SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 10-KSB/A
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Fiscal Year Ended December 31, 1997
Commission File Number 1-9224
HELMSTAR GROUP, INC.
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(Exact name of registrant as specified in its charter)
Delaware 13-2689850
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2 World Trade Center, Suite 2112, New York, New York 10048
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(Address of principal executive offices) (Zip Code)
Issuer's telephone number (212) 775-0400
Securities registered under Section 12(b) of the Exchange Act:
Title of each class Name of each exchange on which registered
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Common, par value $.10 per share AMERICAN STOCK EXCHANGE
Securities registered under Section 12(g) of the Exchange Act:
None
(Title of class)
The Issuer hereby amends its Annual Report on Form 10-KSB for the year
ended December 31, 1997 to amend in its entirety Item 13.
<PAGE>
Item 13. Exhibits, List and Reports on Form 8-K.
(a) Exhibits
Certain of the following exhibits, as indicated parenthetically, were previously
filed as exhibits to other reports or registration statements filed by the
Registrant under the Securities Act of 1933 or under the Securities Exchange Act
of 1934 and are hereby incorporated by reference.
3.1 Restated Certificate of Incorporation of the Registrant filed on July 31,
1987 and amendments thereto filed on June 8, 1989, September 14, 1990 and
December 2, 1991. Certificate of change of location of registered office and of
registered agent filed on May 7, 1992.
3.2 Amended and Restated By-Laws of the Registrant. (Incorporated by reference
to the Registrant's Annual Report on Form 10-KSB for the year ended December 31,
1995.)
10.1 40l(k) Savings Plan of the Company as amended and restated as of January 1,
1993. (Incorporated by reference to the Registrant's Annual Report on Form
10-KSB for the year ended December 31, 1993.)
10.2 Lease of the Company's executive offices, dated February 29, 1996.
(Incorporated by reference to the Registrant's Annual Report on Form 10-KSB for
the year ended December 31, 1996.)
10.3 Helmstar Group, Inc. 1990 Incentive Compensation Plan. (Incorporated by
reference to the Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1995.)
10.4 Amendment to the Helmstar Group, Inc. 1990 Incentive Compensation Plan.
(Incorporated by reference to the Registrant's Annual Report on Form 10-KSB for
the year ended December 31, 1996.)
10.5 Sale of Citizens Mortgage Service Company to IMN Financial Corp, dated
September 5, 1997 (Incorporated by reference to the Registrant's Current Report
on Form 8-K, dated September 19, 1997.)
10.6 Indenture of Trust between Movieplex Realty Leasing, L.L.C. and First Union
National Bank, as Trustee, dated November 1, 1997.
10.7 Form of Bond.
10.8 Master Lease between Movieplex Realty Leasing, L.L.C., as Landlord, and
Carmike Cinemas, Inc., as Tenant, dated November 20, 1997. 1
10.9 Reimbursement Agreement, dated as of November 20, 1997, among Movieplex
Realty Leasing, L.L.C, the Lenders, and Wachovia Bank, N.A., as Agent.1
10.10 Form of Letter of Credit.
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1 Portions of this exhibit have been deleted per the Registrant's request for
confidential treatment and filed separately with the Commission pursuant to Rule
24b-2.
<PAGE>
10.11 Form of Bond Purchase Agreement between Movieplex Realty Leasing, L.L.C.
and {the Purchaser], dated November 20, 1997.
10.12 Agency and Development Agreement between Movieplex Realty Leasing, L.L.C.
and Carmike Cinemas, Inc., dated November 20, 1997.
22.0 Subsidiaries of the Registrant.
(b) Reports filed on Form 8-K
On October 10, 1997, the Registrant filed a Form 8-K to report that the
partnerships in which the Company was a partner sold Blowing Rock Outlet Center
and Nags Head Outlet Center to Tanger Factory Outlet Centers, Inc.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of
1934, the Registrant has duly authorized and caused the undersigned to sign this
Report on the Registrant's behalf.
HELMSTAR GROUP, INC.
