead Holdings, L.P., a Texas limited
partnership.
"INCLUDED INVESTOR" shall mean an Investor who has been named as an
Included Investor by the Agent in writing and who is not an Excluded Investor.
All of the Investors as of the date hereof are hereby designated as "Included
Investors" by Agent.
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"INDEMNITEE" shall have the meaning assigned to such term in SECTION
12.02(b) hereof.
"INTERBANK OFFERED RATE" shall mean, with respect to each Interest
Period, the lesser of (a) the rate of INTEREST PER annum determined by Agent
(in accordance with its customary general practice) to be the arithmetic
average (rounded upwards to the nearest 1/16 of 1%) of the per annum rates at
which deposits in immediately available and freely transferable funds in
Dollars are offered by the Agent (at approximately 11:00 a.m., New York City
time, two (2) Eurodollar Business Days prior to the first day of such Interest
Period) to prime banks in the interbank Eurodollar market for delivery on the
first day of such Interest Period, such deposits being for a period of time
equal or comparable to such Interest Period and in an amount equal to or
comparable to the principal amount of the Eurodollar Loan to which such
Interest Period relates or (b) the Maximum Rate. The Agent shall attempt to
notify Borrower of its determination of the Interbank Offered Rate as soon as
practicable following such determination. If Agent does not furnish a timely
quotation, the provisions of SECTION 4.01 hereof shall apply. Each
determination of the Interbank Offered Rate by Agent shall, in the absence of
manifest error, be conclusive and binding.
"INTEREST OPTIONS" shall mean the Adjusted Interbank Rate and the
Floating Base Rate.
"INTEREST PAYMENT DATE" shall mean (a) the first Business Day of each
calendar month (for interest accrued through the last day of the preceding
month), or such earlier date as any Loan shall mature, by acceleration or
otherwise (but not as a result of prepayment), and (b) with respect to
prepayment of the entire outstanding principal amount of a Loan, the date of
such principal prepayment made hereunder.
"INTEREST PERIOD" shall mean, with respect to any Eurodollar Loan, a
period commencing:
(a) on the borrowing date of such Eurodollar Loan; or
(b) on the termination date of the immediately preceding
Interest Period in the case of a Rollover to a successive Interest
Period as described in SECTION 2.03 hereof,
and ending one, two, three, six or twelve, if available, months thereafter, as
Borrower shall elect in accordance with SECTION 2.03 hereof; provided, however,
that:
(i) any Interest Period which would otherwise end on a day
which is not a Eurodollar Business Day shall be extended to the next
succeeding Eurodollar Business Day UNLESS such Eurodollar Business Day
falls in another calendar month, in which case such Interest Period
shall end on the next preceding Eurodollar Business Day;
(ii) any Interest Period which begins on the last Eurodollar
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, subject to clause (i) above, end
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on the last Eurodollar Business Day of the calendar month at the end
of such Interest Period; and
(iii) if the Interest Period would otherwise end after the
Loan Commitment Termination Date, such Interest Period shall end on
the Loan Commitment Termination Date.
"INTERNAL REVENUE CODE" shall mean the United States Internal Revenue
Code of 1986, as amended.
"INVESTOR" shall mean any Person that is listed as such on EXHIBIT A
attached hereto and incorporated herein by reference (each of which is an
Investor under the Commitment Agreement), and any person admitted as an
Investor in accordance with the terms of the Commitment Agreement, and
"INVESTORS" shall mean all of such Persons, collectively.
"INVESTOR FUNDING PERCENTAGE" shall have the meaning assigned to such
term in the Commitment Agreement.
"LENDER DEFAULT" shall have the meaning assigned to such term in
SECTION 11.13.
"LENDERS" shall have the meaning assigned to such term in the first
paragraph hereof.
"LETTER OF CREDIT" shall mean any letter of credit issued by the
Letter of Credit Issuer pursuant to SECTION 2.08 hereof either as originally
issued or as the same may, from time to time, be amended or otherwise modified.
"LETTER OF CREDIT FEE" shall mean sixty-two and one-half basis points
(0.625%).
"LETTER OF CREDIT ISSUER" shall mean Bankers Trust and any successor
Letter of Credit Issuer appointed pursuant to the terms of this Credit
Agreement.
"LETTER OF CREDIT LIABILITY" shall mean the aggregate undrawn face
amount of all outstanding Letters of Credit plus the amount drawn under Letters
of Credit for which the Letter of Credit Issuer and Lenders, or any one or more
of them, have not yet received payment or reimbursement as required pursuant to
SECTION 2.08 hereof.
"LIEN" shall mean any lien, mortgage, security interest, tax lien,
pledge, encumbrance, or conditional sale or title retention arrangement, or any
other interest in property designed to secure the repayment of indebtedness,
whether arising by agreement or under any statute or law, or otherwise.
"LOAN COMMITMENT" shall mean, for each Lender, the amount set forth
opposite its signature on this Credit Agreement or on its respective Assignment
and Acceptance Agreement,
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as the same may be reduced from time to time by further assignment pursuant to
SECTION 12.08 hereof.
"LOAN COMMITMENT FACTOR" shall mean eighty-six and two/tenths percent
(86.2%).
"LOAN COMMITMENT TERMINATION DATE" shall mean July 3, 1998.
"LOANS" shall mean the group of Eurodollar Loans and Floating Base
Loans made by Lenders to Borrower or any Qualified Borrower pursuant to the
terms and conditions of this Credit Agreement.
"LOAN DOCUMENTS" shall mean this Credit Agreement, the Notes
(including any renewals, extensions, re-issuances and refundings thereof), each
Investor Consent Agreement, the Borrower Assignment Agreement, each Application
and Agreement for Letter of Credit, each of the Collateral Documents, each
Assignment and Acceptance Agreement, each Guaranty Agreement, each Qualified
Borrower Note, and such other agreements and documents, and any amendments or
supplements thereto or modifications thereof, executed or delivered pursuant to
the terms of this Credit Agreement or any of the other Loan Documents.
"MAJORITY LENDERS" shall mean, at any time, Lenders holding an
aggregate Pro Rata Share of at least sixty-six and two-thirds percent (66.67%)
of the Total Loan Commitment.
"MATERIAL ADVERSE EFFECT" shall mean any circumstance or event which
(a) is likely to have any material adverse effect upon the validity,
performance, or enforceability of any of the Loan Documents executed by
Borrower or any Qualified Borrower, or both, (b) is likely to materially impair
the ability of Borrower or any Qualified Borrower, or both, to fulfill their
respective obligations under the Loan Documents, (c) is likely to cause an
Event of Default or any event which, with the giving of notice or lapse of time
or both, becomes an Event of Default, or (d) is likely to impair, impede, or
jeopardize the ability of Borrower or any Qualified Borrower to fulfill its
material obligations under the Commitment Agreement.
"MAXIMUM RATE" shall mean, on any day, the highest rate of interest
(if any) permitted by applicable law on such day.
"NOTES" shall mean the promissory notes issued by Borrower to Lenders
pursuant to SECTION 3.01 hereof and the Qualified Borrower Notes; and "NOTE"
shall mean any one of the Notes.
"OBLIGATION" shall mean all present and future indebtedness,
obligations, and liabilities of Borrower and each Qualified Borrower to
Lenders, and all renewals and extensions thereof, or any part thereof, arising
pursuant to this Credit Agreement or represented by the Notes, each Application
and Agreement for Letter of Credit and each Guaranty Agreement, and all
interest accruing thereon, and reasonable attorneys' fees incurred in the
enforcement or collection thereof (including, without limitation, the allocated
costs of internal counsel), regardless of whether such
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indebtedness, obligations, and liabilities are direct, indirect, fixed,
contingent, joint, several, or joint and several; together with all
indebtedness, obligations, and liabilities of Borrower to Lenders evidenced or
arising pursuant to any of the other Loan Documents, and all renewals and
extensions thereof, or any part thereof.
"ORIGINAL CAPITAL COMMITMENT" shall have the meaning assigned to such
term in the Commitment Agreement, and "ORIGINAL CAPITAL COMMITMENTS" shall mean
the aggregate Original Capital Commitments of all Investors.
"ORIGINAL CREDIT AGREEMENT" shall have the meaning assigned to such
term in the preamble to this Credit Agreement.
"OTHER TAXES" shall have the meaning assigned to such term in SECTION
3.06(b) hereof.
"PARTICIPANT" shall have the meaning assigned to such term in SECTION
12.08(b) hereof.
"PARTNERSHIP" shall have the meaning assigned to such term in the
Commitment Agreement.
"PERSON" shall mean an individual, sole proprietorship, joint venture,
association, trust, estate, business trust, corporation, non-profit
corporation, sovereign government or agency, instrumentality, or political
subdivision thereof, or any similar entity or organization.
"PLAN" shall mean any plan, including both single employer and
multi-employer plans, established or maintained for employees of Borrower or
any member of the Controlled Group to which Section 4021(a) of ERISA applies.
"PRESCRIBED FORMS" shall mean such duly executed form(s) or
statement(s), and in such number of copies, which may, from time to time, be
prescribed by law and which, pursuant to applicable provisions of (a) an income
tax treaty between the United States and the country of residence of a Lender
providing the form(s) or statement(s), (b) the Internal Revenue Code, or (c)
any applicable rule or regulation under the Internal Revenue Code, permit
Borrower to make payments hereunder for the account of a Lender free of
deduction or withholding of income or similar taxes.
"PROCESS AGENT" shall mean The Prentice-Hall Corporation System, Inc.,
15 Columbus Circle, New York, NY 10023.
"PROPERTY" shall mean any Qualified Investment described in item "(a)"
in the definition of "Qualified Investment" in the Commitment Agreement and any
real property, improvements thereon and any leasehold or similar interest in
real property which (i) secures any Qualified Investment described in item
"(b)" in the definition of "Qualified Investment" in the Commitment Agreement,
or (ii) comprises any "asset" referred to in item "(d)" in such
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definition, but does not include properties owned by any entities in which
Borrower or any Qualified Borrower owns debt or equity securities.
"PRO RATA SHARE" shall mean, with respect to each Lender, the
percentage obtained from the fraction, (a) the numerator of which is the Loan
Commitment of such Lender, and (b) the denominator of which is $125,000,000.
"QUALIFIED BORROWER" shall mean any Partnership which has submitted a
Request for Borrowing or a Request for Letter of Credit or which has Loans or
Letter of Credit Liability outstanding, and the indebtedness of which can be
guaranteed by Borrower pursuant to the terms of the Commitment Agreement.
"QUALIFIED BORROWER DEBT" shall mean (a) all "liabilities" which would
be reflected on a balance sheet of Qualified Borrower, prepared in accordance
with Generally Accepted Accounting Principles, (b) all obligations of Qualified
Borrower relating to any capital lease, and (c) all obligations, indebtedness
and liabilities secured by any lien or any security interest on any property or
assets of Qualified Borrower.
"QUALIFIED BORROWER LETTER OF CREDIT NOTE" shall mean a letter of
credit note executed and delivered by a Qualified Borrower, in the form of
EXHIBIT I attached hereto, the payment of which is guaranteed by Borrower
pursuant to Guaranty Agreements.
"QUALIFIED BORROWER NOTES" shall mean the Qualified Borrower
Promissory Notes and the Qualified Borrower Letter of Credit Notes, and
"QUALIFIED BORROWER NOTE" shall mean any one of them.
"QUALIFIED BORROWER PROMISSORY NOTE" shall mean a promissory note
executed and delivered by a Qualified Borrower, in the form of EXHIBIT F
attached hereto, the payment of which is guaranteed by Borrower pursuant to
Guaranty Agreements.
"QUALIFIED INVESTMENT" shall have the meaning assigned to such term in
the Commitment Agreement.
"REGISTER" shall have the meaning assigned to such term in SECTION
12.08(d) hereof.
"REGULATION D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System, from time to time in effect, and shall include any
successor or other regulation relating to reserve requirements applicable to
member banks of the Federal Reserve System.
"RELEASE" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching, or migration into
the environment, or into or out of any Property, including the movement of any
Hazardous Material through or in the air, soil, surface water, groundwater, of
any Property.
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"REMAINING CAPITAL COMMITMENT" shall have the meaning assigned to such
term in the Commitment Agreement.
"REQUEST FOR BORROWING" shall have the meaning assigned to such term
in SECTION 2.03 hereof.
"REQUEST FOR LETTER OF CREDIT" shall have the meaning assigned to such
term in SECTION 2.08 hereof.
"ROLLOVER" shall mean the renewal of any Eurodollar Loan or Floating
Base Loan upon the expiration of the Interest Period with respect thereto,
pursuant to SECTION 2.03 hereof.
"ROLLOVER NOTICE" shall have the meaning assigned to such term in
SECTION 2.03 hereof.
"TAXES" shall have the meaning assigned to such term in SECTION
3.06(a) hereof.
"TOTAL LOAN COMMITMENT" shall mean, on any day during the period
commencing on the date hereof and ending on the Loan Commitment Termination
Date, the lesser of (a) $125,000,000, which is the aggregate amount of all of
the Lenders' Loan Commitments, or (b) the product of the Loan Commitment Factor
times the aggregate Remaining Capital Commitments of all of the Included
Investors on such date.
"TRANSFER" shall mean any sale, mortgage, hypothecation, assignment,
transfer, encumbrance or other disposal of an interest.
1.02. OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Credit Agreement shall have
the above-defined meanings when used in the Notes or any other Loan
Documents or any certificate, report or other document made or
delivered pursuant to this Credit Agreement, unless the context
therein shall otherwise require.
(b) Defined terms used in the singular shall import the
plural and vice versa.
(c) The words "hereof," "herein," "hereunder," and
similar terms when used in this Credit Agreement shall refer to this
Credit Agreement as a whole and not to any particular provisions of
this Credit Agreement.
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ARTICLE II
REVOLVING CREDIT LOAN AND LETTERS OF CREDIT
2.01. THE LOAN COMMITMENT.
(a) LENDERS' LOAN COMMITMENTS. Subject to the terms and
conditions herein set forth, the Lenders agree, during the
Availability Period, to (i) extend to Borrower or any Qualified
Borrower a revolving line of credit, and (ii) cause the Agent to cause
the Letter of Credit Issuer to issue Letters of Credit for the account
of Borrower or any Qualified Borrower.
(b) LIMITATION ON BORROWINGS AND RE-BORROWINGS.
Notwithstanding anything to the contrary herein contained, Lenders
shall not be required to extend any Borrowing or Rollover or cause the
issuance of any Letter of Credit hereunder if:
(i) after giving effect to such Borrowing,
Rollover or issuance of such Letter of Credit, the sum of (A)
the aggregate outstanding and unpaid principal balance of the
Loans PLUS (B) the Letter of Credit Liability would exceed the
Total Loan Commitment;
(ii) such Borrowing would be disbursed within
thirty (30) days before the Loan Commitment Termination Date;
(iii) the expiration date of such Letter of Credit
would be later than thirty (30) days before the Loan
Commitment Termination Date; or
(iv) an Event of Default has occurred and is
continuing, or an event has occurred which, with the giving of
notice or passage of time, or both, would become an Event of
Default.
(c) REDUCTION OF COMMITTED AMOUNT. If any of the
following events shall occur with respect to any Included Investor:
(i) it shall (A) apply for or consent to the
appointment of a receiver, trustee, custodian, intervenor, or
liquidator of itself or of all or substantially all of its
assets, (B) file a voluntary petition in bankruptcy or admit
in writing that it is unable to pay its debts as they become
due, (C) make a general assignment for the benefit of
creditors, (D) file a petition or answer seeking
reorganization or an arrangement with creditors or take
advantage of any Debtor Relief Laws, (E) file an answer
admitting the material allegations of, or consent to, or
default in answering, a petition filed against it in any
bankruptcy, reorganization, or insolvency
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proceeding, or (F) take personal, partnership, corporate or
trust action, as applicable, for the purpose of effecting any
of the foregoing;
(ii) an order, order for relief, judgment, or decree
shall be entered by any court of competent jurisdiction or
other competent authority approving a petition seeking its
reorganization or appointing a receiver, custodian, trustee,
intervenor, or liquidator of it, or of all or substantially
all of its assets, and such order, judgment, or decree shall
continue unstayed and in effect for a period of sixty (60)
days;
(iii) any final judgment(s) for the payment of money in
excess of fifteen percent (15%) of its net worth shall be
rendered against it, and such judgment or judgments shall not
be satisfied or discharged at least ten (10) days prior to the
date on which any of its assets could be lawfully sold to
satisfy such judgment;
(iv) it shall repudiate, challenge, or declare
unenforceable its obligation to make cash contributions to
Borrower or a Partnership pursuant to its Remaining Capital
Commitment or a Capital Call Notice, or shall otherwise
disaffirm the provisions of the Commitment Agreement;
(v) it shall fail to make a cash contribution to
Borrower or a Partnership when required pursuant to a Capital
Call Notice and such failure shall continue for three (3)
Business Days after the date required;
(vi) any representation or warranty made under any
Loan Documents executed by it shall prove to be untrue or
inaccurate in any material respect, as of the date on which
such representation or warranty is made, and such Investor
shall fail to cure the adverse effect of the failure of such
representation or warranty within five (5) days after the
earlier of (A) Borrower's and such Investor's knowledge
thereof (as used in this SECTION, "Borrower's knowledge" shall
mean the current actual knowledge of a Hampstead Principal) or
(B) written notice thereof is delivered from Agent to Borrower
and to such Investor, or if such failure is not reasonably
able to be cured within five (5) days, then, provided Investor
commences the cure within such five (5) day period and
diligently pursues same, within fifteen (15) additional days;
(vii) default shall occur in the performance of any of
the covenants or agreements contained in any of the Loan
Documents executed by it (except the financial covenants in
its Consent to Assignment, which are specifically addressed in
SUBSECTION (IX) below) and such default shall continue uncured
to the satisfaction of Agent for a period of five (5) days
after the earlier of (A) Borrower's and such Investor's
knowledge thereof or (B) written notice thereof has been given
by Agent to Borrower and to such Investor;
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(viii) the occurrence of any circumstances or events
which (A) is likely to materially impair the ability of such
Investor to fulfill its obligations under the Loan Documents
executed by it, or (B) is likely to impair, impede, or
jeopardize the obligation and the liability of such Investor
to fulfill its obligations under the Commitment Agreement;
Agent shall use reasonable efforts to promptly notify Borrower
and such Investor in the event it believes any circumstance or
event described in this SUBSECTION (VIII) has occurred;
PROVIDED, HOWEVER, that Agent shall not be liable to Borrower,
any Investor or any other Person in the event it fails to do
so;
(ix) default shall occur with respect to any of the
financial covenants contained in the Consent to Assignment of
such Investor.
then the Agent may, and, upon the direction of the Majority Lenders,
shall, upon notice to Borrower, treat such Included Investor's
Remaining Capital Commitment as zero (in which case such Investor
shall become an "EXCLUDED INVESTOR") for purposes of (i) calculating
the aggregate Remaining Capital Commitments of the Included Investors
when making future Borrowings or Rollovers or issuing Letters of
Credit, (ii) calculating the Total Loan Commitment, and (iii)
calculating whether a mandatory prepayment is required to be made by
Borrower pursuant to SECTION 2.01(e) hereof. If Agent determines that
an event described in SUBSECTIONS (I) through (IX) above shall have
occurred, Agent will promptly notify Lenders of the same.
(d) REINSTATEMENT OF COMMITTED AMOUNT. If Agent
determines, in its sole discretion, that, after an Investor has become
an Excluded Investor pursuant to SECTION 2.01(c) above, the default or
other adverse event described in SECTION 2.01(c) which caused such
exclusion has been cured or no longer exists, Agent shall, with the
consent of the Majority Lenders, reinstate such Excluded Investor as
an Included Investor.
(e) MANDATORY PREPAYMENT. If, on any day, the sum of (A)
the aggregate outstanding and unpaid principal balance of the Loans
PLUS (B) the Letter of Credit Liability exceeds the Total Loan
Commitment, then Borrower shall pay such excess to the Agent, for the
benefit of Lenders, in immediately available funds, (x) promptly, to
the extent such funds are available in the Capital Commitments
Account, and (y) within twenty-three (23) Business Days to the extent
that it is necessary for Borrower to issue a Capital Call Notice to
fund such required payment.