By: /s/ George W. Benoit
--------------------
George W. Benoit, Chairman of the Board
and Chief Executive Officer
Dated: April 8, 1998
<PAGE>
Index to Exhibits
Exhibit No.
3.1 Restated Certificate of Incorporation of the Registrant filed on
July 31, 1987 and amendments thereto filed on June 8, 1989,
September 14, 1990 and December 2, 1991. Certificate of change of
location of registered office and of registered agent filed on May
7, 1992.
3.2 Amended and Restated By-Laws of the Registrant. (Incorporated by
reference to the Registrant's Annual Report on Form 10-KSB for the
year ended December 31, 1995.)
10.1 40l(k) Savings Plan of the Company as amended and restated as of
January 1, 1993. (Incorporated by reference to the Registrant's
Annual Report on Form 10-KSB for the year ended December 31, 1993.)
10.2 Lease of the Company's executive offices, dated February 29, 1996.
(Incorporated by reference to the Registrant's Annual Report on Form
10-KSB for the year ended December 31, 1996.)
10.3 Helmstar Group, Inc. 1990 Incentive Compensation Plan. (Incorporated
by reference to the Registrant's Annual Report on Form 10-KSB for
the year ended December 31, 1995.)
10.4 Amendment to the Helmstar Group, Inc. 1990 Incentive Compensation
Plan. (Incorporated by reference to the Registrant's Annual Report
on Form 10-KSB for the year ended December 31, 1996.)
10.5 Sale of Citizens Mortgage Service Company to IMN Financial Corp,
dated September 5, 1997 (Incorporated by reference to the
Registrant's Current Report on Form 8-K, dated September 19, 1997.)
10.6 Indenture of Trust between Movieplex Realty Leasing, L.L.C. and
First Union National Bank, as Trustee, dated November 1, 1997.
10.7 Form of Bond.
<PAGE>
10.8 Master Lease between Movieplex Realty Leasing, L.L.C., as Landlord,
and Carmike Cinemas, Inc., as Tenant, dated November 20, 1997. 1
10.9 Reimbursement Agreement, dated as of November 20, 1997, among
Movieplex Realty Leasing, L.L.C, the Lenders, and Wachovia Bank,
N.A., as Agent.1
10.10 Form of Letter of Credit.
10.11 Form of Bond Purchase Agreement between Movieplex Realty Leasing,
L.L.C. and [the Purchaser], dated November 20, 1997.
10.12 Agency and Development Agreement between Movieplex Realty Leasing,
L.L.C. and Carmike Cinemas, Inc., dated November 20, 1997.
22.0 Subsidiaries of the Registrant.
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1 Portions of this exhibit have been deleted per the Registrant's request for
confidential treatment and filed separately with the Commission pursuant to Rule
24b-2.
Filed 7/31/87
RESTATED
CERTIFICATE OF INCORPORATION
OF
MATTHEWS & WRIGHT GROUP, INC.
(Pursuant to Sections 242 and 245 of the
General Corporation Law)
The original Certificate of Incorporation of Matthews & Wright Group,
Inc. (the "Corporation"), was filed with the Secretary of State on April 27,
1971 under the name of Benoit and Skyrm, Inc. This Restated Certificate of
Incorporation was proposed by the directors and adopted by the stockholders of
the Corporation in the manner and by the vote prescribed by Sections 242 and 245
of the Delaware General Corporation Law and, when effective, will not result in
a reduction of the capital of the Corporation.
This Restated Certificate of Incorporation further amends the
Certificate of Incorporation of the Corporation to amend Article Fourth to
change the par value of the Corporation's Preferred Stock from $100 per share to
no par value; and to add as Article TENTH certain provisions to the Certificate
of Incorporation.
The text of the Certificate of Incorporation of the Corporation, as
amended hereby, is set forth in full as follows:
FIRST: The name of the Corporation is
Matthews & Wright Group, Inc.