(f) REDUCTION OF TOTAL COMMITMENT. Borrower shall have
the right, without Agent's consent, to designate any Investor an
Excluded Investor and to consequently treat such Excluded Investor's
Remaining Capital Commitment as zero solely for the purpose of
reducing the Total Loan Commitment, if and only if, after giving
effect thereto, (i) the aggregate outstanding and unpaid principal
balance of the Loans, PLUS the Letter of Credit Liability shall not be
in excess of the Total Loan Commitment as reduced, (ii) unless such
reduction in the Total Loan Commitment would result in a Total Loan
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Commitment of zero (0), the aggregate Investor Funding Percentage of
the Investors is equal to or greater than seventy-five percent (75%)
of the Investor Funding Percentage in effect on the date of this
Credit Agreement and (iii) Borrower shall notify the Agent in writing
of its election to exclude such Investor's Remaining Capital
Commitment thirty (30) days prior to the effective date of such
exclusion. The impact of designating an Investor as an Excluded
Investor shall be only to reduce the Total Loan Commitment, and shall
have no effect on the obligation of such Investor to respond to
Capital Calls or otherwise comply with its obligations under its
Consent Agreement or otherwise.
2.02. REVOLVING CREDIT COMMITMENT. Subject to the terms and
conditions herein set forth, each Lender severally agrees to lend to Borrower
or any Qualified Borrower at any time and from time to time during the
Availability Period sums in an aggregate principal amount up to such Lender's
Loan Commitment at any such time; provided, however, that the outstanding and
unpaid principal balance of such Lender's Pro Rata Share of the Loans shall not
exceed at any one time such Lender's Loan Commitment, as of such date minus
such Lender's Pro Rata Share of the Letter of Credit Liability as of such date.
Subject to the foregoing limitation, Borrower or any Qualified Borrower may
borrow, repay without penalty or premium, and re-borrow hereunder, during the
Availability Period. Each Borrowing pursuant to this SECTION 2.02 shall be
made ratably by Lenders in proportion to such Lender's Pro Rata Share of the
Total Loan Commitment.
2.03. MANNER OF BORROWING. Borrower shall give Agent notice of the
date of each requested Borrowing hereunder, which date shall be a Funding Date
if such requested Borrowing is to be a Eurodollar Loan. Such notice may be by
telephone, if confirmed in writing, facsimile, if confirmed by returned
facsimile, or other written communication (the "REQUEST FOR BORROWING"), and
such Request for Borrowing shall be irrevocable and effective upon receipt by
Agent. Each Request for Borrowing shall be furnished to Agent at least four
(4) Eurodollar Business Days prior to the Funding Date of a Eurodollar Loan,
and at least two (2) Business Days prior to the requested date of funding of a
Floating Base Loan, and must specify the amount of such Borrowing, the Interest
Period therefor in the case of a Eurodollar Loan, whether the Borrowing shall
be a Eurodollar Loan or a Floating Base Loan, and the name of the applicable
Qualified Borrower, if any.
(a) REQUEST FOR BORROWING. Each Request for Borrowing
shall be in the form attached hereto as EXHIBIT C (with blanks
appropriately completed in conformity herewith) and shall be deemed to
constitute a representation and warranty by Borrower that the
representations and warranties set forth in Article VII hereof are
true and correct in all material respects on and as of the date of
such notice (except as Borrower may have otherwise notified Agent
about changes in the matters addressed in SECTIONS 7.12 or 7.17), with
the same force and effect as if made on and as of such date, and that
no Event of Default or condition, event, or act which with the giving
of notice or lapse of time, or both, would constitute an Event of
Default, exists and is continuing at such date. Each Request for
Borrowing shall be irrevocable and binding on Borrower or the
applicable
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Qualified Borrower, as the case may be, and Borrower or the applicable
Qualified Borrower, as the case may be, shall indemnify Lenders
against any cost, loss, or expense incurred by Lenders, or any of
them, as a result of any failure to fulfill, on or before the date
specified for such Borrowing, the conditions to such Borrowing set
forth herein, including, without limitation, any cost, loss, or
expense incurred by reason of the liquidation or re-deployment of the
deposits or other funds acquired by Lenders, or any of them, to fund
the Borrowing to be made by Lenders as a part of such Borrowing when
such Borrowing, as a result of such failure, is not made on such date,
except with respect to a Borrowing for a Floating Base Loan, as to
which Borrower or the applicable Qualified Borrower, as the case may
be, shall not be required to indemnify Lenders against such costs,
losses or expenses incurred by Lenders as a result of such liquidation
or redeployment of funds. A certificate of a Lender setting forth the
amount of any such cost, loss or expense, and the basis for the
determination thereof, shall be delivered to Borrower or the
applicable Qualified Borrower and the Agent and shall, in the absence
of a manifest error, be conclusive and binding.
(b) RATE REQUEST. Prior to making a Request for
Borrowing or delivering a Rollover Notice or a Conversion Notice,
Borrower may (without specifying whether the anticipated Borrowing
shall be a Floating Base Loan or Eurodollar Loan) request that the
Agent provide it with the most recent Floating Base Rate and Adjusted
Interbank Rate available to Lenders. The Agent shall endeavor to
provide such quoted rates to Borrower within two (2) Business Days of
such request.
(c) ROLLOVER. At least four (4) Eurodollar Business Days
prior to the termination of each Eurodollar Interest Period, Borrower
or any applicable Qualified Borrower shall give the Agent written
notice (the "ROLLOVER NOTICE") whether it desires to renew such
Eurodollar Loan and shall designate the Interest Option which shall be
applicable to such Rollover upon the expiration of such Interest
Period. The Rollover Notice shall also specify the length of the
Interest Period selected by the Borrower or a Qualified Borrower with
respect to such Rollover. Each Rollover Notice shall be irrevocable
and effective upon notification thereof to Agent and shall be deemed
to constitute a representation and warranty by Borrower that the
representations and warranties set forth in ARTICLE VII hereof are
true and correct in all material respects on and as of the date of
such notice (except as Borrower may have notified Agent about changes
in the matters addressed in SECTIONS 7.12 or 7.17), with the same
force and effect as if made on and as of such date. If Borrower or a
Qualified Borrower fails to timely give Agent the Rollover Notice, or
if Borrower or a Qualified Borrower fails to repay a Eurodollar Loan
as provided in SECTION 4.01(b)(i), 4.02 or 4.03, then Borrower or the
applicable Qualified Borrower shall be deemed to have elected the
Floating Base Rate as the Interest Option with respect to such Loan
commencing on the expiration of the preceding Interest Period.
(d) CONVERSION. With respect to any Floating Base Loan,
Borrower or the applicable Qualified Borrower shall have the right, on
any Eurodollar Business Day (a "CONVERSION DATE"), to convert all or
any portion of such Floating Base Loan to a
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Eurodollar Loan, by giving the Agent a Conversion Notice of such
selection at least four (4) Eurodollar Business Days prior to such
Conversion Date.
(e) BORROWING LIMITATIONS. Notwithstanding anything to
the contrary contained herein, Borrower and each applicable Qualified
Borrower shall be limited to no more than two (2) outstanding
Eurodollar Loans each, hereunder at any one time during the
Availability Period, and neither Borrower nor any applicable Qualified
Borrower shall have the right to request a Eurodollar Loan if the
interest rate applicable thereto under SECTION 2.06(a) hereof would
exceed the Maximum Rate in effect on the first day of the Interest
Period applicable to such Eurodollar Loan.
(f) NOTICE TO LENDERS BY AGENT. The Agent shall promptly
notify each Lender of receipt of a Borrowing Notice or Rollover
Notice, the amount of the Borrowing and such Lender's Pro Rata Share
thereof, the date the Borrowing is to be made, the Interest Option
selected, the Interest Period selected, if applicable, and the
applicable rate of interest.
(g) ASSESSMENT OF BORROWING PROCEDURE. If, at any time,
Agent determines, in its sole discretion, that the manner of borrowing
described in this SECTION and in SECTION 2.04, in particular, without
limitation, the number of Eurodollar Loans permitted and the minimum
amount of each Loan, causes a burdensome degree of administrative
complexity, Agent shall so notify Borrower, and Agent and Borrower
shall, and Borrower shall cause each qualified Borrower to, amend the
terms hereof to reduce or otherwise resolve the administrative burden.
(h) JOINT BORROWINGS. Agent shall have the sole
authority to permit Qualified Borrowers to borrow a Eurodollar Loan or
Eurodollar Loans jointly and severally, such joint and several
Borrowing to be made pursuant to appropriate Qualified Borrower
Promissory Notes, Guaranty Agreements and other Loan Documents.
2.04. MINIMUM LOAN AMOUNTS. Each Eurodollar Loan shall be in an
amount of at least $5,000,000, and, if higher, an integral multiple of
$1,000,000 and each Floating Base Loan shall be in an amount of at least
$500,000, provided, however, that Borrower and the Qualified Borrowers may
borrow an aggregate of six (6) Eurodollar Loans in any one twelve-month period,
each in an amount less than $5,000,000, but greater than $1,000,000.
2.05. FUNDING.
(a) LENDER FUNDING. Each Lender shall make the proceeds
of its Pro Rata Share of each Borrowing available to the Agent at its
Funding Account for the account of Borrower or a Qualified Borrower on
the borrowing date in immediately available funds, and upon
fulfillment of all applicable conditions set forth herein, the Agent
shall deposit such proceeds in immediately available funds in
Borrower's or the applicable Qualified Borrower's account maintained
at Bankers Trust. If Borrower or a Qualified
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Borrower desires such funds to be wire transferred to another account
on the same date, Borrower or the applicable Qualified Borrower shall
deliver all applicable information by 11:00 a.m. (New York City time)
on the date of the required Borrowing. The failure of any Lender to
advance the proceeds of its Pro Rata Share of any Borrowing required
to be advanced hereunder shall not relieve any other Lender of its
obligation to advance the proceeds of its Pro Rata Share of any
Borrowing required to be advanced hereunder. The liabilities and
obligations of each of the Lenders hereunder shall be several and not
joint, and neither the Agent nor any Lender shall be responsible for
the performance by any other Lender of its obligations hereunder.
Each of the Lenders hereunder shall be liable to the Borrower and any
Qualified Borrower only for the amount of its respective Loan
Commitment. In the event that the conditions precedent to a Borrowing
are not met and the Borrowing is not advanced by the Agent, Agent
shall return to each Lender its Pro Rata Share of the Borrowing
previously paid by such Lender to Agent.
(b) FAILURE OF LENDER TO FUND. Unless the Agent has been
notified by any Lender before 2:00 p.m. (New York City time) on the
date of a proposed Borrowing that such Lender does not intend to make
available to the Administrative Agent on such date such Lender's
portion of such Borrowing, the Agent may assume that such Lender will
make such amount available to the Agent on such date and the Agent may
(but shall not be obligated to) make available to the Borrower or
Qualified Borrower a corresponding amount. If and to the extent any
Lender shall not have made its full amount available to the Agent and
the Agent in such circumstances has made available to the Borrower or
Qualified Borrower such amount, that Lender shall on the next Business
Day following the date of such Borrowing make such amount available to
the Agent, together with interest at the Federal Funds Rate for and
determined as of each day during such period. A certificate of the
Agent submitted to any Lender with respect to amounts owing under this
SECTION 2.05 shall be conclusive and binding, absent manifest error.
If such amount is so made available, such payment to the Agent shall
constitute such Lender's Loan on the borrowing date for all purposes
of this Agreement. If such amount is not made available to the Agent
on the next Business Day following the borrowing date, the Agent shall
notify the Borrower or Qualified Borrower of such failure to fund and,
immediately upon such demand, if funds are available (and not
otherwise specifically committed for some other purpose) in the
Capital Commitments Account, and otherwise, within twenty-three (23)
Business Days after, demand therefor by the Agent, the Borrower or
Qualified Borrower shall pay such amount to the Agent's account,
together with interest thereon for each day elapsed since the date of
such Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing.
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2.06. INTEREST RATE.
(a) RATE. The unpaid principal of each Floating Base
Loan shall bear interest at a rate per annum which shall from day to
day be equal to the Floating Base Rate in effect from day to day. The
unpaid principal of each Eurodollar Loan shall bear interest at a rate
per annum which shall be equal to the Adjusted Interbank Rate for the
applicable Interest Period.
(b) CHANGE IN RATE; PAST DUE AMOUNTS; CALCULATIONS OF
INTEREST. Each change in the rate of interest under each Note shall
become effective, without prior notice to Borrower, automatically as
of the opening of business of Agent on the date of said change.
Interest on Loans shall be calculated from the date of Borrowing on
the basis of actual days elapsed in a year consisting of 360 days. If
any principal of, or interest on, any Note is not paid when due, then
(in lieu of the interest rate provided in SECTION 2.06(a) above) such
past due principal and interest on the Note shall bear interest at the
Default Rate.
2.07. DETERMINATION OF RATE. The Agent shall determine each
interest rate applicable to the Borrowings hereunder. The Agent shall give
prompt notice to the Borrower or the applicable Qualified Borrower of each rate
of interest so determined, and its determination thereof shall be conclusive
and binding in the absence of manifest error.
2.08. LETTERS OF CREDIT.
(a) LETTER OF CREDIT COMMITMENT. Subject to the terms
and conditions hereof, on any Business Day during the Availability
Period, the Agent shall cause the Letter of Credit Issuer to issue
such Letters of Credit in such aggregate face amount as Borrower or a
Qualified Borrower may request, each such Letter of Credit to have an
expiration date not later than one year from the date of issuance,
provided that after giving effect to the issuance of any such Letter
of Credit, the Letter of Credit Liability will not exceed the lesser
of (i) the remainder of (x) the Total Loan Commitment as of such date
MINUS (y) the aggregate outstanding unpaid principal balance of the
Loans as of such date, or (ii) fifty percent (50%) of the Total Loan
Commitment. In the event that Agent is not the Letter of Credit
Issuer, any extension of a Letter of Credit must be approved by Agent.
(b) REQUEST. Each application for Letters of Credit
("REQUEST FOR LETTER OF CREDIT") shall be submitted to the Agent
substantially in the form attached hereto as EXHIBIT D with respect to
Borrower, and EXHIBIT G with respect to a Qualified Borrower (with
blanks appropriately completed in conformity herewith), provided,
however, that the form of the Letter of Credit and related annexes and
notices may be amended as agreed between the requesting Borrower or
Qualified Borrower and the Letter of Credit Issuer, together with an
Application and Agreement for Letter of Credit for each Letter of
Credit Issuer on or before 11:00 a.m. (New York City time) at least
four (4) Business
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Days prior to the requested date of issuance. Upon each such
application Borrower shall be deemed to have automatically made to the
Agent, each Lender and the Letter of Credit Issuer the following
representations and warranties:
(i) As of the date of issuance of the Letter of
Credit requested, each representation and warranty set forth
in ARTICLE VII hereof, is true and correct in all material
respects (except as Borrower may have otherwise notified Agent
about changes in the matters addressed in SECTIONS 7.12 or
7.17), both immediately before and after the issuance of the
requested Letter of Credit, as though such representations and
warranties were made on and as of such date; and there exists
no Event of Default or event which with the giving of notice
or lapse of time, or both, would result in an Event of
Default.
(ii) Following the issuance of the requested Letter of
Credit, the Letter of Credit Liability will not exceed the
lesser of (A) the remainder of (x) the Total Loan Commitment
as of such date MINUS (y) the aggregate outstanding unpaid
principal balance of the Loans as of such date, or (B) fifty
percent (50%) of the Total Loan Commitment.
(c) PARTICIPATION BY LENDERS. Each Lender shall and does
hereby participate ratably with the Letter of Credit Issuer in each
Letter of Credit issued and outstanding hereunder to the extent of its
Pro Rata Share of the Letter of Credit Liability with respect to each
such Letter of Credit, and shall share in all rights and obligations
resulting therefrom, including, without limitation (i) the right to
receive from the Agent its Pro Rata Share of any reimbursement of the
amount of each draft drawn under each Letter of Credit, (ii) the right
to receive from the Agent its Pro Rata Share of the Letter of Credit
fee pursuant to SECTION 2.13 hereof, (iii) the right to receive from
the Agent its additional costs pursuant to SECTION 2.08(e) hereof, and
(iv) the obligation to pay the beneficiary of any Letter of Credit its
Pro Rata Share of the Letter of Credit Liability of such Letter of
Credit upon proper presentation to the Letter of Credit Issuer by
promptly delivering to the Agent when it receives notice of any
payment by the Agent or the Letter of Credit Issuer to any beneficiary
of any Letter of Credit in immediately available funds, its Pro Rata
Share thereof.
(d) PAYMENT OF LETTER OF CREDIT. In consideration for
the issuance by the Letter of Credit Issuer of the Letters of Credit,
Borrower hereby authorizes, empowers, and directs the Agent, for the
benefit of Lenders and the Letter of Credit Issuer, to disburse
directly to the Letter of Credit Issuer, with notice to Borrower, in
immediately available funds an amount equal to the face amount of each
draft drawn under each Letter of Credit plus all interest, costs,
expenses, and fees due to the Letter of Credit Issuer pursuant to the
applicable Application and Agreement for Letter of Credit, which
amounts shall be due and payable by Lenders to the Letter of Credit
Issuer on the Business Day on which the Letter of Credit Issuer honors
any such draft or incurs or is owed any such interest, costs, expenses
or fees. The Agent will promptly notify
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Borrower of any disbursements made by Lenders pursuant to the terms
hereof, provided that the failure to give such notice will not affect
the validity of the disbursement. Any such disbursement made by
Lenders to the Letter of Credit Issuer on account of a Letter of
Credit issued for the account of Borrower shall initially be deemed to
be a Floating Base Loan pursuant to SECTION 2.03 hereof, and Borrower
shall be deemed to have given to the Agent, in accordance with the
terms and conditions of SECTION 2.03, a Request for Borrowing with
respect thereto. Any such disbursement made by Lenders to the Letter
of Credit Issuer on account of a Letter of Credit issued for the
account of a Qualified Borrower shall be a Floating Base Loan pursuant
to the terms of the related Qualified Borrower Letter of Credit Note.
The Agent and Lenders may conclusively rely on the Letter of Credit
Issuer as to the amount due to the Letter of Credit Issuer by reason
of any draft under a Letter of Credit or fees due to the Letter of
Credit Issuer under any Letter of Credit or any Application and
Agreement for Letter of Credit.
(e) INCREASED COSTS. Borrower, or Qualified Borrower, as
the case may be, shall pay to the Agent, immediately upon such demand,
if funds are available (and not otherwise specifically committed for
some other purpose) in the Capital Commitments Account, and otherwise,
within twenty-three (23) Business Days after demand therefor, amounts
sufficient to compensate the Letter of Credit Issuer and the Lenders
for any and all costs resulting from any law or rule or regulation or
any guideline or request or in the interpretation thereof by any
Governmental Authority, central bank or comparable agency charged with
the administration of such law or rule or regulation or guideline or
in Generally Accepted Accounting Principles or regulatory accounting
principles which directly or indirectly (i) impose or modify or deem
applicable any reserve, special deposit or similar requirement against
letters of credit issued by the Letter of Credit Issuer or imposed
upon any Lender by virtue of its participation arrangement provided in
SECTION 2.08(c) hereof, (ii) increase the amount of capital required
or expected to be maintained or funded by the Letter of Credit Issuer
or any Lender and applicable to banks generally, or (iii) impose on
the Letter of Credit Issuer or any Lender, some condition regarding
this Credit Agreement or any Application and Agreement for Letter of
Credit, and the result of any event referred to in (i), (ii) or (iii)
above shall be to increase the cost to the Letter of Credit Issuer of
issuing or maintaining the Letters of Credit, or to increase the cost
to a Lender of maintaining its participation arrangement as provided
in SECTION 2.08(c) hereof. In addition, Borrower, or a Qualified
Borrower, as the case may be, shall pay to the Agent on demand,
amounts to compensate the Letter of Credit Issuer, and the Lenders for
any additional costs resulting from any change after the date hereof
in any law or regulation or in the interpretation thereof by any
Governmental Authority charged with the administration of such law or
regulation or in Generally Accepted Accounting Principles or
regulatory accounting principles, the effect of which shall be to
further increase the costs to the Letter of Credit Issuer of issuing
or maintaining the Letters of Credit or to further increase the cost
to a Lender of maintaining its participation arrangement as provided
in SECTION 2.08(c) hereof. A certificate as to such increased costs,
which states the basis of calculation thereof, submitted by the Letter
of Credit Issuer or an affected Lender to the Borrower, or a
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Qualified Borrower, as the case may be, shall be conclusive, absent
manifest error, as to the amount thereof. Such increase in cost
shall, with respect to the Letter of Credit Issuer, be based upon a
reasonable allocation of the Letter of Credit Issuer's aggregate costs
related to the Letters of Credit and, with respect to each affected
Lender be based upon the actual cost incurred. Agent will use
reasonable efforts to promptly notify Borrower of any additional cost
reimbursement obligations of which it is aware, whether or not any
Letters of Credit are then outstanding or under application.
(f) ACCELERATION OF UNDRAWN AMOUNTS. Should the Agent
demand payment of the Obligation hereunder prior to the Loan
Commitment Termination Date pursuant to SECTION 5.02 or SECTION 10.02
hereof, the Agent, by written notice to the Borrower, may take one or
more of the following actions (a) declare the obligation of the
Lenders to cause Letters of Credit to be issued pursuant to SECTION
2.01 hereof and this SECTION 2.08 terminated, whereupon such
obligations shall forthwith terminate without any other notice of any
kind, or (b) demand that the Borrower pay to the Agent for deposit in
a segregated interest-bearing cash collateral account, as security for
the Obligation, an amount equal to the Letter of Credit Liability then
outstanding at the time such notice is given, whereupon such amount
shall forthwith be due and payable into such account, without
presentment, demand, protest or any other notice of any kind, all of
which are hereby waived. Unless otherwise required by law, upon the
full and final payment of the Obligation, the Agent shall return to
Borrower any amounts remaining in said cash collateral account.
2.09. PAYMENT OF GUARANTY AGREEMENT. In consideration of Lenders'
agreement to advance funds to a Qualified Borrower pursuant to SECTIONS 2.02
and 2.03 hereof, to cause Letters of Credit to be issued for the account of a
Qualified Borrower pursuant to SECTION 2.08 hereof, and to accept Guaranty
Agreements in support thereof, Borrower hereby authorizes, empowers and directs
the Agent, for the benefit of Lenders, to disburse directly to Lenders, with
notice to Borrower, in immediately available funds an amount equal to the
amount due and owing under any Qualified Borrower Note or Guaranty Agreement,
together with all interest, costs, expenses and fees due to Lenders pursuant
thereto in the event the Agent shall have not received payment of such
Qualified Borrower Note when due. The Agent shall have no obligation to make
any such disbursement. The Agent will promptly notify Borrower of any
disbursement made to the Lenders pursuant to the terms hereof, provided that
the failure to give such notice shall not affect the validity of the
disbursement. Any such disbursement made by the Agent to Lenders shall be
deemed to be a Floating Base Loan pursuant to SECTION 2.03 hereof, and Borrower
shall be deemed to have given to the Agent in accordance with the terms and
conditions of SECTION 2.03 a Request for Borrowing with respect thereto. The
Agent may conclusively rely on Lenders as to the amount due Lenders under any
Qualified Borrower Note or Guaranty Agreement.
2.10. USE OF PROCEEDS, LETTERS OF CREDIT AND GUARANTY AGREEMENTS.
The proceeds of the Loans and the Letters of Credit shall be used by Borrower
only for working capital, to pay for the costs and expenses of Borrower's
day-to-day businesses (including, without
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limitation, any costs and expenses under this Credit Agreement), and by each
Qualified Borrower in connection with the making or pursuit of Qualified
Investments, and its and any General Partner's costs and expenses of its
day-to-day businesses (including, without limitation, any costs and expenses
under this Credit Agreement). Neither Lenders nor Agent shall have any
liability, obligation, or responsibility whatsoever with respect to Borrower's
or a Qualified Borrower's use of the proceeds of the Loans, the Letters of
Credit or execution and delivery of the Guaranty Agreements, and neither
Lenders nor Agent shall be obligated to determine whether or not Borrower's or
a Qualified Borrower's use of the proceeds of the Loans or the Letters of
Credit are for purposes permitted under the Commitment Agreement. Nothing,
including, without limitation, any Borrowing, any Rollover, any issuance of any
Letter of Credit, or acceptance of any Guaranty Agreement or other document or
instrument, shall be construed as a representation or warranty, express or
implied, to any party by Lenders or Agent as to whether any investment by
Borrower qualifies as an Investment or is otherwise permitted by the terms of
the Commitment Agreement.
2.11. AGENT FEES. Borrower and the Qualified Borrowers shall pay to
the Agent fees in consideration of the administration of the Total Loan
Commitment and its issuance and fronting of Letters of Credit, which fees shall
be payable in amounts and on the dates agreed to between Borrower and Agent in
letter agreements dated December 15, 1993.
2.12. LOAN COMMITMENT FEE. In addition to the payments provided for
in ARTICLE III hereof, Borrower shall pay to the Agent, for the account of each
Lender a commitment fee during the Availability Period at the rate of one
quarter of one percent (0.25%) per annum, on the average daily amount of such
Lender's Pro Rata Share of the Total Loan Commitment which was unused (through
the extension of Loans or the issuance of Letters of Credit) during the
immediately preceding calendar quarter of Borrower calculated on the basis of
actual days elapsed in a year consisting of 360 days, and payable in arrears on
the first Business Day of each calendar quarter (for such amounts accrued
through the last day of the immediately preceding calendar quarter). For
purposes of this SECTION, (a) the average daily amount of the Total Loan
Commitment which was unused shall equal (i) the average daily Total Loan
Commitment during a calendar quarter of Borrower, less (ii) the average daily
utilization of the Total Loan Commitment during such calendar quarter; (b) the
average daily Total Loan Commitment during a calendar quarter shall equal the
quotient of (i) the aggregate of the Total Loan Commitment on each day during
such calendar quarter, divided by (ii) the number of days in such calendar
quarter; and (c) the average daily utilization of the Total Loan Commitment
during a calendar quarter of Borrower shall equal the quotient of (i) the
aggregate on each day during such calendar quarter of (A) the aggregate
outstanding and unpaid principal balance of the Loans, plus (B) the Letter of
Credit Liability, divided by (ii) the number of days in such calendar quarter.
Borrower and Lenders acknowledge and agree that the commitment fees payable
hereunder are bona fide commitment fees and are intended as reasonable
compensation to Lenders for committing to make funds available to Borrower as
described herein and for no other purposes.
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2.13. LETTER OF CREDIT FEE. Borrower or the appropriate Qualified
Borrower shall pay to the Agent, for the benefit of the Lenders, in
consideration for the issuance of Letters of Credit hereunder, a per annum fee
equal to the Letter of Credit Fee multiplied by the available amount of each
Letter of Credit, calculated on the actual number of days elapsed in a year
consisting of 360 days, and payable in arrears on the first Business Day of
each calendar quarter (for amounts accrued through the last Business Day of the
preceding calendar quarter), commencing on the first Business Day of the
calendar quarter after the calendar quarter in which such Letter of Credit is
issued and continuing on the first Business Day of each calendar quarter
thereafter during which such Letter of Credit is outstanding.
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ARTICLE III
NOTES AND NOTE PAYMENTS
3.01. REVOLVING CREDIT NOTES. The Loans to be made by Lenders to
Borrower hereunder shall be evidenced by promissory notes of Borrower. Each
Note issued by Borrower shall (a) be dated the date hereof, or the date of such
Lender's Assignment and Acceptance Agreement, as applicable, (b) be in the
amount of such Lender's Loan Commitment, (c) be payable to the order of such
Lender at the principal office of the Agent, (d) bear interest in accordance
with SECTION 2.06 hereof, and (e) be in the form of EXHIBIT B attached hereto
(with blanks appropriately completed in conformity herewith). Borrower agrees,
from time to time, upon the request of the Agent or any affected Lender, to
reissue new Notes, in accordance with the terms and in the form heretofore
provided, to any Lender and any Assignee of such Lender in accordance with
SECTION 12.08(c) hereof, in renewal of and substitution for the Note previously
issued by Borrower to the affected Lender.
3.02. PAYMENT OF PRINCIPAL OF THE NOTES. The unpaid principal
amount of each of the Notes, together with all accrued but unpaid interest
thereon, unless otherwise accelerated pursuant to the terms hereof, shall be
due and payable on the Loan Commitment Termination Date.
3.03. PAYMENT OF INTEREST ON THE NOTES.
(a) INTEREST. Interest on the Notes shall be due and
payable on each Interest Payment Date (for interest accrued through
the last day of the month preceding the Interest Payment Date), and on
the Loan Commitment Termination Date.
(b) DIRECT DISBURSEMENT. If, at any time, the Agent
shall not have received on the date due, any payment of interest upon
the Loans or any fee described herein, Agent shall disburse funds from
the Capital Commitments Account to Lenders to the extent available
therein for payment of any such amount and thereafter may, within the
limits of the Total Loan Commitment, disburse to Lenders, without
notice to or the consent of Borrower, in immediately available funds
an amount equal to the interest or fee due to Lenders, which
disbursement (if made from other than the Capital Commitments Account)
shall be deemed to be a Floating Base Loan pursuant to SECTION 2.03
hereof, and Borrower shall be deemed to have given to Lenders in
accordance with the terms and conditions of SECTION 2.03 a Request for
Borrowing with respect thereto.
3.04. PAYMENTS ON THE NOTES. All payments of principal of, and
interest on, the Notes, of fees and of all other amounts payable under this
Credit Agreement by Borrower and Qualified Borrowers to or for the account of
Lenders, or any of them, shall be made by Borrower and Qualified Borrowers to
Agent before 11:00 a.m. (New York City time) in federal or other immediately
available funds to the Funding Account. Funds received after 11:00 a.m.
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(New York City time) shall be treated for all purposes as having been received
by Agent on the first Business Day next following receipt of such funds.
Except as provided in SECTION 12.08 hereof, each Lender shall be entitled to
receive its Pro Rata Share of each payment received by the Agent hereunder for
the account of Lenders on the Notes. Each payment received by Agent hereunder
for the account of a Lender shall be promptly distributed by the Agent to such
Lender. Agent and each Lender hereby agree that payments to the Agent by
Borrower and Qualified Borrowers of principal of, and interest on, the Notes,
of fees and of all other amounts payable under this Credit Agreement by
Borrower and Qualified Borrowers to or for the account of Lenders in accordance
with the terms of the Credit Agreement, the Notes and the other Loan Documents
shall constitute satisfaction of Borrower's and Qualified Borrowers'
obligations with respect to any such payments, and Agent shall indemnify and
hold harmless Borrower and Qualified Borrowers from any claims asserted by any
Lender in connection with the Agent's duty to timely distribute and apportion
such payments to the Lenders in accordance with this SECTION. Each payment of
principal and interest shall be applied to such of the Loans as Borrower or the
appropriate Qualified Borrower shall direct by notice to be received by Agent
on or before the date of such payment. Notwithstanding the foregoing to the
contrary, during the existence of an Event of Default, any amounts paid or made
available to pay the Obligation shall be applied to the Obligation in the order
and manner as Agent and Lenders shall determine.
3.05. PREPAYMENTS. Borrower or any Qualified Borrower may, without
premium or penalty so long as no Event of Default has occurred, upon four (4)
Business Days' prior written notice to the Agent, prepay the principal of the
Notes then outstanding, in whole or in part, at any time or from time to time;
provided, however, that if Borrower or any Qualified Borrower shall prepay the
principal of any Eurodollar Loan on any date other than the last day of the
Interest Period applicable thereto, Borrower or such Qualified Borrower, as the
case may be, shall make the payments required by SECTION 4.05 hereof.
Notwithstanding any provision to the contrary in this SECTION 3.05, if Borrower
or a Qualified Borrower desires to prepay a Floating Base Loan, provided no
Event of Default has occurred under this Credit Agreement, Borrower or a
Qualified Borrower shall only be required to provide written notice thereof to
the Agent of such prepayment twenty-four (24) hours in advance of such payment.
Prepayments of the entire outstanding principal of a Loan shall be made
together with accrued interest thereon. Any interest accrued at the time of a
partial prepayment of any Loan shall be paid on the next succeeding Interest
Payment Date.
3.06 TAXES.
(a) Any and all payments by Borrower or a Qualified Borrower
hereunder and under the Notes shall be made free and clear of and
without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, EXCLUDING, in the case of each Lender, (i) taxes
imposed on its income, and franchise taxes
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imposed on it, by the jurisdiction under the laws of which the Lender
is organized or any taxing authority or other political subdivision
thereof and, in the case of each Lender, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction of each
Lender's applicable lending office or any political subdivision
thereof and (ii) any taxes imposed by the United States of America by
means of withholding at the source if and to the extent that such
taxes shall be in effect and shall be applicable, on the date hereof,
to payments to be made to each Lender (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities
being hereinafter referred to as "TAXES"). If Borrower or a Qualified
Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to a Lender, (A) the sum payable
shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional
sums payable under this SECTION 3.06) such Lender receives an amount
equal to the sum it would have received had no such deductions been
made, (B) Borrower or such Qualified Borrower, as the case may be,
shall make such deductions and (C) Borrower or such Qualified
Borrower, as the case may be, shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with
applicable law.
(b) Notwithstanding anything to the contrary contained in
this Credit Agreement, Borrower and each Qualified Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or
withhold income or other similar taxes imposed by the United States of
America from interest, fees or other amounts payable hereunder for the
account of any Lender (without the payment of increased amounts to
such Lender pursuant to clause (a) above) other than a Lender (i)
which is a domestic corporation (as such term is defined in Section
7701 of the Internal Revenue Code) for Federal income tax purposes or
(ii) which has the Prescribed Forms on file with Borrower to the
extent deduction or withholding of such taxes is not required as a
result of the filing of such Prescribed Forms, provided that if
Borrower, or any Qualified Borrower, as the case may be, shall so
deduct or withhold any such taxes, it shall provide a statement to
such Lender, setting forth the amount of such taxes so deducted or
withheld, the applicable rate and any other information or
documentation which such Lender may reasonably request for assisting
such Lender to obtain any allowable credits or deductions for the
taxes so deducted or withheld in the jurisdiction or jurisdictions in
which such Lender is subject to tax.
(c) In addition, Borrower and each Qualified Borrower, as
the case may be, agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, otherwise with respect to,
this Credit Agreement (hereinafter referred to as "OTHER TAXES").
(d) Borrower and each Qualified Borrower, as the case may
be, will indemnify each Lender for the full amount of Taxes or Other
Taxes (including, without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this SECTION 3.06) paid
by a Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto except as a result
of the negligence or willful misconduct of such Lender, whether or not
such Taxes or Other Taxes were
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correctly or legally asserted. Payment pursuant to this
indemnification shall be made immediately upon demand therefor, if
funds are available (and not otherwise specifically committed for some
other purpose) in the Capital Commitments Account, and otherwise
within twenty-three (23) Business Days from the date such Lender makes
written demand therefor.
(e) Within thirty (30) days after the date of any payment
of Taxes by or at the direction of Borrower or a Qualified Borrower,
as the case may be, Borrower or such Qualified Borrower, as the case
may be, will furnish to the applicable Lender, at its address referred
to in SECTION 12.03 hereof, the original or a certified copy of a
receipt evidencing payment thereof.
(f) Each Lender shall endeavor in good faith (consistent
with its internal policies and legal and regulatory restrictions) to
select a jurisdiction for its lending office or change the
jurisdiction for its lending office, as the case may be, so as to
avoid the imposition of any Taxes or Other Taxes or to eliminate the
amount of any such additional amounts which may thereafter accrue;
PROVIDED that no such selection or change of the jurisdiction for its
lending office shall be made if, in the reasonable judgment of such
Lender, such selection or change would be disadvantageous to such
Lender.
(g) Without prejudice to the survival of any other
agreement of Borrower and each Qualified Borrower hereunder, the
agreements and obligations of Borrower and the Qualified Borrowers
contained in this SECTION 3.06 shall survive the payment in full of
the Obligation.
3.07. LENDING OFFICE. Each Lender may (a) designate its principal
office or a foreign branch, subsidiary or Affiliate of such Lender as its
lending office (and the office to whose accounts payments are to be credited)
for any Eurodollar Loan, (b) designate its principal office or a domestic
branch, subsidiary or Affiliate as its lending office (and the office to whose
accounts payments are to be credited) for any Floating Base Loan and (c) change
its lending offices from time to time by notice to the Agent and the Borrower.
In such event, such Lender shall continue to hold the Note evidencing its loans
for the benefit and account of such foreign branch, subsidiary or Affiliate.
Each Lender shall be entitled to fund all or any portion of its Loan Commitment
in any manner it deems appropriate, but for the purposes of this Credit
Agreement such Lender shall, regardless of such Lender's actual means of
funding, be deemed to have funded its Loan Commitment in accordance with the
Interest Option, from time to time, selected by the Borrower or a Qualified
Borrower for such Borrowing period.
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ARTICLE IV
SPECIAL PROVISIONS FOR EURODOLLAR LOANS
4.01. INADEQUACY OF EURODOLLAR LOAN PRICING. If with respect to an
Interest Period for any Eurodollar Loan the Agent determines that deposits in
Dollars (in the applicable amounts) are not being offered by Agent in the
applicable interbank Eurodollar market for such Interest Period, then the Agent
shall forthwith give notice thereof to Borrower or the applicable Qualified
Borrower, whereupon until the Agent notifies Borrower or the applicable
Qualified Borrower that the circumstances giving rise to such suspension no
longer exist, (a) the obligation of Lenders to make Eurodollar Loans shall be
suspended and (b) Borrower or the applicable Qualified Borrower shall, at their
sole options, either (i) repay in full the then outstanding principal amount of
such Eurodollar Loan, together with accrued interest thereon on the last day of
the then current Interest Period applicable to such Eurodollar Loan or (ii)
convert such Eurodollar Loan to a Floating Base Loan in accordance with the
terms of this Credit Agreement on the last day of the then current Interest
Period applicable to each such Eurodollar Loan.
4.02. ILLEGALITY. If, after the date of this Credit Agreement, the
adoption of any applicable law, rule, or regulation, or any change therein, or
any change in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation
or administration thereof, or compliance by any Lender (or its Eurodollar
lending office) with any request or directive (whether or not having the force
of law) of any such Governmental Authority, central bank, or comparable agency
shall make it unlawful or impossible for any Lender (or its Eurodollar lending
office) to make, maintain, or fund any type of Eurodollar Loans, then such
Lender shall so notify the Agent, and the Agent shall forthwith give notice
thereof to the Borrower and the applicable Qualified Borrower and the Lenders.
Before giving notice to Agent pursuant to this SECTION, such Lender shall
designate a different Eurodollar lending office, if such designation will avoid
the need for giving such notice and will not be otherwise disadvantageous to
any material extent to such Lender (as determined in good faith by such
Lender). Upon receipt of such notice, Borrower or the applicable Qualified
Borrower shall, at their sole options, either (a) repay in full the then
outstanding principal amount of the portion of such Eurodollar Loan made by the
affected Lenders, together with accrued interest thereon, or (b) convert the
portion of such Eurodollar Loan made by the affected Lenders to a Floating Base
Loan on either (i) the last day of the then current Interest Period applicable
to each such Eurodollar Loan if such Lender may lawfully continue to maintain
and fund such Eurodollar Loan to such day or (ii) immediately if such Lender
may not lawfully continue to fund and maintain such Eurodollar Loan to such
day.