SECOND: The registered office of the Corporation in the State of
Delaware is located at 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of its registered agent is The Corporation Trust Company,
1209 Orange Street, Wilmington, Delaware 19801.
THIRD: The purpose of the Corporation is to engage in any lawful act of
activity for which a corporation may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares which the Corporation shall have the
authority to issue is 102,000,000 shares, of which 100,000,000 shares shall be
Common Stock, par value $.10 per share (the "Common Stock"), and 2,000,000
shares shall be Preferred Stock, no par value per share (the "Preferred Stock").
<PAGE>
The Preferred Stock may be issued from time to time in one or more
series with such designations, preferences and relative participating, optional
or other special rights and qualifications, limitations or restrictions thereof,
as shall be stated in the resolutions adopted by the Board of Directors
providing for the issuance of such Preferred Stock or series thereof; and the
Board of Directors is hereby expressly vested with authority to fix such
designations, preferences and relative participating, optional or other special
rights or qualifications, limitations or restrictions for each series,
including, but not by way of limitation, the power to fix the redemption and
liquidation preferences, the rate of dividends payable and the time for and the
priority of payment thereof and to determine whether such dividends shall be
cumulative or not and to provide for and fix the terms of conversion of such
Preferred Stock or any series thereof into Common Stock of the Corporation and
fix the voting power, if any, of shares of Preferred Stock or any series
thereof.
FIFTH:
A. Election of directors need not be by ballot unless the
By-laws of the Corporation shall so provide.
B. A director may be removed only by the affirmative vote of
the holders of not less than 60% of the combined voting power of the
Corporation, unless such removal is approved by a majority of the
Disinterested Directors (as defined in Article Seventh), in which case
the holders of a majority of the combined voting power of the
Corporation may remove a director.
SIXTH: In furtherance and not in limitation of the power conferred upon
the Board of Directors, the Board of Directors shall have power to make, adopt,
alter, amend and repeal from time to time By-laws made by the Board of
Directors, subject to Article Ninth.
SEVENTH: The vote of shareholders of the Corporation required to
approve any Business Combination shall be as set forth in this Article Seventh.
The term "Business Combination" shall have the meaning ascribed to it in(a)(B)
of this Article; each other capitalized term used in this Article shall have the
meaning ascribed to it in (c) of this Article.
(a)(A). In addition to any affirmative vote required by law or this
Certificate of Incorporation and except as otherwise expressly provided in (b)
of this Article Seventh:
(1) Any merger or consolidation of the Corporation or any
Subsidiary with (i) any Interested Shareholder or (ii) any other corporation or
entity (whether or not itself an Interested Shareholder) which is, or after each
merger or consolidation would be, an Affiliate of an Interested Shareholder; or
(2) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to or with an
Interested Shareholder or any Affiliate of any Interested Shareholder of assets
of the Corporation or any Subsidiary having an aggregate Fair Market Value of
$25,000,000 or more; or
<PAGE>
(3) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any securities of
the Corporation or any Subsidiary to an Interested Shareholder or any Affiliate
of an Interested Shareholder of assets of the Corporation or any Subsidiary
having an aggregate Fair Market Value of $25,000,000 or more, other than the
issuance of securities upon the conversion of convertible securities of the
Corporation or any Subsidiary which were not acquired by such Interested
Shareholder (or such Affiliate) from the Corporation or a Subsidiary; or
(4) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by or on behalf of an Interested
Shareholder or any Affiliate of any Interested Shareholder; or
(5) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise involving an Interested
Shareholder) which in any such case has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class or
series of stock or securities convertible into stock of the Corporation or any
Subsidiary which is directly or indirectly beneficially owned by an Interested
Shareholder or any Affiliate of any Interested Shareholder; shall not be
consummated without the affirmative vote of the holders of at least 60 percent
of the combined voting power of the then outstanding shares of stock of all
classes and series of the Corporation entitled to vote generally in the election
of directors ("Voting Stock"), in each case voting together as a single class.
Such affirmative vote shall be required notwithstanding the fact that no vote
may be required, or that a lesser percentage may be specified, by law or by this
Certificate of Incorporation or any resolution or in any agreement with any
national securities exchange or otherwise.