4.03. INCREASED COSTS FOR EURODOLLAR LOANS. If any Governmental
Authority, central bank, or other comparable authority shall at any time
impose, modify, or deem applicable any law, rule, regulation or guideline
regarding capital adequacy or reserve (including, without limitation, any
imposed by the Board of Governors of the Federal Reserve System or pursuant to
or arising out of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital
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Standards" but excluding any reserve requirement included in the Eurodollar
Reserve Requirement of each Lender (or its Eurodollar lending office)), special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by any Lender (or its Eurodollar lending
office), or shall impose on any Lender (or its Eurodollar lending office) or
the applicable interbank Eurodollar market any other condition affecting any
type of its Eurodollar Loan, its Note, or the obligation to make any type of
Eurodollar Loan; and the result of any of the foregoing is to increase the cost
to any Lender of making or maintaining any type of Eurodollar Loan, or to
reduce the amount of any sum received or receivable by Lender under this Credit
Agreement or under its Note with respect to any Eurodollar Loan, by an amount
reasonably deemed by such Lender to be material, then, immediately upon such
demand, if funds are available (and not otherwise specifically committed for
some other purpose) in the Capital Commitments Account, and otherwise, within
twenty-three (23) Business Days after demand by such Lender (with a copy to the
Agent), Borrower shall pay or shall cause the applicable Qualified Borrower to
pay to such Lender, such additional amount or amounts as will compensate such
Lender for such increased cost or reduction. Each Lender will promptly notify
Borrower and Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Lender to compensation pursuant to this
SECTION and, in connection with Eurodollar Loans, will, to the extent possible,
designate a different Eurodollar lending office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not be
otherwise disadvantageous to any material extent to such Lender (as determined
in good faith by such Lender). A certificate of such Lender claiming
compensation under this SECTION and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. If any Lender demands compensation under this SECTION, then
Borrower or other Qualified Borrower, as the case may be, may at any time, upon
at least four (4) Eurodollar Business Days' prior notice to Agent either (a)
repay in full the then outstanding principal amount of such Eurodollar Loan,
together with accrued interest thereon to the date of prepayment or (b) convert
such Eurodollar Loan to a Floating Base Loan in accordance with the provisions
of this Credit Agreement; provided however, that Borrower or other Qualified
Borrower, as the case may be, shall be liable for any Consequential Loss
arising pursuant to such actions.
4.04. EFFECT ON EURODOLLAR LOANS AND FLOATING BASE LOANS. If notice
has been given pursuant to SECTIONS 4.01 or 4.02 hereof requiring the then
outstanding Eurodollar Loans of Lenders to be repaid or converted, then unless
and until such Lender notifies the Borrower and Agent that the circumstances
giving rise to such repayment no longer apply, all Borrowings of that Lender
shall be Floating Base Loans. If such Lender notifies Borrower and the Agent
that the circumstances giving rise to such repayment no longer apply, Borrower
or any Qualified Borrower may thereafter select Borrowings from that Lender and
any other Lender to be Eurodollar Loans in accordance with the terms hereof.
4.05. PAYMENTS NOT AT END OF INTEREST PERIOD. If Borrower or any
Qualified Borrower makes any payment of principal with respect to any
Eurodollar Loan on any day other than the last day of an Interest Period
applicable to such Eurodollar Loan, then Borrower or such Qualified Borrower
shall pay to the Agent for the account of such Lender after demand by such
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Lender (with a copy to the Agent) the Consequential Loss incurred by such
Lender as a result of the timing of such payment. A certificate of such Lender
setting forth the basis for the determination of the amount of Consequential
Loss shall be delivered to Borrower or the applicable Qualified Borrower and
the Agent and shall, in the absence of manifest error, be conclusive and
binding. Any conversion of a Eurodollar Loan to a Floating Base Loan on any
day other than the last day of the Interest Period for such Eurodollar Loan
shall be deemed a payment for purposes of this SECTION.
4.06. INDEMNITY. Without prejudice to any other provisions of this
ARTICLE IV, Borrower and each Qualified Borrower shall indemnify each Lender
against any loss or expense which such Lender may sustain or incur as a
consequence of any default by Borrower or such Qualified Borrower in making any
payment when due of any amount due under this Credit Agreement or in making any
scheduled Borrowing, Rollover, or conversion under this Credit Agreement, in
respect of any Eurodollar Loan, including, but not limited to, any loss of
profit, premium or penalty incurred by such Lender in respect of funds borrowed
by it for the purpose of making, funding or maintaining such Eurodollar Loan,
as determined by such Lender in the exercise of its sole but reasonable
discretion. A certificate as to any such loss or expense shall be promptly
submitted by such Lender to Borrower or the applicable Qualified Borrower (with
a copy to the Agent) and shall, in the absence of manifest error, be conclusive
and binding as to the amount thereof.
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ARTICLE V
SECURITY
5.01. LIENS AND SECURITY INTEREST.
(a) CAPITAL COMMITMENTS AND CAPITAL CALLS. To secure
performance by Borrower of the payment of each Note and the
Obligation, Borrower shall grant to the Agent, for the benefit of each
of the Lenders, a first, exclusive, and prior security interest and
lien in and to the Remaining Capital Commitments, the Capital
Commitments Account, the Capital Call Notices and any other rights to
call for additional capital contributions as contemplated in ARTICLE
IV of or otherwise by the Commitment Agreement, pursuant to an
assignment agreement (the "BORROWER SECURITY AGREEMENT") (in
substantially the form attached hereto as EXHIBIT K) as amended by an
amendment agreement in substantially the form attached hereto as
EXHIBIT K-1, an assignment of bank account (in substantially the form
attached hereto as EXHIBIT L), financing statements, and other
documents satisfactory to Agent.
(b) INVESTOR INTERESTS. To secure performance by each
Investor of its obligation to make Capital Contributions pursuant to
Capital Calls made by Borrower or the Agent, Borrower shall request
that each Investor acknowledge the pledge and assignment of the
Remaining Capital Commitments of the Investors and the right to make
Capital Calls by Borrower to the Agent, for the benefit of Lenders,
consent to the terms of the Borrower Assignment Agreement and the
other Loan Documents, and waive certain terms of the Commitment
Agreement, by execution of a consent to assignment (a "CONSENT
AGREEMENT") (in substantially the form attached hereto as EXHIBIT M).
(c) COLLATERAL DOCUMENTS. The assignment agreements,
financing statements, and other documents and instruments from time to
time executed and delivered pursuant to this Credit Agreement and any
documents or instruments amending or supplementing the same are
collectively referred to herein as the "COLLATERAL DOCUMENTS."
5.02. COLLATERAL ACCOUNT; CAPITAL CALLS.
(a) COLLATERAL ACCOUNT. In order to secure further the
payment of the Notes and the performance by Borrower of the Obligation
and to effect and facilitate Lenders' right of offset, Borrower shall
require that all Investors wire-transfer to Bankers Trust Company, 280
Park Avenue-23 West, New York, New York 10017, ABA No. 021001033,
Account No. 99-799-800, for further credit to: Hampstead Investment
Partners Funding Corp., Account No. 42-850222, reference Hampstead
Capital Commitments Account (the "CAPITAL COMMITMENTS ACCOUNT"), all
monies or sums paid or to be paid by any Investors to the capital of
Borrower as Capital Contributions as and when Capital Contributions
are called pursuant to the Capital Call Notices. In addition,
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Borrower shall, upon receipt, deposit in the Capital Commitments
Account any payments and monies which Borrower receives directly from
the Investors as Capital Contributions.
(b) CAPITAL CALLS. In order that Lenders may monitor the
collateral and the Capital Commitment, Borrower shall not initiate or
make any Capital Call or otherwise request, notify, or demand that any
Investor make any Capital Contribution, except through the Agent
acting on behalf of Lenders. At least three (3) Business Days prior
to any proposed Capital Call Notice, Borrower shall furnish to the
Agent (a) the original Capital Call Notice for each Investor from whom
a Capital Contribution is being sought (substantially in the form
attached hereto as EXHIBIT O with any blanks appropriately completed),
and (b) self-addressed, stamped or otherwise prepaid envelopes to each
such Investors for purposes of mailing such Capital Call Notices.
Borrower and the Agent on behalf of Lenders shall jointly verify that
the Capital Call Notices have been manually signed by Borrower, and
manually acknowledged by the Agent on behalf of Lenders. The Agent
shall use its reasonable efforts to acknowledge and deliver (via the
method directed by Borrower) such Investors Notices within two (2)
Business Days of receipt, with copies to Borrower. Any attempted
Capital Call Notice by Borrower other than through the Agent as
contemplated above shall be void as respect to either Borrower's or
Investors' obligations under this SECTION 5.02 or the other Loan
Documents.
(c) NO LIABILITY OF AGENT OR LENDERS. Notwithstanding
anything to the contrary herein contained, it is expressly understood
and agreed that, other than the obligation to use its reasonable
efforts to acknowledge and mail the Capital Call Notices as described
above, neither the Agent nor Lenders undertake any duties,
responsibilities, or liabilities with respect to the Capital Call
Notices. Neither the Agent nor Lenders shall be required to refer to
the Commitment Agreement, or take any other action with respect to any
other matter that might arise in connection with the Commitment
Agreement, or any Capital Call Notice. Neither the Agent nor Lenders
have any duty to determine or inquire into any happening or occurrence
or any performance or failure of performance of any of the Investors.
Neither the Agent nor Lenders has any duty to inquire into the use,
purpose, or reasons for the making of any Capital Call Notice or the
investment or use of the proceeds thereof.
(d) USE OF ACCOUNT; CAPITAL CALLS BY AGENT. Borrower may
withdraw funds from the Capital Commitments Account, with the approval
of the Agent, at any time or from time to time, so long as there does
not exist an Event of Default or an event which, with the giving of
notice or lapse of time or both, would become an Event of Default.
Borrower hereby irrevocably authorizes and directs Lenders,
acting through the Agent, to charge from time to time the Capital
Commitments Account and any other accounts of Borrower at any Lender
for amounts due to Lenders or any of them hereunder and under the
Notes. The Agent, on behalf of Lenders, is hereby authorized, in the
name of Lenders or the name of the Borrower, at any time or from time
to time during the existence of an Event of Default, to notify any or
all parties obligated to
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Borrower with respect to the Capital Commitments to make all payments
due or to become due thereon directly to the Agent on behalf of
Lenders, at a different account number, or to initiate one or more
Capital Calls of the Capital Commitments in order to pay the Loans or
the Letter of Credit Liability, or both. With or without such general
notification, and during the existence of an Event of Default, the
Agent, on behalf of Lenders, may, subject to the limitations in the
Consent Agreements, (i) take or bring in Borrower's name or that of
Lenders all steps, actions, suits, or proceedings deemed by the Agent
necessary or desirable to effect possession or collection of payments,
(ii) complete any contract or agreement of Borrower in any way deemed
necessary or desirable by the Agent to collect any of the Capital
Calls, (iii) make allowances or adjustments related to the Capital
Calls, or (iv) compromise any claims related to the Capital Calls.
Regardless of any provision hereof, in the absence of gross negligence
or willful misconduct by Agent or Lenders, neither the Agent nor
Lenders shall ever be liable for failure to collect or for failure to
exercise diligence in the collection of all or part of the Capital
Calls or Capital Commitments or sums due or paid thereon, nor shall
they be under any obligation whatsoever to anyone by virtue of the
security interests and liens relating to the Capital Calls or Capital
Commitments.
(e) EVENT OF DEFAULT. During the existence of an Event
of Default, issuance by the Agent on behalf of Lenders of a receipt to
any Person obligated to pay any Capital Commitment to Borrower shall
be a full and complete release, discharge, and acquittance to such
Person to the extent of any amount so paid to the Agent for the
benefit of the Lenders. The Agent, on behalf of Lenders, is hereby
authorized and empowered, and during the existence of an Event of
Default, on behalf of Borrower, to endorse the name of Borrower upon
any check, draft, instrument, receipt, instruction, or other document
or items relating to the Capital Calls or Capital Contributions,
including, but not limited to, all items evidencing payment upon a
Capital Commitment of any Person to Borrower coming into Agent's
possession, and to receive and apply the proceeds therefrom in
accordance with the terms hereof. The Agent on behalf of Lenders is
hereby granted an irrevocable Power of Attorney, which is coupled with
an interest, to execute all checks, drafts, receipts, instruments,
instructions, or other documents, agreements, or items relating to the
Capital Calls or Capital Contributions on behalf of Borrower, either
before or after demand of payment on the Notes but only during the
occurrence of an Event of Default, as shall be deemed by the Agent to
be necessary or advisable, in the sole discretion, reasonably
exercised, of the Agent, to protect the security interests and liens
in the Capital Commitments or the repayment of the Obligation, and
neither the Agent nor Lenders shall incur any liability in connection
with or arising from its exercise of such Power of Attorney in the
absence of any gross negligence or willful misconduct by Agent or any
such Lenders.
The application by Lenders of such funds to the Obligation shall,
unless the Agent shall agree otherwise in writing, be made in the
order and manner determined by Agent and Lenders in their discretion.
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(f) NO REPRESENTATIONS. Neither the Agent nor Lenders
shall be deemed to make at any time any representation or warranty as
to the validity of any Capital Call Notice nor shall the Agent or
Lenders be accountable for Borrower's or any Qualified Borrower's use
of the proceeds of any Capital Call.
5.03. LENDER OFFSET. In addition to the rights granted to the Agent
and Lenders under SECTION 5.02 hereof, Borrower and each Qualified Borrower
hereby grants to each Lender a right of offset, to secure repayment of the
Obligation, upon any and all monies, securities, or other property of Borrower
or such Qualified Borrower and the proceeds therefrom, now or hereafter held or
received by or in transit to Lenders, from or for the account of Borrower or
such Qualified Borrower, whether for safekeeping, custody, pledge,
transmission, collection, or otherwise, and also upon any and all deposits
(general or specified) and credits of Borrower or such Qualified Borrower, and
any and all claims of Borrower or such Qualified Borrower against Lenders at
any time existing. Lenders are hereby authorized at any time and from time to
time during the occurrence of an Event of Default, without notice to Borrower
or such Qualified Borrower, to offset, appropriate, apply, and enforce such
right of offset against any and all items hereinabove referred to against the
Obligation. Borrower shall be deemed directly indebted to Lenders in the full
amount of the Obligation, and Lenders shall be entitled to exercise the rights
of offset provided for above.
5.04. AGREEMENT TO DELIVER ADDITIONAL COLLATERAL DOCUMENTS.
BORROWER shall deliver such security agreements, financing statements,
assignments, and other collateral documents (all of which shall be deemed part
of the Collateral Documents), in form and substance reasonably satisfactory to
the Agent, as the Agent acting on behalf of Lenders may reasonably request from
time to time for the purpose of granting to, or maintaining or perfecting in
favor of Lenders, first and exclusive security interests in any of the Capital
Call Notices, Capital Calls and Capital Commitments, together with other
assurances of the enforceability and priority of Lenders' liens and assurances
of due recording and documentation of copy of the Collateral Documents, as the
Agent may reasonably require to avoid material impairment of the liens and
security interests granted or purported to be granted pursuant to this ARTICLE
V.
5.05. SUBORDINATION OF ALL BORROWER CLAIMS. As used herein, the
term "BORROWER CLAIMS" shall mean all debts and liabilities of an Investor to
Borrower or any General Partner, whether such debts and liabilities now exist
or are hereafter incurred or arise, or whether the obligations of such Investor
thereon be direct, contingent, primary, secondary, several, joint and several,
or otherwise, and irrespective of whether such debts or liabilities be
evidenced by note, contract, open account, or otherwise, and irrespective of
the Person or Persons in whose favor such debts or liabilities may, at their
inception, have been, or may hereafter be created, or the manner in which they
have been or may hereafter be acquired by Borrower or any General Partner. The
Borrower Claims shall include without limitation all rights and claims of
Borrower against an Excluded Investor under Section 4.5 or otherwise of the
Commitment Agreement.
Borrower agrees that any liens, security interests, judgment liens,
charges, or other encumbrances upon an Investor's assets securing payment of
the Borrower Claims, shall be and
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remain inferior and subordinate in right and payment to any liens, security
interests, judgment liens, charges, or other encumbrances upon an Investor's
assets securing such Investor's obligations and liabilities to Lenders pursuant
to any of the Collateral Documents executed by such Investor, regardless of
whether such encumbrances in favor of Borrower or Lenders presently exist or
are hereafter created or attach. Without the prior written consent of the
Agent, unless Lenders have released such Investor in writing, Borrower shall
not, at any time during the existence of an Event of Default, subject to the
terms herein limiting Borrower's rights to take the following actions without
Agent approval, (a) exercise or enforce any creditor's or partnership right it
may have against an Investor, (b) foreclose, repossess, sequester, or otherwise
take steps or institute any action or proceedings (judicial or otherwise,
including without limitation, the commencement of, or joinder in, any
liquidation, bankruptcy, rearrangement, debtor's relief, or insolvency
proceeding) to enforce any liens, mortgages, deeds of trust, security interest,
collateral rights, judgments or other encumbrances on assets of such Investor
held by Borrower, or (c) exercise any rights or remedies against an Investor
under Section 4.5 or otherwise of the Commitment Agreement.
Upon the Agent's notification to Borrower that the Total Loan
Commitment has been reduced pursuant to SECTION 2.01(c) hereof and until the
mandatory prepayment pursuant to SECTION 2.01(e) hereof in connection
therewith, if any, shall be paid and satisfied in full, Borrower shall not
receive or collect, directly or indirectly, from any Investor any amount upon
the Borrower Claims.
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ARTICLE VI
CONDITIONS PRECEDENT TO LENDING
6.01. OBLIGATION OF LENDERS. The obligation of Lenders to honor the
terms and conditions herein is subject to the Agent's receipt of the following:
(a) NOTES. Duly executed Notes, drawn to the order of
each Lender.
(b) AMENDMENT TO SECURITY AGREEMENT. The duly executed
Amendment to Security Agreement.
(c) BORROWER'S CERTIFICATE. A certificate signed by the
Borrower, stating that: (i) all of the representations and warranties
contained in ARTICLE VII hereof and, to the extent made by Borrower or
a Qualified Borrower, the other Loan Documents are true and correct in
all material respects as of such date (except as Borrower may have
notified Agent about changes in the matters addressed in SECTIONS 7.12
or 7.17); and (ii) no event has occurred and is continuing, or would
result from the Borrowing or issuance of the Letters of Credit, as
applicable, which constitutes an Event of Default or which, with the
lapse of time or the giving of notice or both, would constitute an
Event of Default.
(d) CERTIFICATE CONCERNING COMMITMENT AGREEMENT. A
certificate affirming that no amendments of any kind have been made to
the Commitment Agreement since December 10, 1993 and that no defaults
have occurred thereunder.
(e) CERTIFIED COPY OF BORROWER FORMATION DOCUMENTS. A
copy of Borrower's (i) certificate of incorporation, (ii) certificate
of existence and good standing issued by the Secretary of State of
Texas, (iii) bylaws, certified by the Secretary or Assistant Secretary
of the Borrower as being true and complete, and (iv) certificates of
qualification, if applicable, and good standing (or other similar
instruments) from the Secretary of State of Texas and each of the
States wherein Borrower must be qualified to do business as a foreign
corporation.
(f) RESOLUTIONS OF BORROWER. Resolutions of Borrower
approving the execution, delivery and performance of this Credit
Agreement, the Notes, and the other Loan Documents to be executed or
delivered in connection with this Amended and Restated Credit
Agreement, and the transactions contemplated herein and therein, duly
adopted by the Board of Directors of the Borrower, and accompanied by
a certificate of the Secretary of the Borrower stating that such
resolutions are true and correct, have not been altered or repealed,
and are in full force and effect.
(g) INCUMBENCY CERTIFICATE. A signed certificate of the
appropriate Person of Borrower which shall certify the names of the
officers authorized to sign each of the
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Loan Documents and the other documents or certificates to be delivered
pursuant to the Loan Documents, together with the true signatures of
each such officer. The Agent may conclusively rely on such
certificate until it shall receive a further certificate cancelling or
amending the prior certificate and submitting the signatures of the
officers named in such further certificate.
(h) QUALIFIED BORROWER DOCUMENTS. Replacement and
confirmations of Qualified Borrower Notes, General Partner Security
Agreements, Guaranty Agreements, legal opinions and such other
documents as may reasonably be required by Agent and its counsel, from
each Qualified Borrower with outstanding Obligations on the date
hereof.
(i) ADDITIONAL INFORMATION. Such other information and
documents as may reasonably be required by Agent and its counsel.
6.02. INITIAL ADVANCE. The obligation of Lenders to advance the
initial Borrowing hereunder or cause the issuance of the initial Letter of
Credit hereunder is subject to the condition precedent that, on or before the
earlier of the date of such Borrowing or issuance of such Letter of Credit, as
the case may be, the Agent shall have received or designated, as the case may
be, the following:
(a) COLLATERAL DOCUMENTS. The Collateral Documents
required to be delivered under SECTION 5.01 hereof, in form and
substance satisfactory to Agent, duly executed by the appropriate
Persons, together with evidence that (to the extent necessary) the
Collateral Documents have been duly filed, evidenced, and documented,
that all recording taxes and fees have been paid, and that all other
actions have been taken in the manner necessary to establish, protect,
preserve, and perfect, as a valid lien or security interest the liens
granted to Lenders thereunder, including, without limitation, the
filing of financing statements, in form and substance satisfactory to
Agent, subject only to any rights of Borrower in the Commitment
Agreement, which rights are subordinate to Lenders' pursuant to
SECTION 5.05 hereof.
(b) INVESTORS' AUTHORIZATION AND FINANCIAL AND DISCLOSURE
INFORMATION. From each of the Investors, in form and substance
satisfactory to Agent, (i) incumbency certificates evidencing the
authority of the party executing the Collateral Documents, certified
by the secretary or other appropriate individual of such Investor,
(ii) such other evidence as Agent may reasonably require regarding the
due authorization, execution and enforceability of the Collateral
Documents, including, without limitation, favorable opinions from
counsel for each Investor, as to such matters concerning such Investor
as Agent may reasonably require, and (iii) such financial and
disclosure information regarding each Investor as Agent may deem, in
its sole and absolute discretion, necessary and adequate.
(c) OPINION OF COUNSEL TO BORROWER. A favorable opinion
of Munsch Hardt Kopf Harr & Dinan, P.C., counsel for Borrower,
substantially in the form of EXHIBIT O
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attached hereto. Borrower hereby directs Munsch Hardt Kopf Harr &
Dinan, P.C. to prepare and deliver such legal opinion to Agent on
behalf of Lenders.
(d) OPINION OF HAYNES AND BOONE. A favorable opinion of
Haynes and Boone, L.L.P., counsel for Agent, as to the enforceability
of the Loan Documents to be executed or delivered in connection with
this Amended and Restated Credit Agreement under the laws of the State
of New York.
6.03. ALL LOANS TO BORROWER. The obligation of Lenders to make each
Borrowing (including without limitation the initial Borrowing) hereunder is
subject to the conditions that:
(a) REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties contained in ARTICLE VII hereof shall
be true and correct in all material respects (except as Borrower may
have notified Agent about changes in the matters addressed in SECTIONS
7.12 or 7.17) on the date of the such Borrowing.
(b) NO DEFAULT. No event shall have occurred and be
continuing, or would result from the Borrowing, which constitutes an
Event of Default or which, with the lapse of time or the giving of
notice or of both, would constitute an Event of Default.
(c) REQUEST FOR ADVANCE. The Agent shall have received a
Request for Borrowing.
6.04. BORROWER LETTERS OF CREDIT. The obligation of Lenders to
cause the issuance of Letters of Credit hereunder for the account of Borrower
(including, without limitation, the initial Letter of Credit) is subject to the
conditions that:
(a) REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties contained in ARTICLE VII hereof shall
be true and correct in all material respects (except as Borrower may
have notified Agent about changes in the matters addressed in SECTIONS
7.12 or 7.17) on the date of issuance of such Letter of Credit.
(b) NO DEFAULT. No event shall have occurred and be
continuing, or would result from the issuance of the Letters of
Credit, which constitutes an Event of Default or which, with the lapse
of time or the giving of notice or both, would constitute an Event of
Default.
(c) REQUEST FOR LETTERS OF CREDIT. The Agent shall have
received from Borrower a Request for Letter of Credit.
(d) APPLICATION. The Agent shall have received an
Application and Agreement for Letter of Credit executed by the
Borrower and shall have countersigned the same.
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6.05. ALL LOANS TO QUALIFIED BORROWERS. The obligation of Lenders
to make each Borrowing to a Qualified Borrower (including, without limitation,
the initial Loan to a Qualified Borrower) is subject to the conditions that:
(a) REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties contained in ARTICLE VII hereof shall
be true and correct in all material respects (except as Borrower may
have notified Agent about changes in the matters addressed in SECTIONS
7.12 or 7.17) on the date of delivery of the initial Qualified
Borrower Promissory Note and Guaranty Agreement.
(b) NO DEFAULT. No event shall have occurred and be
continuing, or would result from the delivery of the Qualified
Borrower Promissory Note or acceptance of the Guaranty Agreement,
which constitutes an Event of Default or which, with the lapse of time
or the giving of notice or both, would constitute an Event of Default.
(c) QUALIFIED BORROWER PROMISSORY NOTE. The Agent shall
have received, whether at the time of the initial advance or
otherwise, a duly executed Qualified Borrower Promissory Note
complying with the terms and provisions hereof.
(d) AUTHORIZATIONS OF QUALIFIED BORROWER. The Agent
shall have received, whether at the time of the initial advance or
otherwise, from the Qualified Borrower appropriate evidence of the
authorization of the Qualified Borrower approving the execution,
delivery and performance of the Qualified Borrower Promissory Note,
duly adopted by Qualified Borrower, as required by law or agreement,
and accompanied by a certificate of an authorized Person of such
Qualified Borrower stating that such authorizations are true and
correct, have not been altered or repealed and are in full force and
effect.
(e) GUARANTY AGREEMENT. The Agent shall have received,
whether at the time of the initial advance or otherwise, from Borrower
a duly executed Guaranty Agreement complying with the terms and
provisions hereof.
(f) OPINION OF COUNSEL TO QUALIFIED BORROWER. The Agent
shall have received, whether at the time of the initial advance or
otherwise, a favorable opinion of counsel for the Qualified Borrower,
in form and substance satisfactory to Agent and addressed to the
Agent, that (i) the Qualified Borrower is validly existing under the
laws of the state of its formation and naming the jurisdictions in
which the Qualified Borrower is qualified or licensed to do business,
(ii) the subject Qualified Borrower Promissory Note has been duly
authorized, executed and delivered by the Qualified Borrower,
(iii) the subject Qualified Borrower Promissory Note is a valid and
binding obligation and agreement of such Qualified Borrower, and that
the choice of law provisions of the Promissory Note would be enforced
by the courts of the state of Qualified Borrower's formation, and (iv)
neither the execution or delivery by Qualified Borrower of the subject
Qualified Borrower Promissory Note, the performance by such Qualified
Borrower of
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its obligations thereunder, nor the compliance by Qualified Borrower
with the terms and provisions thereof, will (A) contravene any
provision of law, statute, rule or regulation of the State of
formation of such Qualified Borrower or the United States of America
to which Qualified Borrower is subject, or conflict with, or result in
any breach of, any material agreement, mortgage, indenture, deed of
trust or other instrument known to counsel (after due inquiry) to
which Qualified Borrower or its properties may be subject, or result
in the creation of any mortgage, lien, pledge or encumbrance in
respect of any properties of Qualified Borrower known to counsel
(after due inquiry), (B) contravene any judgment, decree, license,
order or permit known to counsel (after due inquiry) that are
applicable to Qualified Borrower, or (C) violate any provision of the
organizational documents of Qualified Borrower. Each Qualified
Borrower hereby directs its counsel to prepare and deliver such legal
opinion to Agent for the benefit of Lenders.
(g) OPINION OF COUNSEL TO BORROWER. The Agent shall have
received, whether at the time of the initial advance or otherwise, a
favorable opinion of counsel for Borrower, in form and substance
satisfactory to Agent and addressed to the Agent, that the subject
Guaranty Agreement (i) has been duly authorized, executed and
delivered by Borrower, and (ii) is a valid and binding obligation and
agreement of Borrower, and that the choice of law provisions of the
Guaranty would be enforced by the courts of the state of Qualified
Borrower's formation. Borrower hereby directs its counsel to prepare
and deliver such legal opinion to Agent for the benefit of Lenders.
(h) OPINION OF HAYNES AND BOONE. The Agent shall have
received, whether at the time of the initial advance or otherwise, a
favorable opinion of Haynes and Boone, L.L.P., counsel for Agent, as
to the enforceability of the Promissory Note and Guaranty under the
laws of the State of New York.
(i) ADDITIONAL INFORMATION. The Agent shall have
received such other information and documents as may reasonably be
required by Agent and its counsel.
6.06. QUALIFIED BORROWER LETTERS OF CREDIT. The obligation of
Lenders to cause the issuance of Letters of Credit hereunder for the account of
a Qualified Borrower (including, without limitation, the initial Letter of
Credit issued to a Qualified Borrower) is subject to the conditions that:
(a) REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties contained in ARTICLE VII hereof shall
be true and correct in all material respects (except as Borrower may
have notified Agent about changes in the matters addressed in SECTIONS
7.12 or 7.17) on the date of issuance of such Letter of Credit.
(b) NO DEFAULT. No event shall have occurred and be
continuing, or would result from the issuance of the Letter of Credit,
delivery of the Qualified Borrower Letter of Credit Note, or
acceptance of the Guaranty Agreement, which constitutes an Event of
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Default or which, with the lapse of time or the giving of notice or
both, would constitute an Event of Default.
(c) REQUEST FOR LETTERS OF CREDIT. The Agent shall have
received from Qualified Borrower a Request for Letter of Credit.
(d) APPLICATION. The Agent shall have received an
Application and Agreement for Letter of Credit executed by Qualified
Borrower, and shall have countersigned the same.
(e) QUALIFIED BORROWER LETTER OF CREDIT NOTE. The Agent
shall have received, whether at the time of initial advance or
otherwise, a duly executed Qualified Borrower Letter of Credit Note
complying with the terms and provisions hereof.
(f) AUTHORIZATIONS OF QUALIFIED BORROWER. The Agent
shall have received, whether at the time of initial advance or
otherwise, from the Qualified Borrower appropriate evidence of the
authorization of the Qualified Borrower approving the execution,
delivery and performance of the Application and Agreement for Letter
of Credit, the Request for Letter of Credit, and the Qualified
Borrower Letter of Credit Note, duly adopted by Qualified Borrower, as
required by law or agreement, and accompanied by a certificate of an
authorized Person of such Qualified Borrower stating that such
authorizations are true and correct, have not been altered or repealed
and are in full force and effect.
(g) GUARANTY AGREEMENT. The Agent shall have received
whether at the time of initial advance or otherwise, from Borrower a
duly executed Guaranty Agreement complying with the terms and
provisions hereof.
(h) OPINION OF COUNSEL TO QUALIFIED BORROWER. The Agent
shall have received whether at the time of initial advance or
otherwise, a favorable opinion of counsel for the Qualified Borrower,
in form and substance satisfactory to Agent and addressed to the
Agent, that (i) the Qualified Borrower is validly existing under the
laws of the state of its formation and naming the jurisdictions in
which the Qualified Borrower is qualified or licensed to do business,
(ii) the subject Application and Agreement for Letter of Credit,
Request for Letter of Credit, and the Qualified Borrower Letter of
Credit Note has each been duly authorized, executed and delivered by
the Qualified Borrower, (iii) the subject Application and Agreement
for Letter of Credit, Request for Letter of Credit, and the Qualified
Borrower Note is each a valid and binding obligation and agreement of
such Qualified Borrower, and that the choice of law provisions of the
Application and Agreement for Letter of Credit, Request for Letter of
Credit and the Qualified Borrower Letter of Credit Note would be
enforced by the courts of the state of Qualified Borrower's formation,
and (iv) neither the execution or delivery by Qualified Borrower of
the subject Application and Agreement for Letter of Credit, Request
for Letter of Credit, or the Qualified Borrower Letter of Credit Note,
the performance by
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such Qualified Borrower of its obligations thereunder, nor the
compliance by Qualified Borrower with the terms and provisions
thereof, will (A) contravene any provision of law, statute, rule or
regulation of the State of formation of such Qualified Borrower or the
United States of America to which Qualified Borrower is subject, or
conflict with, or result in any breach of, any material agreement,
mortgage, indenture, deed of trust or other instrument known to
counsel (after due inquiry) to which Qualified Borrower or its
properties may be subject, or result in the creation of any mortgage,
lien, pledge or encumbrance in respect of any properties of Qualified
Borrower known to counsel (after due inquiry), (B) contravene any
judgment, decree, license, order or permit known to counsel (after due
inquiry) that are applicable to Qualified Borrower, or (C) violate any
provision of the organizational documents of Qualified Borrower. Each
Qualified Borrower hereby directs its counsel to prepare and deliver
such legal opinion to Agent for the benefit of Lenders.
(i) OPINION OF COUNSEL TO BORROWER. The Agent shall have
received whether at the time of initial advance or otherwise, a
favorable opinion of counsel for Borrower, in form and substance
satisfactory to Agent and addressed to the Agent, that the subject
Guaranty Agreement (i) has been duly authorized, executed and
delivered by Borrower, and (ii) is a valid and binding obligation and
agreement of Borrower. Borrower hereby directs its counsel to prepare
and deliver such legal opinion to Agent for the benefit of Lenders.
(j) OPINION OF HAYNES AND BOONE. The Agent shall have
received, whether at the time of initial advance or otherwise, a
favorable opinion of Haynes and Boone, L.L.P., counsel for Agent, as
to the enforceability of the Application and Agreement for Letter of
Credit, Request for Letter of Credit, the Qualified Borrower Letter of
Credit Note and the Guaranty Agreement under the laws of the State of
New York.
(k) ADDITIONAL INFORMATION. The Agent shall have
received such other information and documents as may reasonably be
required by Agent and its counsel.
6.07. OPINION ACCORD. All opinions to be rendered by counsel under
this ARTICLE VI shall be governed by and interpreted in accordance with the
Legal Opinion Accord of the ABA Section of Business (1991).
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
To induce Lenders to make the Loans and cause the issuance of Letters
of Credit hereunder, Borrower represents and warrants to Lenders that:
7.01. ORGANIZATION AND GOOD STANDING OF BORROWER. Borrower is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Texas, has the requisite corporate power and authority to
own its properties and assets and to carry on its business as now conducted,
and is qualified to do business in the State of Texas and in every jurisdiction
where the nature of the business conducted or the property owned or leased
requires such qualification and where the failure to be so qualified to do
business would have a Material Adverse Effect.
7.02. AUTHORIZATION AND POWER. Borrower has the corporate power and
requisite authority to execute, deliver, and perform its obligations under this
Credit Agreement, the Notes, and the other Loan Documents to be executed by it;
Borrower is duly authorized to, and has taken all corporate action necessary to
authorize Borrower to execute, deliver, and perform its obligations under this
Credit Agreement, the Notes, and such other Loan Documents and are and will
continue to be duly authorized to perform its obligations under this Credit
Agreement, the Notes, and such other Loan Documents.
7.03. NO CONFLICTS OR CONSENTS. None of the execution and delivery
of this Credit Agreement, the Notes, or the other Loan Documents, the
consummation of any of the transactions herein or therein contemplated, or the
compliance with the terms and provisions hereof or with the terms and
provisions thereof, will contravene or conflict with any provision of law,
statute, or regulation to which Borrower is subject or any judgment, license,
order, or permit applicable to Borrower or any indenture, mortgage, deed of
trust, or other agreement or instrument to which Borrower is a party or by
which Borrower may be bound, or to which Borrower may be subject. No consent,
approval, authorization, or order of any court or Governmental Authority or
third party is required in connection with the execution and delivery by
Borrower of the Loan Documents or to consummate the transactions contemplated
hereby or thereby.
7.04. ENFORCEABLE OBLIGATIONS. This Credit Agreement, the Notes,
the other Loan Documents and the Commitment Agreement are the legal and binding
obligations of Borrower enforceable in accordance with their respective terms,
subject to Debtor Relief Laws.
7.05. PRIORITY OF LIENS. The Agent, for the benefit of Lenders, has
a valid, exclusive, enforceable, perfected, first priority security interest in
the Capital Commitments, the Capital Commitments Account, the Capital Call
Notices and the Capital Calls.
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7.06. FINANCIAL CONDITION. Borrower has delivered to Agent a copy
of its pro forma balance sheet as of December 1, 1993, and the related
statements of income, certified by the Chief Financial Officer thereof to be
true and correct. The most recent financial statements of Borrower which
Borrower has delivered to Agent are true and correct, fairly present the
respective financial condition of Borrower as of such date and have been
prepared in accordance with Generally Accepted Accounting Principles.
7.07. FULL DISCLOSURE. To Borrower's current, actual knowledge,
there is no material fact that Borrower has not disclosed to Agent in writing
which is likely to have a Material Adverse Effect. Neither the financial
statements referred in SECTION 7.06 hereof, nor any certificate or statement
delivered herewith or heretofore by Borrower to Agent in connection with
negotiations of this Credit Agreement, contains any untrue statement of a
material fact or omits to state any material fact that is likely to have a
Material Adverse Effect.
7.08. NO DEFAULT. No event has occurred and is continuing which
constitutes an Event of Default or which, with the lapse of time or giving of
notice or both, would constitute an Event of Default.
7.09. MATERIAL ADVERSE EFFECT. No change to Borrower has occurred
which is likely to have a Material Adverse Effect since the date of the most
recent financial statements of Borrower delivered to Lenders.
7.10. NO LITIGATION. Except as disclosed on EXHIBIT R attached
hereto, there are no actions, suits or legal, equitable, arbitration or
administrative proceedings pending, or to the knowledge of Borrower
threatened, against Borrower that would, if adversely determined, have a
Material Adverse Effect.
7.11. TAXES. To the extent that failure to do so would have a
Material Adverse Effect, all tax returns required to be filed by the Borrower
in any jurisdiction have been filed and all taxes (including mortgage recording
taxes), assessments, fees, and other governmental charges upon Borrower or upon
any of its properties, income or franchises have been paid prior to the time
that such taxes could give rise to a lien thereon. There is no proposed tax
assessment against Borrower or any basis for such assessment which is likely to
have a Material Adverse Effect and is not being contested in good faith.
7.12. PRINCIPAL OFFICE. The chief executive office of Borrower is
at 4200 Texas Commerce Tower West, 2200 Ross Avenue, Dallas, Texas 75201.
7.13. ERISA. Borrower has not established and does not maintain any
Plan.
7.14. COMPLIANCE WITH LAW. Borrower is in compliance in all
material respects with all laws, rules, regulations, orders, and decrees which
are applicable to Borrower or its properties, including, without limitation,
the International Investment and Trade in Services
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Survey Act of 1976, as amended, and Environmental Laws, to the extent
non-compliance would be likely to have a Material Adverse Effect.
7.15. HAZARDOUS SUBSTANCES. Borrower (a) has not received any
notice or other communication or otherwise learned of any Environmental
Liability which would individually or in the aggregate have a Material Adverse
Effect arising in connection with (i) any non-compliance with or violation of
the requirements of any Environmental Law, or any permit issued under any
Environmental Law, or (ii) the Release or threatened Release of any Hazardous
Material into the environment, and (b) has no threatened or actual liability in
connection with the Release or threatened Release of any Hazardous Material
into the environment which would individually or in the aggregate have a
Material Adverse Effect.
7.16. INSIDER. Borrower is not an "executive officer," "director,"
or "person who directly or indirectly or acting through or in concert with one
or more persons owns, controls, or has the power to vote more than 10% of any
class of voting securities" (as those terms are defined in 12 U.S.C. Section
375b or in regulations promulgated pursuant thereto) of any Lender, of a bank
holding company of which any Lender is a subsidiary, or of any subsidiary, of a
bank holding company of which any Lender is a subsidiary, of any bank at which
any Lender maintains a correspondent account, or of any bank which maintains a
correspondent account with any Lender.
7.17. INVESTOR SCHEDULE. The only Investors of Borrower are set
forth on EXHIBIT A attached hereto and incorporated herein by reference, and
the Capital Commitment of each Investor is set forth on EXHIBIT A.
7.18. CAPITAL COMMITMENTS. The Remaining Capital Commitments as of
the date of this Credit Agreement are $141,080,000. There are, on the date of
this Credit Agreement, no outstanding Capital Call Notices. No Included
Investor is in default under the Commitment Agreement.