(i) (if applicable) the highest per share price (including any
brokerage commission, transfer taxes and soliciting dealers' fees) paid
in order to acquire any shares of such class or series of Voting Stock
beneficially owned by the Interested Shareholder which were acquired
beneficially by such interested Shareholder (x) within the two-year
period immediately prior to the Announcement Date or (y) in the
transaction in which it became an Interested Shareholder, whichever is
higher;
(ii) (if applicable) the highest preferential amount per share
to which the holders of shares of such class or series of Voting Stock
are entitled in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the corporation; and
(iii) the Fair Market Value per share of such class or series
of Voting Stock on the Announcement Date or the Determination Date,
whichever is higher; and
<PAGE>
(3) the consideration to be received by holders of a
particular class or series of outstanding Voting Stock (including Common Stock)
shall be in cash or in the same form as was previously paid in order to acquire
beneficially shares of such class or series of Voting Stock that are
beneficially owned by the Interested Shareholder and, if the Interested
Shareholder beneficially owns shares of any class or series of Voting Stock that
were acquired with varying forms of consideration, the form of consideration to
be received by holders of such class or series of Voting Stock shall be either
cash or the form used to acquire beneficially the largest number of shares of
such class or series of Voting Stock beneficially acquired by it prior to the
Announcement Date; and
(4) After such Interested Shareholder has become an Interested
Shareholder and prior to the consummation of such Business Combination:
(i) except as approved by a majority of the Disinterested
Directors, there shall have been no failure to declare and pay at the
regular dates therefor the full amount of any dividends (whether or not
cumulative) payable on any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation;
(ii) there shall have been (x) no reduction in the annual rate
of dividends paid on the Common Stock (except as necessary to reflect
any subdivision of the Common Stock), except as approved by a majority
of the Disinterested Directors, and (y) an increase in such annual rate
of dividends (as necessary to prevent any such reduction) in the event
of any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which has
the effect of reducing the number of outstanding shares of the Common
Stock, unless the failure so to increase such annual rate was approved
by a majority of the Disinterested Directors; and
(iii) such Interested Shareholder shall not have become the
beneficial owner of any additional shares of Voting Stock except as
part of the transaction in which it became an Interested Shareholder;
and
(5) after such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder shall not have received the benefit,
directly or indirectly (except proportionately as a shareholder), of any loans,
advances, guarantees, pledges or other financial assistance or tax credits or
other tax advantages provided by the Corporation, whether in anticipation of or
in connection with such Business Combination or otherwise; and
(6) a proxy or information statement describing to the
proposed Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations thereunder (or any
subsequent provision replacing such Act, rules or regulations) shall be mailed
to public shareholders of the Corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such proxy or
information statements is required to be mailed pursuant to such Act or
subsequent provisions).
(c) For the purposes of this Article Seventh and Articles Eighth and
Ninth.
(A) A "person" shall mean any individual, firm, corporation or other
entity.
<PAGE>
(B) "Interested Shareholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
(1) is the beneficial owner, directly or indirectly, of more than 20
percent of the combined voting power of the then outstanding shares of
Voting Stock; or
(2) is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 20 percent or more of the
combined voting power of the then outstanding shares of Voting Stock;
or
(3) is an assignee of or has otherwise succeeded to the beneficial
ownership of any shares of Voting Stock that were at any time within
the two-year period immediately prior to the date in question
beneficially owned by an Interested Shareholder, if such assignment or
succession shall have occurred in the course of a transaction or series
of transactions not involving a public offering within the meaning of
the Securities Act of 1933.
(C) A person shall be a "beneficial owner" of any Voting Stock;
(1) which such persons or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(2) which such person or any of its Affiliates or Associates has (a)
the right to acquire (whether such right is exercisable immediately or
only after the passage of time), pursuant to any agreement, arrangement
or understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or (b) the right to vote or
direct the vote pursuant to any agreement, arrangement or
understanding; or
(3) which are beneficially owned, directly or indirectly, by any other
person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of Voting Stock.
(D) For the purposes of determining whether a person is an Interested
Shareholder pursuant to (c)(B) of this Article Seventh, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned through
application of (c)(C) of this Article but shall not include any other shares of
Voting Stock that may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or
otherwise.