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ARTICLE VIII
AFFIRMATIVE COVENANTS
So long as Lenders have any commitment to lend hereunder or to cause
the issuance of any Letters of Credit hereunder, and until payment in full of
the Notes and the performance of all other obligations of Borrower under this
Credit Agreement and the other Loan Documents, Borrower agrees that (unless the
Agent shall otherwise consent in writing):
8.01. FINANCIAL STATEMENTS, REPORTS AND DOCUMENTS. Borrower shall
deliver to the Agent sufficient copies for each of the Lenders of the
following:
(a) BORROWER FINANCIAL REPORTS. As soon as available,
and in any event within the time periods specified in the Commitment
Agreement, copies of all annual reports (including, without
limitation, audited annual financial statements), quarterly reports
(including, without limitation, quarterly financial statements),
income tax returns, and regulatory reports required to be furnished by
Borrower to the Investors as specified in more detail in Article VIII
of the Commitment Agreement, and all other financial statements,
appraisal reports and notices (if such notices relate to the
Investor's obligations or rights under the Commitment Agreement or to
their obligations under the Loan Documents), at any time or from time
to time prepared by Borrower and furnished to the Investors;
(b) QUARTERLY STATUS REPORTS. As soon as available, but
in any event within forty-five (45) days after the end of each
calendar quarter, a report which details the assets, properties,
businesses and investments including, without limitation, all
Qualified Investments acquired, sold, refinanced or otherwise disposed
of by Borrower during such calendar quarter and providing the Capital
Commitments and Remaining Capital Commitments of each Investor,
certified by the chief financial officer of Borrower as being true and
correct;
(c) CERTAIN OPINIONS. As soon as available, and in any
event within ten (10) Business Days after the dated delivery thereof
to Investors, copies of the legal opinions referred to in Section 3.7
of the Commitment Agreement; and
(d) OTHER INFORMATION. Such other information concerning
the business, properties, or financial condition of Borrower and the
Partnerships as the Agent shall reasonably request which are prepared
by Borrower or the Partnerships in the ordinary course of business.
8.02. PAYMENT OF TAXES. Borrower and each Qualified Borrower will
pay and discharge all taxes, assessments, and governmental charges or levies
imposed upon it, or upon its income or profits, or upon any property belonging
to it, before delinquent, if such failure would be likely to have a Material
Adverse Effect; provided, however, that neither Borrower
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nor any such Qualified Borrower shall be required to pay any such tax,
assessment, charge, or levy if and so long as the amount, applicability, or
validity thereof shall currently be contested in good faith by appropriate
proceedings and appropriate reserves therefor have been established.
8.03. MAINTENANCE OF EXISTENCE AND RIGHTS. Borrower and each
Qualified Borrower will preserve and maintain its existence. Borrower shall
further preserve and maintain all of its rights, privileges, and franchises
necessary in the normal conduct of its business and in accordance with all
valid regulations and orders of any Governmental Authority the failure of which
would have a Material Adverse Effect.
8.04. NOTICE OF DEFAULT. Borrower will furnish to Agent,
immediately upon becoming aware of the existence of any condition or event
which constitutes an Event of Default or which, with the lapse of time or
giving of notice or both, would become an Event of Default, a written notice
specifying the nature and period of existence thereof and the action which
Borrower is taking or proposes to take with respect thereto. Borrower shall
promptly notify Agent in writing upon becoming aware (a) that any Investor has
violated or breached any of the material terms of the Commitment Agreement or
that any event described in SECTION 2.01(c) has occurred, or (b) of the
existence of any condition or event which, with the lapse of time or giving of
notice or both would cause an Investor to become a Excluded Investor.
8.05. OTHER NOTICES. Borrower will promptly notify Agent of (a) any
change in the financial condition or the business of Borrower or any Qualified
Borrower that is likely to have a Material Adverse Effect, (b) any default
under any material agreement, contract, or other instrument to which Borrower
or any Qualified Borrower is a party or by which any of their respective
properties are bound, or any acceleration of the maturity of any material
indebtedness owing by Borrower or any Qualified Borrower, which is likely to
have a Material Adverse Effect, (c) any claim against or affecting Borrower or
any Qualified Borrower or any of their respective properties that is likely to
have a Material Adverse Effect, (d) the commencement of, and any material
determination in, any litigation with any third party or any proceeding before
any Governmental Authority affecting Borrower or any Qualified Borrower that is
likely to have a Material Adverse Effect, (e) any Environmental Complaint or
any claim, demand, action, event, condition, report or investigation indicating
any potential or actual liability arising in connection with (i) the
non-compliance with or violation of the requirements of any Environmental Law
or any permit issued under any Environmental Law which individually or in the
aggregate would be likely to have a Material Adverse Effect, or (ii) the
Release or threatened Release of any Hazardous Material into the environment
which individually or in the aggregate would be likely to have a Material
Adverse Effect, (f) the existence of any Environmental Lien on any Properties
or assets of Borrower or any Qualified Borrower, (g) any remedial action taken
by Borrower or any Qualified Borrower in response to any Environmental
Complaint or Environmental Liability, and (h) the listing of any of the
Properties on CERCLIS to the extent that Borrower obtains knowledge of such
listing.
8.06. COMPLIANCE WITH LOAN DOCUMENTS AND COMMITMENT AGREEMENT.
Borrower and each Qualified Borrower will promptly comply with any and all
covenants and provisions
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of this Credit Agreement, the Notes, and all of the other Loan Documents
executed by it. Borrower and each Qualified Borrower will use the proceeds of
any Capital Calls only for such purposes as are permitted by the Commitment
Agreement.
8.07. OPERATIONS AND PROPERTIES. Borrower and each Qualified
Borrower will act prudently and in accordance with customary industry standards
in managing or operating its assets, properties, business, and investments so
as not to incur a Material Adverse Effect; Borrower and each Qualified Borrower
will keep in good working order and condition, ordinary wear and tear excepted,
all of its assets and properties which are necessary to the conduct of their
business so as not to incur a Material Adverse Effect.
8.08. BOOKS AND RECORDS; ACCESS. Following three (3) Business Day's
prior written notice, Borrower and each Qualified Borrower will give any
representative of the Agent or Lenders, or any of them, access during all
business hours to, and permit such representative to examine, copy, or make
excerpts from, any and all books, records, and documents in the possession of
Borrower or such Qualified Borrower and relating to its affairs, and to inspect
any of the properties of Borrower or such Qualified Borrower.
8.09. COMPLIANCE WITH LAW. Borrower and each Qualified Borrower
will comply in all material respects with all material laws, rules,
regulations, and all orders of any Governmental Authority, including without
limitation, Environmental Laws, to the extent that non-compliance would be
likely to have a Material Adverse Effect.
8.10. INSURANCE. Borrower and each Qualified Borrower will maintain
workmen's compensation insurance, liability insurance, and insurance on its
present and future properties, assets, and business against such casualties,
risks, and contingencies, and in such types and amounts, as are consistent with
customary practices and standards of the real estate industry and the failure
of which to maintain is likely to have a Material Adverse Effect.
8.11. AUTHORIZATIONS AND APPROVALS. Borrower and each Qualified
Borrower will promptly obtain, from time to time at its own expense, all such
governmental licenses, authorizations, consents, permits and approvals as may
be required to enable Borrower or such Qualified Borrower to comply with its
obligations hereunder, under the other Loan Documents and under the Commitment
Agreement.
8.12. MAINTENANCE OF LIENS. Borrower and each Qualified Borrower
will perform all such acts and execute all such documents as the Agent may
reasonably request in order to enable Lenders to report, file, and record every
instrument that the Agent may reasonably deem necessary in order to perfect and
maintain Lenders' liens and security interests in, and assignments of, the
Capital Commitments, Capital Commitments Account, and Capital Calls and
otherwise to preserve and protect the rights of Lenders.
8.13. CAPITAL CALL NOTICES. Borrower shall deliver to Agent copies
of all Capital Call Notices as contemplated by SECTION 5.02 hereof. Borrower
shall, on or before June 3, 1998,
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make any Capital Calls which will be necessary to satisfy any of Borrower's
remaining obligations hereunder or under the Notes on or before the Loan
Commitment Termination Date.
8.14. FURTHER ASSURANCES. Borrower will make, execute or endorse,
and acknowledge and deliver or file or cause the same to be done, all such
vouchers, invoices, notices, certifications, and additional agreements,
undertakings, conveyances, transfers, assignments, financing statements, or
other assurances, and take any and all such other action, as the Agent may,
from time to time, reasonably deem necessary or proper in connection with the
Credit Agreement or any of the other Loan Documents, the obligations of
Borrower hereunder or thereunder, or for better assuring and confirming unto
Lenders all or any part of the security to be provided pursuant to the terms
hereof for any of such obligations.
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ARTICLE IX
NEGATIVE COVENANTS
So long as Lenders have any commitment to lend hereunder or to cause
the issuance of any Letter of Credit hereunder, and until payment in full of
the Notes and the performance of all other obligations of Borrower under this
Credit Agreement and the other Loan Documents, Borrower agrees that (unless the
Agent shall otherwise consent in writing):
9.01. MERGERS. Borrower will not merge or consolidate with or into
any Person.
9.02. NEGATIVE PLEDGE. Borrower will not create or suffer to exist
any mortgage, pledge, security interest, conditional sale or other title
retention agreement, charge, encumbrance, or other Lien (whether such interest
is based on common law, statute, other law or contract) upon the Capital
Commitments, the Capital Commitments Account, or the Capital Calls other than
to Lenders.
9.03. OTHER BORROWER DEBT. Borrower will not directly or indirectly
create, incur, assume or suffer to exist any Borrower Debt other than the
Obligation, Borrower Debt owing to trade creditors which is incurred in the
ordinary course of business, and any Borrower Debt to the Investors pursuant to
the Commitment Agreement.
9.04. COMMITMENT AGREEMENT. Borrower shall not alter, amend,
modify, terminate, or change any provision of the Commitment Agreement.
9.05. TRANSFER OR SUBSTITUTION OF INVESTORS. Borrower shall not (a)
permit any Transfer of any of the rights or interests of an Included Investor
under the Commitment Agreement except the transfer of certain limited rights as
provided in the Consent Agreement executed by such Investor pursuant to SECTION
5.01(b) hereof, or (b) admit any Person as an additional partner of a Qualified
Borrower other than an Investor or an Investor Entity (as defined in the
Commitment Agreement) or a Person controlled by an Investor, provided that such
Investor shall retain all obligations with respect to its Remaining Capital
Commitment. Notwithstanding the foregoing to the contrary, no Person shall be
admitted as an Investor unless and until such Person delivers to Agent a
Consent Agreement substantially in the form of EXHIBIT M, along with evidence
of authorization (including an opinion of counsel) as required by Agent.
9.06. CAPITAL COMMITMENTS. Borrower shall not (a) issue any Capital
Call Notices other than as contemplated by SECTION 5.02 hereof, (b) except as
allowed by SECTION 2.01(f) hereof, cancel or reduce the Remaining Capital
Commitment of any Investor as provided in Section 4.6 of the Commitment
Agreement or as otherwise contemplated by the Commitment Agreement, or (c)
excuse any Investor from any Capital Contribution contemplated by Article IV of
the Commitment Agreement, if the proceeds from the related Captial Call Notice
are to be applied to the Obligation.
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9.07. ERISA COMPLIANCE. Borrower shall not establish or maintain
any Plan.
9.08. ENVIRONMENTAL MATTERS. Except in compliance with relevant
Environmental Laws, Borrower shall not (a) cause or permit any Hazardous
Material to be generated, placed, held, located or disposed of on, under or at,
or transported to or from, any Property of Borrower, or (b) permit any such
Property to ever be used as a dump site or storage site (whether permanent or
temporary) for any Hazardous Material, if such events could cause a Material
Adverse Effect.
9.09. QUALIFIED INVESTMENTS. At no time shall the sum of: (a)(i)
Qualified Borrower Debt (other than the Obligation) incurred by a Qualified
Borrower in connection with a Qualified Investment, plus (ii) pre-existing
Qualified Borrower Debt on such Qualified Investment assumed by such Qualified
Borrower in connection with such acquisition, plus (iii) Loans and Letter of
Credit Liability made hereunder to such Qualified Borrower in connection with
such Qualified Investment, exceed the sum of (b)(i) the purchase price paid by
such Qualified Borrower for such Qualified Investment plus (ii) any capital
expenditures, operating expenses and other expenses allowed by the Commitment
Agreement in connection with such Qualified Investment. Additionally, no
Qualified Borrower shall incur any guaranty, reimbursement obligation for
letter of credit, deferred funding obligation or any other contingent liability
not included in the definition of Qualified Borrower Debt ("QUALIFIED BORROWER
CONTINGENT LIABILITY") if the direct effect of such Qualified Borrower
Contingent Liability is to allow a cash distribution or dividend to be made to
Borrower, any Qualified Borrower or any Hampstead Principal, or any Affiliate
of any of the foregoing that is not a direct or indirect subsidiary of the
Qualified Borrower.
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ARTICLE X
EVENTS OF DEFAULT
10.01. EVENTS OF DEFAULT. An "EVENT OF DEFAULT" shall exist if any
one or more of the following events (herein collectively called "EVENTS OF
DEFAULT") shall occur and be continuing:
(a) Borrower or any Qualified Borrower (i) shall fail to
pay when due any principal of the Notes at maturity, or (ii) shall
fail to pay when due any interest on the Notes or any fee, expense, or
other payment required hereunder and such failure shall continue for a
period of more than five (5) days;
(b) any representation or warranty made by Borrower under
this Credit Agreement, or any of the other Loan Documents or in any
certificate or statement furnished or made to Lenders or any of them
by Borrower or a Qualified Borrower pursuant hereto or in connection
herewith or with the Loans, shall prove to be untrue or inaccurate in
any material respect as of the date on which such representation or
warranty is made and, if such adverse effect is susceptible to cure,
Borrower or such Qualified Borrower shall fail to cure the adverse
effect of the failure of such representation or warranty within thirty
(30) days after written notice thereof is delivered to Borrower or
such Qualified Borrower by the Agent;
(c) default shall occur in the performance of any of the
covenants or agreements contained herein (other than the covenants
contained in SECTIONS 2.01(e), 8.04, 8.08 or 8.13 or SECTIONS 9.01
through 9.07 and SECTION 9.09 hereof), or of the covenants or
agreements of Borrower or a Qualified Borrower contained in any other
Loan Documents, and, if such default is susceptible to cure, such
default shall continue uncured to the satisfaction of the Agent for a
period of thirty (30) days after written notice thereof has been given
by the Agent to Borrower or such Qualified Borrower (provided that
such 30 day cure period shall not apply respecting covenants of
Borrower or a Qualified Borrower relating to notices to be given by
Borrower or such Qualified Borrower);
(d) default shall occur in the performance of any of the
covenants or agreements of Borrower contained in SECTIONS 2.01(e),
8.04, 8.08, 8.13, or 9.01 through 9.07 and SECTION 9.09 hereof;
(e) any of the Loan Documents executed by Borrower or any
Qualified Borrower shall cease, in whole or in part, to be legal,
valid, binding agreements enforceable against Borrower or such
Qualified Borrower, as the case may be, in accordance with the terms
thereof or shall in any way be terminated or become or be declared
ineffective or inoperative or shall in any way whatsoever cease to
give or
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provide the respective liens, security interest, rights, titles,
interest, remedies, powers, or privileges intended to be created
thereby;
(f) default shall occur in the payment of any
indebtedness of any Qualified Borrower (other than the Obligation), in
an aggregate amount of $750,000 or more, and such default shall
continue for more than the applicable period of grace, if any; or any
such indebtedness shall become due before its stated maturity by
acceleration of the maturity thereof or shall become due by its terms
and shall not be promptly paid or extended and such default is likely
to have a Material Adverse Effect;
(g) Borrower, any Qualified Borrower or any General
Partner shall (i) apply for or consent to the appointment of a
receiver, trustee, custodian, intervenor, or liquidator of itself or
of all or a substantial part of its assets, (ii) file a voluntary
petition in bankruptcy or admit in writing that it is unable to pay
its debts as they become due, (iii) make a general assignment for the
benefit of creditors, (iv) file a petition or answer seeking
reorganization of an arrangement with creditors or to take advantage
of any Debtor Relief Laws, (v) file an answer admitting the material
allegations of, or consent to, or default in answering, a petition
filed against it in any bankruptcy, reorganization or insolvency
proceeding, or (vi) take partnership or corporate action for the
purpose of effecting any of the foregoing;
(h) an order, order for relief, judgment or decree shall
be entered by any court of competent jurisdiction or other competent
authority approving a petition seeking reorganization of Borrower, any
Qualified Borrower or any General Partner appointing a receiver,
custodian, trustee, intervenor, or liquidator of Borrower, any
Qualified Borrower or any General Partner, or of all or substantially
all of its assets, and such order, judgment or decree shall continue
unstayed and in effect for a period of sixty (60) days;
(i) any final judgment(s) for the payment of money in
excess of the sum of $750,000 in the aggregate shall be rendered
against Borrower or any Qualified Borrower and such judgment or
judgments is likely to have a Material Adverse Effect; or
(j) there shall occur any change in the condition
(financial or otherwise) of Borrower or any Qualified Borrower which,
is likely to have a Material Adverse Effect, and, if such condition is
susceptible to remedy, is not remedied within ten (10) days after
written notice thereof has been delivered by Borrower or such
Qualified Borrowers by the Agent.
10.02. REMEDIES UPON EVENT OF DEFAULT. If an Event of Default
exists, then the Agent may, and, upon the direction of Majority Lenders, shall
(a) terminate the Commitment of Lenders hereunder, (b) declare the principal
of, and all interest then accrued on, the Notes, the Guaranty Agreements and
any other liabilities hereunder to be forthwith due and payable (including the
liability to fund the Letter of Credit Liability pursuant to SECTION 2.08(f)
hereof),
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whereupon the same shall forthwith become due and payable without presentment,
demand, protest, notice of default, notice of acceleration, or of intention to
accelerate or other notice of any kind all of which Borrower hereby expressly
waives, anything contained herein or in the Note to the contrary
notwithstanding, (c) exercise any right, privilege, or power set forth in
SECTIONS 5.02 and 5.03 hereof, including, but not limited to, the initiation of
Capital Calls of the Capital Commitments, or (d) without notice of default or
demand, pursue and enforce any of the Agent's or Lenders' rights and remedies
under the Loan Documents, or otherwise provided under or pursuant to any
applicable law or agreement; provided, however, that if any Event of Default
specified in SECTIONS 10.01(g) or (h) hereof shall occur with respect to
Borrower, the principal of, and all interest on, the Notes and other
liabilities hereunder shall thereupon become due and payable concurrently
therewith, without any further action by Agent or Lenders, or any of them, and
without presentment, demand, protest, notice of default, notice of
acceleration, or of intention to accelerate or other notice of any kind, all of
which Borrower hereby expressly waives.
10.03. PERFORMANCE BY AGENT. Should Borrower fail to perform any
covenant, duty, or agreement contained herein or in any of the Loan Documents
and should such failure continue beyond any grace period granted herein, the
Agent may, but shall not be obligated to, perform or attempt to perform such
covenant, duty, or agreement on behalf of Borrower and Agent shall give
Borrower notice prior to any action taken by Agent. In such event, Borrower
shall, at the request of the Agent pay, immediately upon such demand, if funds
are available (and not otherwise specifically committed for some other purpose)
in the Capital Commitments Account, and otherwise, on or before twenty-three
(23) Business Days after demand therefor, any amount expended by the Agent in
such performance or attempted performance to the Agent at its principal office
in New York, New York, together with interest thereon at the Default Rate from
the date of such expenditure until paid. Notwithstanding the foregoing, it is
expressly understood that neither Agent nor Lenders assume any liability or
responsibility for the performance of any duties of Borrower hereunder or under
any of the Loan Documents or other control over the management and affairs of
Borrower, nor by any such action shall the Agent or the Lenders be deemed to
create a partnership arrangement with the Borrower.
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ARTICLE XI
THE AGENT
11.01. APPOINTMENT AND AUTHORIZATION. Each Lender hereby appoints
Bankers Trust to act as the Agent as herein specified, and each Lender hereby
irrevocably appoints and authorizes the Agent to take such action on its behalf
and to exercise such power under this Credit Agreement and the other Loan
Documents as are delegated to the Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto. Neither the
Agent nor any of its respective directors, officers or employees shall be
liable for any action taken or omitted to be taken by it or them under or in
connection with this Credit Agreement or the Loan Documents, except for its or
their own gross negligence or willful misconduct. Agent may perform any of its
duties under this Credit Agreement and Loan Documents by or through its agents
or employees.
In being bound by this Credit Agreement, each Lender acknowledges and
agrees that it shall not have any right to deal with the Borrower with respect
to the rights, benefits and obligations of the Borrower under this Credit
Agreement or the other Loan Documents, but instead it has appointed the Agent
to act in its behalf under this Credit Agreement in accordance with the terms
hereof and thereof.
11.02. AGENT IN ITS INDIVIDUAL CAPACITY. With respect to the Note
issued to Agent, Agent shall have the same rights and powers under this Credit
Agreement as any other Lender and may exercise the same as though it were not
an Agent; and the term "Lender" or "Lenders" shall, unless otherwise expressly
indicated, include the Agent in its capacity as a Lender. The Agent and its
Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, Borrower, any
Qualified Borrower, any Investor, any General Partner, and any direct or
indirect Affiliates of any of them, and any such Person which may do business
with any of them, all as if the Agent were not an Agent hereunder and without
any duty to account therefor to the other Lenders.
11.03. NOTE HOLDERS. The Agent may treat the payee of any Note as
the holder thereof until written notice of transfer shall have been filed in
the manner provided in SECTION 12.08(c), signed by such payee, and in form
satisfactory to Agent.
11.04. CONSULTATION WITH COUNSEL. The Lenders agree that the Agent
may retain and consult with legal counsel, accountants and other professionals
selected by Agent and shall not be liable for any action taken or suffered in
good faith by it in accordance with the advice of such professionals.
11.05. DOCUMENTS. The Agent shall not be under a duty to examine or
pass upon the validity, effectiveness, enforceability, genuineness or value of
any of the Loan Documents or any other instrument or document furnished
pursuant thereto, and the Agent shall be entitled
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to assume that the same are valid, effective, enforceable and genuine and what
they purport to be.
11.06. RELIANCE ON AGENT. Borrower shall be entitled to rely upon,
and to act or refrain from acting on the basis of, any notice, statement,
certificate, waiver or other document or instrument delivered by the Agent to
Borrower on behalf of the Lenders so long as the Agent is purporting to act in
its capacity as Agent pursuant to this Credit Agreement, and Borrower shall not
be responsible or liable to any Lender (or to any Participant, as defined in
SECTION 12.08(b) hereof or to any Assignee, as defined in SECTION 12.08(c)
hereof), or as a result of any action or failure to act (including actions or
omissions which would otherwise constitute defaults hereunder) which is based
upon such reliance upon the Agent. Borrower shall be entitled to treat the
Agent as the properly authorized Agent pursuant to this Credit Agreement until
Borrower shall have received notice of resignation, and Borrower shall not be
obligated to recognize any successor Agent until Borrower shall have received
written notification satisfactory to it of the appointment of such successor
Agent.
11.07. RESIGNATION OF AGENT AND SUCCESSOR AGENTS. Agent may resign
at any time by giving written notice thereof to Lenders and Borrower, subject
to the appointment and acceptance of a successor Agent as provided below, and
Agent shall continue to serve as Agent until such appointment and acceptance by
a successor Agent. If Agent resigns, then Borrower and Majority Lenders shall
work diligently toward the appointment of a successor Agent, and if no
successor Agent shall have been so appointed and shall have accepted such
appointment within thirty (30) days after the retiring Agent gives notice of
resignation, then the Majority Lenders shall, on behalf of the Lenders, appoint
successor Agent. If Agent resigns and no successor Agent(s) shall have been
appointed and shall have accepted such appointment as aforesaid within sixty
(60) days after the retiring Agent gives notice of resignation, then the
retiring Agent shall, on behalf of Lenders, appoint a successor Agent. Upon
the acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring Agent and the retiring
Agent shall be discharged from any further duties and obligations arising
thereafter hereunder. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this ARTICLE XI shall continue in effect
for its benefit in respect to any actions taken or omitted to be taken by it
while it was acting as Agent.
11.08. RESPONSIBILITY OF AGENT. It is expressly understood and
agreed that the obligations of the Agent under the Loan Documents are only
those expressly set forth in the Loan Documents and that the Agent shall be
entitled to assume that no Event of Default or event which, with the giving of
notice or lapse of time, or both, would constitute an Event of Default has
occurred and is continuing, unless the Agent has actual knowledge of such fact
or has received notice from a Lender that such Lender considers that an Event
of Default or such event has occurred and is continuing and specifying the
nature thereof. As used herein "actual knowledge" shall mean the actual
knowledge of the account officers at the Agent who have the account
responsibility for Borrower. The Lenders recognize and agree that, for
purposes of this Credit Agreement, the Agent shall not be required to determine
independently whether the
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conditions described in SECTIONS 6.03(a) and (b), 6.04(a) and (b), 6.05(a) and
(b) and 6.06(a) and (b) thereof have been satisfied and, in disbursing funds to
Borrower or a Qualified Borrower or causing the Letters of Credit to be issued,
may rely fully upon statements contained in the relevant requests by Borrower
or a Qualified Borrower. The Agent shall not incur any liability under or in
respect of this Credit Agreement or the other Loan Documents by acting upon any
notice, consent, certificate, warranty or other paper or instrument believed by
it to be genuine or authentic or to be signed by the proper parties, or with
respect to anything which it may do or refrain from doing in the reasonable
exercise of its judgment, or which may seem to it to be necessary or desirable
in the premises. Furthermore, the Agent shall be fully justified by acting in
good faith upon any notice, consent, certificate or other instrument or writing
(which may be by telegram, telecopy, cable or telex) believed by the Agent to
be genuine and signed or sent by a Lender. In the event that Agent has not
exercised its right to initiate a Capital Call under the circumstances
described in the second paragraph of SECTION 5.02(d), Majority Lenders may
direct the Agent to exercise any rights it has under that paragraph.
The relationship between the Agent and each Lender is only that of
agent and principal and has no fiduciary aspects, and the Agent's duties
hereunder are acknowledged to be only ministerial and not involving the
exercise of discretion on its part. Nothing in this Credit Agreement or
elsewhere contained shall be construed to impose on the Agent any duties or
responsibilities other than those for which express provision is made herein.
In performing its duties and functions hereunder, the Agent does not assume and
shall not be deemed to have assumed, and hereby expressly disclaims, any
obligation or responsibility toward or any relationship of agencies or trusts
with or for, Borrower. As to any matters not expressly provided for herein
(including without limitations, enforcement or collection of the Notes), the
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully
protected in so acting or from refraining from acting) upon the instruction of
the Majority Lenders, and such instructions shall be binding upon all Lenders
and all holders of the Notes; provided, however, that Agent shall not be
required to take any action which exposes such Agent to personal liability or
which is contrary to this Credit Agreement or applicable law.
11.09. ADMINISTRATION OF CREDIT AGREEMENT. The Agent shall carry out
its administrative duties to the Lenders hereunder in accordance with the terms
of this Credit Agreement and as otherwise required by applicable law.
The Agent shall not, without the prior written consent of all
Lenders, agree to the modification or waiver of any of the terms of this Credit
Agreement, the Notes or any other Loan Document, consent to any action or
failure to act by the Borrower, or exercise any rights in respect of the Loans
or under this Credit Agreement, the Notes or any other Loan Documents,
including, without limitation, the Collateral Documents, if the agreement,
consent or exercise of rights would (a) extend the time for payment for the
principal or interest on any Notes, or reduce or increase the principal amount
of the Notes (except as a result of the application of payments or prepayments
under this Credit Agreement), or reduce the rate of interest borne by any
Notes, or otherwise affect the terms of payment of the principal of or any
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interest on any Notes; (b) release any liens granted under the Collateral
Documents, except as otherwise contemplated therein; (c) permit any Person to
become an Included Investor except for the Persons designated as Included
Investors on the date of this Credit Agreement; (d) amend or waive the
provisions of SECTIONS 9.02, 9.04, 9.05(a) OR 9.06; (e) change the percentages
specified in the definition of Majority Lenders; or (f) release any guarantor
of the Obligation.
The Agent shall not, without the prior written consent of the
Majority Lenders, agree to the modification or waiver of any of the terms of
ARTICLE VIII, or SECTIONS 5.02(d)(iv), 9.01, 9.03, 9.05(b), 9.07, 9.08 OR 9.09
or consent to any action or failure to act by the Borrower, or exercise any
rights in respect of such Article or Sections.
Further, the Agent shall not, without the prior written
consent of the affected Lender, agree to the modification or waiver of any of
the terms of this Credit Agreement, the Notes or any other Loan Document,
consent to any action or failure to act by the Borrower, or exercise any rights
in respect of the Loans or under this Credit Agreement, the Notes or any other
Loan Documents, if the agreement, consent or exercise of rights would reduce or
increase the amount or alter the term of the Loan Commitment of such Lender, or
alter the provisions relating to any fees (or any other payments) payable to
such Lender.
If the Agent shall request the consent of a Lender to any
agreement, consent or exercise of rights covered by this Credit Agreement, and
not receive such consent or denial thereof in writing within ten (10) Business
Days of the making of such request by the Agent, as the case may be, such
Lender shall be deemed not to have given its consent to the request. Any
modification not addressed above and any exercise of rights or discretion not
explicitly reserved to the Agent under the terms hereof, shall require the
written consent of the Majority Lenders.
11.10. NOTICE OF EVENT OF DEFAULT. In the event that the Agent shall
have acquired actual knowledge of any Event of Default or of an event which,
with the giving of notice or the lapse of time, or both, would constitute an
Event of Default, the Agent shall promptly give notice thereof to the Lenders.
In the event that any Lender shall have acquired actual knowledge of any Event
of Default or of any event which, with the giving of notice of the lapse of
time, or both, will constitute an Event of Default, such Lender shall promptly
give notice thereof to the Agent.
11.11. INDEPENDENT INVESTIGATION. Each Lender represents and
warrants to the Agent that it has made its own independent investigation and
assessment of the financial condition and affairs of the Borrower, the
Qualified Borrowers and the Investors in connection with the making and
continuation of its participation under this Credit Agreement and has not
relied exclusively on any information provided to such Lender by the Agent in
connection herewith or therewith, and each Lender represents, warrants and
undertakes to the Agent that it shall continue to make its own independent
appraisal of the credit-worthiness of the Borrower, the Qualified Borrowers and
the Investors while its Loan Commitment under this Credit Agreement is in
force.
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11.12. SHARING OF OFFSETS. Each Lender and Agent agrees that if it
shall, through the exercise of any right of counterclaim, offset, banker's lien
or otherwise, receive payment of a portion of the aggregate amount of principal
and interest due with respect to any Note or with respect to the Obligation of
Borrower under this Credit Agreement which constitutes a greater proportion of
the aggregate amount of principal, interest and fees then due to such Lender
under this Credit Agreement or its Note than the proportion received by any
other Lender in respect of the aggregate amount of principal, interest and fees
due with respect to such other Lender's Note or the Obligation of Borrower to
such other Lender under this Credit Agreement, then such Lender shall purchase
participations in the Notes and in the Loan Commitment and other rights and
obligations under this Credit Agreement held by such other Lenders so that all
such recoveries of principal and interest with respect to this Credit
Agreement, the Notes and Borrower's Obligation thereunder held by the Lenders
shall be pro rata according to each Lender's Loan Commitment (determined as of
the date hereof and regardless of any change in any Lender's Loan Commitment
caused by such Lender's receipt of a proportionately greater or lesser payment
hereunder).
11.13. REPURCHASE. If for any reason a Lender shall fail or refuse
to abide by its obligations (a "LENDER DEFAULT") under this Credit Agreement,
and such Lender fails to cure such Lender Default within five (5) Business Days
of its occurrence, then, in addition to the rights and remedies that may be
available to the Agent and the Lenders at law or in equity, such defaulting
Lender's Pro Rata Share, during the existence of such Lender Default, shall be,
solely for the purpose of determining Majority Lenders, a percentage obtained
from the fraction (a) the numerator of which is the aggregate principal amount
of such Lender's outstanding Loans and Letter of Credit Liability and (b) the
denominator of which is $125,000,000. The Agent shall have the right, but not
the obligation, in its sole discretion, to acquire at par all of such
defaulting Lender's Loan Commitment, including its Pro Rata Share in the
outstanding principal balance of the Loans, its Pro Rata Share of its
participation in the Letter of Credit Liability and all fees which have accrued
with respect thereto under this Credit Agreement. In the event that the Agent
does not exercise its right to so acquire all of such defaulting Lender's
interests, then the Agent and each of the Lenders that is not in Default (a
"CURRENT PARTY") shall then, thereupon, have the right, but not the obligation,
in its sole discretion to acquire at par (or if more than one Current Party
exercises such right, each Current Party shall have the right to acquire, pro
rata) such defaulting Lender's Loan Commitment, including its Pro Rata Share in
the outstanding principal balance of the Loans, its Pro Rata Share of its
participation in the Letter of Credit Liability and all fees which have accrued
with respect thereto under this Credit Agreement.
11.14. INDEMNIFICATION. Lenders agree to indemnify Agent (to the
extent not reimbursed by Borrower), ratably according to their respective Pro
Rata Shares, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against Agent in any way relating to or arising out of
this Credit Agreement or the other Loan Documents or any action taken or
omitted by Agent under this Credit Agreement or the other Loan Documents,
provided that no Lender shall be liable for any
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portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from Agent's gross
negligence or willful misconduct. If a Lender Defaults, such defaulting Lender
shall indemnify, defend and hold the Agent and each of the other Lenders
harmless from and against any and all losses, damages, liabilities, or expenses
(including, but not limited to, reasonable attorneys' fees and interest at the
Default Rate set forth in herein for funds advanced by the Agent or any one of
the Lenders on account of the defaulting Lender) which they may sustain or
incur by reason of or in consequence of the defaulting Lender's failure or
refusal to abide by its obligations under the Loan Documents. The Agent may set
off against payments due to the defaulting Lender, for the claims of the Agent
and the other Lenders against the defaulting Lender. The exercise of the above
remedies shall not reduce, diminish or liquidate the defaulting Lender's Pro
Rata Share or the obligations for the sharing of losses and reimbursement for
costs, liabilities and expenses under this Credit Agreement and the other Loan
Documents.
11.15. BENEFIT OF ARTICLE XI. The agreements contained in this
ARTICLE XI are solely for the benefit of Agent and the Lenders, and are not for
the benefit of, or to be relied upon by, the Borrower (except for the
agreements in SECTION 11.06 which explicitly relate to the Borrower), or any
other Person, including, without limitation, the agreements expressed in
SECTION 11.13.
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ARTICLE XII
MISCELLANEOUS
12.01. WAIVER. No failure to exercise, and no delay in exercising,
on the part of the Agent or Lenders, any right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other further exercise thereof or the exercise of any other right. The rights
of the Agent and Lenders hereunder and under the Loan Documents shall be in
addition to all other rights provided by law. No modification or waiver of any
provision of this Credit Agreement, the Notes or any of the other Loan
Documents, nor consent to departure therefrom, shall be effective unless in
writing and no such consent or waiver shall extend beyond the particular case
and purpose involved. No notice or demand given in any case shall constitute a
waiver of the right to take other action in the same, similar or other
instances without such notice or demand. The Agent, acting on behalf of all
Lenders, with the approval of Lenders to the extent required in SECTION 11.09,
and Borrower may from time to time enter into agreements amending or changing
any provision of this Credit Agreement or the rights of Lenders or Borrower
hereunder, or may grant waivers or consents to a departure from the due
performance of the obligations of Borrower hereunder, any such agreement,
waiver or consent made with such written consent of the Agent being effective
to bind all Lenders.
12.02. PAYMENT OF EXPENSES; INDEMNITY.
(a) Borrower agrees to pay all out-of-pocket costs and
expenses of Agent and Lenders (including, without limitation, the
reasonable attorneys' fees of Agent's and Lenders' legal counsel)
reasonably incurred by them in connection with the presentation and
enforcement of, and Agent and Lenders' rights under, this Credit
Agreement, the Notes, and the other Loan Documents, and all
out-of-pocket costs and expenses of Agent (including without
limitation the reasonable fees and expenses of Agent's legal counsel)
reasonably incurred by it in connection with the negotiation,
preparation, execution and delivery of this Credit Agreement, the
Notes, and the other Loan Documents and any and all amendments,
modifications and supplements thereof or thereto including, without
limitation, Agent's out-of-pocket costs and expenses relating to the
assignment of interests under this Credit Agreement to Eligible
Assignees.
(b) Borrower agrees to indemnify Agent and each of the
Lenders and their respective directors, officers, employees, attorneys
and agents (each such Person, including without limitation the Agent
and each of the Lenders, being called an "INDEMNITEE") against, and to
hold each Indemnitee harmless from, any and all losses, claims,
actions, judgments, suits, disbursements, penalties, damages (other
than consequential damages), liabilities and related expenses,
including reasonable attorneys' fees and expenses, incurred by or
asserted against any Indemnitee arising out of, in any way connected
with, or as a result of (i) the execution and delivery of this Credit
Agreement or any other Loan Document or any agreement or instrument
contemplated thereby, (ii) the use or misuse of the proceeds of the
Loans, (iii) the fraudulent actions
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or misrepresentations of Borrower, any Qualified Borrower or any
Investor in connection with the transactions contemplated by this
Credit Agreement and the other Loan Documents, or (iv) any claim,
litigation, investigation or proceeding relating to any of the
foregoing, whether or not any Indemnitee is a party thereto; provided,
however, that such indemnity shall not, as to any Indemnitee, apply to
any such losses, claims, actions, judgments, suits, disbursements,
penalties, damages, liabilities or related expenses arising from gross
negligence or willful misconduct of such Indemnitee. In addition to
and without limiting the foregoing, Borrower hereby indemnifies and
holds the Indemnitees harmless from and against, and agrees to
reimburse any Indemnitee with respect to, any and all claims, demands,
causes of action, judgments, suits, disbursements, penalties, loss,
damage, liabilities, costs, or expenses not resulting from the gross
negligence or willful misconduct of any Indemnitee (including
attorneys' fees and court costs) of any and every kind or character,
known or unknown, fixed or contingent, asserted against or incurred by
such Indemnitee under any Environmental Law by reason of any and all
matters arising out of (1) any act or omission of Borrower, any
Qualified Borrower or any officer, director, partner or shareholder of
Borrower or any Qualified Borrower, (2) or any act, omission, event,
or circumstance occurring on or in relationship to any Property of
Borrower or any Qualified Borrower or any facility owned or operated
by Borrower or any Qualified Borrower and arising in connection with
the relationship of Borrower, Qualified Borrowers and Lenders related
to the Obligation or the exercise or attempted exercise by Lenders of
their rights hereunder (including, without limitation, the presence
on, or the Release or threatened Release from or on, any Property of
Borrower or any Qualified Borrower or any facility owned or operated
by Borrower or any Qualified Borrower of any Hazardous Materials),
regardless of whether the act, omission, event, or circumstance
constituted a violation of any Environmental Law at the time of
existence or occurrence, including, without limitation (x) all
foreseeable and all unforeseeable damages (other than consequential
damages) directly or indirectly arising out of (A) the use,
generation, storage, or disposal of Hazardous Materials on any of the
Properties, the transportation of any Hazardous Materials to or from
any of the Properties, or the Release, threatened Release, or
discharge of any Hazardous Materials to or from any of the Properties
by Borrower or any Qualified Borrower, any prior owner or operator of
any of the Properties or any person on or about any of the Properties,
or (B) any damage to any natural resource or the environment, and (y)
the costs of any repair, cleanup, or other remediation or
detoxification for which Borrower or any Qualified Borrower is liable,
and the preparation of any closure or other required plans under any
Environmental Law. In addition, Borrower agrees that, in the event
any Hazardous Material is caused to be removed from any Property by
Borrower or any Qualified Borrower, or any entity controlled by or
owned in whole or in part by, or under common control with, Borrower
or such Qualified Borrower, the number assigned by the Environmental
Protection Agency in connection with generation, storage, use,
transportation, or disposal of Hazardous Material, as between
Borrower, such Qualified Borrower and Lender, shall be solely in the
name of Borrower or the appropriate Qualified Borrower and, as between
Lenders and Borrower or any Qualified Borrower, Borrower shall assume
any and all liability for the generation, transportation, disposal
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or handling, in any manner whatsoever of the removed Hazardous
Material. All such losses, claims, actions, judgments, suits,
disbursements, damages, liabilities, costs and expenses referred to in
this SECTION 12.02(b) are hereinafter referred to as "EXPENSES."