(E) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as in effect on May 1, 1984.
(F) "Subsidiary" means any corporation of which more than 50% whose
outstanding stock having ordinary voting power in the election of directors is
owned, directly or indirectly by the Corporation or by a Subsidiary or by the
Corporation and one or more Subsidiaries; provided, however, that for the
purposes of the definition of Interested Shareholder set forth in (c)(B) of this
Article Seventh the term "Subsidiary" shall mean only a corporation of which a
majority of each class of equity security is owned, directly or indirectly, by
the Corporation.
<PAGE>
(G) "Disinterested Director" means any member of the Board of Directors
of the Corporation who is unaffiliated with, and not a nominee of, the
Interested Shareholder and was a member of the Board prior to the time that the
Interested Shareholder became an Interested Shareholder, and any successor of a
Disinterested Director who is unaffiliated with, and not a nominee of, the
Interested Shareholder and who is recommended to succeed a Disinterested
Director by a majority of Disinterested Directors then on the Board of
Directors.
(H) "Fair Market Value" means:
(1) in the case of stock, the highest closing sale price during a
30-day period immediately preceding the date in question of a share of
such stock on the Composite Tape for New York Stock Exchange-Listed
Stocks, or, if such stock is not quoted on the Composite Tape, on the
New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States Securities Exchange registered
under the Securities Exchange Act of 1934 on which such stock is
listed, or, if such stock is not listed on any such exchange, the
highest closing sales price or bid quotation with respect to a share of
such stock during the 30-day period preceding the date in question on
the National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or if no such quotations
are available, the fair market value on the date in question of a share
of such stock as determined by a majority of the Disinterested
Directors in good faith; and
(2) in the case of stock of any class or series which is not traded on
any United States registered securities exchange nor in the
over-the-counter market or in the case of property other than cash or
stock, the fair market value of such property on the date in question
as determined by a majority of the Disinterested Directors in good
faith.
(I) In the event of any Business Combination in which the Corporation
survives, the phrase "other consideration to be received" as used in (b)(B)(1)
and (2) of this Article Seventh shall include the shares of Common Stock and/or
the shares of any other class of outstanding Voting Stock retained by the
holders of such shares.
(J) "Announcement Date" means the date of first public announcement of
the proposed Business Combination.
(K) "Determination Date" means the date on which the Interested
Shareholder became an Interested Shareholder.
(d) A majority of the Disinterested Directors of the Corporation shall
have the power and duty to determine, on the basis of information known to them
after reasonable inquiry, all facts necessary to determine compliance with this
Article Seventh, including, without limitation,
(A) whether a person is an Interested Shareholder,
(B) the number of shares of Voting Stock beneficially owned by any
person,
(C) whether a person is an Affiliate or Associate of another person,
<PAGE>
(D) whether the requirements of (b) of this Article Seventh have been
met with respect to any Business Combination, and
(E) whether the assets which are the subject of any Business
Combination have, or the consideration to be received for the issuance or
transfer of securities by the Corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of $25,000,000 or more. The good
faith determination of a majority of the Disinterested Directors on such matters
shall be conclusive and binding for all purposes of this Article Seventh.
(e) Nothing contained in this Article Seventh shall be construed to
relieve any Interested Shareholder from any fiduciary obligation imposed by law.
(f) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
60 percent of the voting power of the Voting Stock, voting together as a single
class, shall be required to alter, amend, or repeal this Article Seventh or to
adopt any provision inconsistent therewith.
EIGHTH: Any purchase of Voting Stock by the Corporation or any
Subsidiary from an Interested Shareholder who has Beneficially Owned such
securities for less than three years prior to the date of such purchase, other
than pursuant to an offer to the holders of all of the outstanding shares of the
same class as those so purchased, at a per share price in excess of the Fair
Market Value at the time of such purchase of the shares so purchased, shall
require the affirmative vote of the holders of 60% in interest of the
outstanding Voting Stock of the Corporation, not Beneficially Owned by the
Interested Shareholder, voting together as a single class.