Borrower understands and agrees that its liability to each Indemnitee
hereunder or under any Environmental Law shall arise when an
Indemnitee incurs or is billed for any Expenses, and Borrower agrees
to pay to each Indemnitee within sixty (60) days following the
Indemnitee's demand from time to time in an amount equal to such
Expenses. Promptly after receipt by any Indemnitee of notice of any
claim or the commencement of any action, such Indemnitee shall, if a
claim in respect thereof is to be made by the Indemnitee against
Borrower, notify Borrower in writing of that claim or the commencement
of that action. If any such claim or action shall be brought against
any Indemnitee, and it shall notify Borrower thereof, Borrower shall
be entitled to participate therein and to assume the defense thereof
with counsel reasonably satisfactory to such Indemnitee.
Notwithstanding the preceding sentence, each Indemnitee shall have the
right to employ its own counsel and to determine its own defense of
such action in any such case, but the fees and expenses of such
counsel shall be at the expense of such Indemnitee unless (i) the
employment of such counsel shall have been authorized in writing by
the Borrower or (ii) the Borrower after the aforementioned notice of
the action, shall not have employed counsel reasonably satisfactory to
such Indemnitee to have charge of such defense or (iii) the
representation of the Indemnitee by Borrower's counsel would give rise
to a conflict of interest or (iv) the Indemnitee's counsel shall have
reasonably concluded that there appear to be defenses available to it
which are different from or additional to those available to the
Borrower (in which case the Borrower shall not have the right to
determine the defense of such action on behalf of the Indemnitee), in
any of which events the reasonable fees and expenses of the Indemnitee
shall be borne by the Borrower.
(c) The provisions of this SECTION 12.02 shall remain
operative and in full force and effect regardless of the expiration of
the Availability Period, the consummation of the transactions
contemplated hereby, the repayment of the Loans, the occurrence of the
Loan Commitment Termination Date, the invalidity, illegality, or
unenforceability of any term or provision of this Credit Agreement or
any other Loan Document, or any investigation made by or on behalf of
the Lenders. All amounts due under this SECTION 12.02 shall be
payable immediately upon demand, if funds are available (and not
otherwise specifically committed for some other purpose) in the
Capital Commitments Account, and otherwise, within twenty-three (23)
Business Days after written demand therefor.
12.03. NOTICE. Any notice, demand, request or other
communication which any party hereto may be required or may desire to give
hereunder shall be in writing (except where telephonic instructions or notices
are expressly authorized herein to be given) and shall be deemed to be
effective (a) if by hand delivery, on the day and at the time on which
delivered to such party at the address specified below; (b) if by telecopy or
other facsimile transmission, on the day facsimile or other written
confirmation is received by the sender thereof from the
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recipient, at the telecopier numbers specified below, (c) if by mail, on the
day which it is received after being deposited, postage prepaid, in the United
States registered or certified mail, return receipt requested, addressed to
such party at the address specified below; or (d) if by Federal Express or
other reputable express mail service, on the next Business Day following the
delivery to such express mail service, addressed to such party at the address
set forth below; or (e) if by telephone on the day and at the time
communication with one of the individuals named below occurs during a call to
the telephone number or numbers indicated for such party below:
If to the Borrower or any Qualified Borrower:
Hampstead Investment Partners Funding Corp.
4200 Texas Commerce Tower West
2200 Ross Avenue
Dallas, Texas 75201
Telephone: (214) 220-4900
Telecopier: (214) 220-4949
Attention: Richard M. Fitzpatrick
If to the Agent:
Bankers Trust Company
Real Estate Finance Group
280 Park Avenue-21 West
New York, New York 10017
Telephone: (212) 454-3090
Telecopier: (212) 454-1733
Attention: Frederick N. Sheppard
and:
Bankers Trust Company
Real Estate Finance Group
280 Park Avenue-23 West
New York, New York 10017
Telephone: (212) 454-3080
Telecopier: (212) 454-3821
Attention: Larry Ross
If to the Lenders:
At the address and numbers set forth below the signature of
such Lender on the signature page hereof or on the Assignment
and Acceptance Agreement of such Lender.
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Any telephonic or any other notice received by the Agent after 11:00 a.m. (New
York City time) shall be deemed to have been given by Borrower on the next
succeeding day. Any party may change its address for purposes of this Credit
Agreement by giving notice of such change to the other parties pursuant to this
SECTION 12.03.
12.04. GOVERNING LAW. THIS CREDIT AGREEMENT IS BEING EXECUTED AND
DELIVERED, AND IS INTENDED TO BE PERFORMED IN THE STATE OF NEW YORK, AND THE
SUBSTANTIVE LAWS OF SUCH STATE AND THE APPLICABLE FEDERAL LAWS OF THE UNITED
STATES OF AMERICA SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND
INTERPRETATION OF THIS CREDIT AGREEMENT AND ALL OF THE OTHER LOAN DOCUMENTS.
12.05. CHOICE OF FORUM; CONSENT TO SERVICE OF PROCESS AND
JURISDICTION; WAIVER OF TRIAL BY JURY. Any suit, action or proceeding against
Borrower, any Qualified Borrower or any Lender with respect to this Credit
Agreement, the Notes or the other Loan Documents or any judgment entered by any
court in respect thereof, may be brought in the courts of the State of New
York, or in the United States Courts located in the Borough of Manhattan in New
York City, if against Borrower or any Qualified Borrower, as Agent in its sole
discretion may elect and Borrower, each Qualified Borrower and each Lender
hereby submits to the non-exclusive jurisdiction of such courts for the purpose
of any such suit, action or proceeding. Borrower and each Qualified Borrower
hereby agrees that service of all writs, process and summonses in any such
suit, action or proceeding brought in the State of New York may be brought upon
its process agent appointed below, and Borrower and each Qualified Borrower
hereby irrevocably appoints the Process Agent its process agent, as its true
and lawful attorney-in-fact in the name, place and stead of Borrower to accept
such service of any and all such writs, process and summonses. Borrower, each
Qualified Borrower and each Lender hereby irrevocably waives any objections
which it may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this Credit Agreement or the Notes
brought in the courts located in the State of New York, Borough of Manhattan in
New York City, and hereby further irrevocably waives any claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. BORROWER AND EACH QUALIFIED BORROWER HEREBY WAIVES TRIAL
BY JURY IN ANY SUIT, ACTION OR PROCEEDING BROUGHT IN CONNECTION WITH THIS
CREDIT AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, WHICH WAIVER IS
INFORMED AND VOLUNTARY.
12.06. INVALID PROVISIONS. If any provision of this Credit Agreement
is held to be illegal, invalid, or unenforceable under present or future laws
effective during the term of this Credit Agreement, such provision shall be
fully severable and this Credit Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part of
this Credit Agreement, and the remaining provisions of this Credit Agreement
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance from this Credit
Agreement, unless such continued effectiveness of this Credit Agreement, as
modified, would be contrary to the basic understandings and
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<PAGE> 70
intentions of the parties as expressed herein. If any provision of this Credit
Agreement shall conflict with or be inconsistent with any provision of any of
the other Loan Documents, then the terms, conditions and provisions of this
Credit Agreement shall prevail.
12.07. ENTIRETY AND AMENDMENTS. The Loan Documents embody the entire
agreement between the parties and supersede all prior agreements and
understandings, if any, relating to the subject matter hereof and thereof, and
this Credit Agreement and the other Loan Documents to which Borrower or any
Qualified Borrower is a party may be amended only by an instrument in writing
executed by Borrower or the party Qualified Borrower and the Agent.
12.08. PARTIES BOUND; ASSIGNMENT.
(a) The provisions of this Credit Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that Borrower may not assign
or otherwise transfer any of its rights under this Credit Agreement
without the prior written consent of all Lenders.
(b) Any Lender may at any time grant to one or more banks
or other institutions (each a "PARTICIPANT") a participating interest
in its Loan Commitment or any or all of its Loans. In the event of
any such grant by a Lender of a participating interest to a
Participant, such Lender shall remain responsible for the performance
of its obligations hereunder, and Borrower and the Agent shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Credit Agreement.
Any agreement pursuant to which any Lender may grant such a
participating interest shall provide that such Lender shall retain the
sole right and responsibility to enforce the obligations of Borrower
hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Credit
Agreement. Borrower agrees that each Participant shall be entitled to
the benefits of SECTIONS 2.08(e) and 5.03 and ARTICLE IV hereof with
respect to its participating interest. Agent shall not, without the
consent of all Participants, agree to any modification or waiver of
any of the terms of any Loan Document, any action or failure to act by
the Borrower, or any exercise of rights in respect of the Loans or
under any Loan Documents, if the agreement, consent or exercise of
rights would (a) extend the time for payment for the principal or
interest on any Notes, or reduce or increase the principal amount of
the Notes (except as a result of the application of payments or
prepayments under this Credit Agreement), or reduce the rate of
interest borne by any Notes, or otherwise affect the terms of payment
of the principal of or any interest on any Notes; (b) release any
liens granted under the Collateral Documents, except as otherwise
contemplated therein; or (c) release any guarantor of the Obligation.
A Transfer which is not permitted by SUBSECTION (c) below shall be
given effect for purposes of this Credit Agreement only to the extent
of a participating interest granted in accordance with this SUBSECTION
(b).
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(c) Any Lender may, with the prior written consent of the
Agent, Transfer to one or more Eligible Assignees (each an "ASSIGNEE")
all, or a proportionate part of all, of its rights and obligations
under this Credit Agreement and its Note, and such Assignee shall
assume such rights and obligations, pursuant to an Assignment and
Acceptance Agreement, PROVIDED, HOWEVER, that, unless the Agent
otherwise consents, and except for Transfers made by the Agent, or
Transfers to a Person that is a Lender prior to the Transfer, any such
Transfer shall be in a minimum principal amount of $10,000,000.
Notwithstanding the foregoing, any Lender may, at any time, Transfer
to an Affiliate of such Lender or to a Federal Reserve Bank, all, or a
proportionate part of all, of its rights and obligations under this
Credit Agreement and its Note, and such Assignee (other than a Federal
Reserve Bank) shall assume such rights and obligations, pursuant to an
Assignment and Acceptance Agreement. Upon (i) execution and delivery
of such Assignment and Acceptance Agreement, (ii) payment by such
Assignee to such transferor Lender of an amount equal to the purchase
price agreed between such transferor Lender and such Assignee and
(iii) payment to Agent of a processing and recordation fee of (x)
$2,500 if such Assignee is not then a Lender or (y) $1,000 if such
Assignee is then a Lender, such Assignee shall be a Lender party to
this Credit Agreement and shall have all the rights and obligations of
a Lender with a Loan Commitment as set forth in such Assignment and
Acceptance Agreement, and the transferor Lender shall be released from
its obligations hereunder to a corresponding extent, and no further
consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this SUBSECTION (C), the
transferor Lender, the Agent and Borrower shall make appropriate
arrangements so that, if required, new Notes are issued to such
Assignee and the transferor Lender.
(d) The Agent shall maintain at its principal offices in
New York, New York or at such other location as the Agent shall
designate in writing to each Lender and Borrower, a copy of each
Assignment and Acceptance Agreement delivered to and accepted by it
and a register for the recordation of the names and addresses of the
Lenders, the amount of each Lender's Pro Rata Share of the Total Loan
Commitment and the Loans, and the name and address of each Lender's
agent for service of process in New York City (the "REGISTER"). The
entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and Borrower, the Agent and the
Lenders may treat each person or entity whose name is recorded in the
Register as a Lender hereunder for all purposes of this Credit
Agreement. The Register shall be available for inspection and copying
by Borrower or any Lender during normal business hours upon reasonable
prior notice to the Agent. A Lender may change its address and its
agent for service of process upon written notice to the Agent, which
notice shall be effective upon actual receipt by the Agent, which
receipt will be acknowledged by the Agent upon request. Upon receipt
of any Assignment and Acceptance Agreement the Agent shall, if such
Assignment and Acceptance Agreement has been completed, fully-executed
and is substantially in the form of EXHIBIT P hereto, (i) accept such
an Assignment and Acceptance Agreement, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof
to Borrower.
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12.09. MAXIMUM INTEREST. Regardless of any provision contained in
any of the Loan Documents, Lender shall never be entitled to receive, collect
or apply as interest on the Notes any amount in excess of the Maximum Rate,
and, in the event that Lender ever receives, collects or applies as interest
any such excess, the amount which would be excessive interest shall be deemed
to be a partial prepayment of principal and treated hereunder as such; and, if
the principal amount of the Obligation is paid in full, any remaining excess
shall forthwith be paid to Borrower. In determining whether or not the
interest paid or payable under any specific contingency exceeds the Maximum
Rate, Borrower and Lender shall, to the maximum extent permitted under
applicable law, (a) characterize any nonprincipal payment as an expense, fee or
premium rather than as interest; (b) exclude voluntary prepayments and the
effects thereof; and (c) amortize, prorate, allocate and spread, in equal
parts, the total amount of interest throughout the entire contemplated term of
the Notes so that the interest rate does not exceed the Maximum Rate; provided
that, if the Notes is paid and performed in full prior to the end of the full
contemplated term thereof, and if the interest received for the actual period
of existence thereof exceeds the Maximum Rate, Lender shall refund to Borrower
the amount of such excess or credit the amount of such excess against the
principal amount of the Notes and, in such event, Lender shall not be subject
to any penalties provided by any laws for contracting for, charging, taking,
reserving or receiving interest in excess of the Maximum Rate.
12.10. HEADINGS. Section headings are for convenience of reference
only and shall in no way affect the interpretation of this Credit Agreement.
12.11. SURVIVAL. All representations and warranties made by Borrower
herein shall survive delivery of the Notes, the making of the Loans and the
issuance of the Letters of Credit.
12.12. AVAILABILITY OF RECORDS; CONFIDENTIALITY. Borrower
acknowledges and agrees that the Agent may provide to the Lenders and to Fitch
Investor Service, Inc., and that the Agent and each of the Lenders may provide
to any Participant or Assignee or proposed Participant or Assignee, originals
or copies of this Credit Agreement, all Loan Documents and all other documents,
certificates, opinions, letters of credit, reports, and other material
information of every nature or description, and may communicate all oral
information, at any time submitted by or on behalf of Borrower or any Qualified
Borrower or received by the Agent or a Lender in connection with the Loans, the
Letter of Credit Liability, the Remaining Capital Commitments or Borrower or
any Qualified Borrower; provided, however, that, prior to any such delivery or
communication, the Lender, Participant, or Assignee, as the case may be, shall
agree to preserve the confidentiality of all data and information which
constitutes Confidential Information. Anything herein to the contrary
notwithstanding, the provisions of this SECTION 12.12 shall not preclude or
restrict any such party from disclosing any Confidential Information: (a) with
the prior written consent of Borrower, (b) upon the order of or pursuant to the
rules and regulations of any Governmental Authority having jurisdiction over
such party, (c) in connection with any audit by an independent public
accountant of such party, provided such auditor thereto agrees to be bound by
the provisions of this SECTION 12.12, (d) to examiners or auditors of any
applicable Governmental Authority which examines such party's books and
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records while conducting such examination or audit, or (e) as otherwise
specifically required by law.
12.13. PUBLICITY. Neither Agent, any Lender nor Borrower shall
publish any "tombstone" advertisements, issue any press releases or otherwise
publicize this Credit Agreement or the transactions contemplated herein without
the prior mutual written consent of Borrower and Agent.
12.14. MULTIPLE COUNTERPARTS. This Credit Agreement may be executed
in any number of counterparts, all of which taken together shall constitute one
and the same agreement, and any of the parties hereto may execute this Credit
Agreement by signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed as of the day and year first above written.
BORROWER:
HAMPSTEAD INVESTMENT PARTNERS
FUNDING CORP.
By: /s/ Richard M. Fitzpatrick
-----------------------------
Name: Richard M. Fitzpatrick
Title: Vice President
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AGENT:
BANKERS TRUST COMPANY
By: /s/ Paul R. Turovsky
----------------------------------------
Paul R. Turovsky
Managing Director
LENDERS:
Loan Commitment: BANKERS TRUST COMPANY
$14,000,000
By: /s/ Paul R. Turovsky
----------------------------------------
Paul R. Turovsky
Managing Director
Bankers Trust Company
280 Park Avenue
New York, New York 10017
Attention: Mr. Frederick N. Sheppard
Telephone: 212-454-3090
Telecopier: 212-454-1733
or
Mr. Larry Ross
Telephone: 212-454-3090
Telecopier: 212-454-1733
<PAGE> 75
Loan Commitment: FLEET BANK OF MASSACHUSETTS
$14,000,000
By: /s/ Ginger Stolzenthaler
------------------------------------------
Ginger Stolzenthaler
Vice President
Fleet Bank
Fleet Center
75 State Street
Boston, Massachusetts 02109-1810
Attention: Ginger Stolzenthaler
Telephone: 617-346-1647
Telecopier: 617-346-1634
<PAGE> 76
Loan Commitment: UNITED STATES NATIONAL BANK OF
$14,000,000 OREGON
By: /s/ Blake R. Howells
------------------------------------------
Name: Blake R. Howells
Title: Vice President
United States National Bank of Oregon
111 S.W. Fifth Avenue T-29
Portland, Oregon 97204
Attention: Blake Howells
Telephone: 503-275-3475
Telecopier: 503-275-5428
<PAGE> 77
Loan Commitment: WELLS FARGO BANK, N.A.
$14,000,000
By: /s/ Jane Craig Padgitt
-------------------------------------------
Jane Craig Padgitt
Vice President
Wells Fargo Bank, N.A.
201 3rd Street, 8th Floor
San Francisco, CA 94103
Attention: Matthew Wright
Telephone: 415-477-5297
Telecopier: 415-512-9068
<PAGE> 78
Loan Commitment: CREDIT LYONNAIS NEW YORK
$12,000,000 BRANCH
By: /s/ Alain Papiasse
-------------------------------------------
Name: Alain Papiasse
Title: Senior Vice President and
Deputy General Manager
Credit Lyonnais
Lincoln Plaza
500 N. Akard
Dallas, Texas 75201
Attention: Samuel Hill
Telephone: 214-954-3500
Telecopier: 214-954-3312
<PAGE> 79
Loan Commitment: FIRST INTERSTATE BANK OF
$12,000,000 TEXAS, N.A.
By: /s/ Susan L. Baker
-----------------------------------------
Susan L. Baker
Assistant Vice President
First Interstate Bank of Texas
1445 Ross Avenue
Dallas, Texas 75202
Attention: Susan Baker
Telephone: 214-740-1518
Telecopier: 214-740-1543
<PAGE> 80
Loan Commitment: LANDESBANK HESSEN-THCRINGEN
$12,000,000 GIROZENTRALE
NEW YORK BRANCH
By: /s/ Fred Musch
-------------------------------------------
Fred Musch
Senior Vice President
By: /s/ Cornelius J. McMorrow
-------------------------------------------
Cornelius J. McMorrow
Vice President
Landesbank Hessen-Thuringen
Girozentrale
New York Branch
499 Park Avenue, 19th Floor
New York, New York 10022
Attention: Fred Musch
Cornelius J. McMorrow
Telephone: 212-371-2500
Telecopier: 212-838-9218
<PAGE> 81
Loan Commitment: BANK OF IRELAND
$11,000,000
By: /s/ Niamh O'Flynn
---------------------------------
Niamh O'Flynn
Manager
Bank of Ireland
La Touche House
International Financial Services
Centre
Custom House Docks
Dublin 1, Ireland
Attention: Ms. Niamh O'Flynn
Telephone: 011-353-1-6700-600
Telecopier: 011-353-1-829-0129
<PAGE> 82
Loan Commitment: KREDIETBANK, N.V.
$11,000,000
By: /s/ Diane M. Grimmig
-------------------------------------------
Name: Diane M. Grimmig
Title: Vice President
By: /s/ Robert Snauffer
-------------------------------------------
Name: Robert Snauffer
Title: Vice President
Kredietbank, N.V.
c/o Atlanta Representative Office
Two Midtown Plaza, Suite 1440
1360 Peachtree Street
Atlanta, Georgia 30309
Attention: Ms. Linda Stanley
Telephone: 404-876-2556
Telecopier: 404-876-3212
<PAGE> 83
Loan Commitment: SHAWMUT BANK, N.A.
$11,000,000
By: /s/ Lyle E. Lawrence
-----------------------------------------
Name: Lyle E. Lawrence
Title: Vice President
Shawmut Bank, N.A.
One Federal Street
Mail Code OF0309
Boston, Massachusetts 02211
Attention: John Germain
Telephone: 617-556-8247
Telecopier: 617-292-2095