NINTH: Notwithstanding any other provision of this Certificate of
Incorporation or the By-laws of the Corporation (and in addition to any other
vote that may be required by law, this Certificate of Incorporation or the
By-laws), the affirmative vote, in person or by proxy, at any meeting called as
provided in the By-laws, of the holders of 60% in interest of the outstanding
Voting Stock of the Corporation (considered for this purpose as one class)
including the holders of 60% in interest of the outstanding Voting Stock of the
Corporation held by persons other than an Interested Shareholder shall be
required to amend, alter or repeal any provision of Article Seventh, Article
Eighth or this Article Ninth of this Certificate of Incorporation or to amend,
alter or repeal Section 1.2, Section 2.1, Section 2.2, Section 2.4, or Section
2.8 of the By-laws of the Corporation or to adopt any new provision inconsistent
with such Articles or By-laws; provided, however, that such provisions may be
amended, altered, repealed or adopted, by either (a) the affirmative vote of 60%
of the Disinterested Shareholders or (b) the approval of a majority of the
Disinterested Directors and the holders of a majority in interest of the
outstanding Voting Stock of the Corporation. For the purposes of this Article
Ninth the term "Disinterested Shareholders" shall mean holders of the
outstanding Voting Stock of the Corporation other than Interested Shareholders.
TENTH: A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law of the
State of Delaware, or (iv) for an transaction from which the director derived an
improper personal benefit.
<PAGE>
If the General Corporation Law of the State of Delaware is amended to
authorize the further elimination or limitation of the liability of directors,
then the liability of a director of the Corporation shall be eliminated or
limited to the fullest extent permitted by the General Corporation Law of the
State of Delaware, as so amended.
Any repeal or modification of this Article by the stockholders of the
Corporation shall not adversely affect any right to protection of a director of
the Corporation existing at the time of such repeal or modification.
<PAGE>
WE, THE UNDERSIGNED, George W. Benoit and Alan D. Aschner, being the
duly elected and acting President and Secretary of the above named corporation,
respectively, do make and file this restated certificate of incorporation
pursuant to the provision of Section 242 and 245 of the Delaware General
Corporation Law and hereby declare and certify that this Restated Certificate of
Incorporation has been duly adopted in accordance with the provisions of those
sections and, intending that this be an acknowledgment within the meaning of
Section 103 of the Delaware General Corporation Law, have executed this document
on May 20, 1987.
ATTEST:
/s/ Alan D. Aschner /s/ George W. Benoit
------------------------ ---------------------------
Alan D. Aschner George W. Benoit
Secretary President
(CORPORATE SEAL)
<PAGE>
Filed 6/8/89
CERTIFICATE OF AMENDMENT
OF
RESTATED
CERTIFICATE OF INCORPORATION
OF
MATTHEWS & WRIGHT GROUP, INC.
MATTHEWS & WRIGHT GROUP, INC., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Restated Certificate of Incorporation of said
corporation was amended by changing Article FOURTH thereof so that, as
amended, said Article now reads as follows:
"FOURTH: The total number of shares which the Corporation shall have
the authority to issue is 12,000,000 shares; of which 10,000,000 shares shall be
Common Stock, par value $.10 per share (the "Common Stock"), and 2,000,000
shares shall be Preferred Stock, no par value per share (the "Preferred Stock").
The Preferred Stock may be issued from time to time in one or more
series with such designations, preferences and relative participating, optional
or other special rights and qualifications, limitations or restrictions thereof,
as shall be stated in the resolutions adopted by the Board of Directors
providing for the issuance of such Preferred Stock or series thereof; and the
Board of Directors is hereby vested with authority to fix such designations,
preferences and relative participating, optional or other special rights or
qualifications, limitations or restrictions for each series, including, but not
by way of limitation, the power to fix the redemption and liquidation
preferences, the rate of dividends payable and the time for and the priority of
payment thereof and to determine whether such dividends shall be cumulative or
not and to provide for and fix the terms of conversion of such Preferred Stock
or any series thereof into Common Stock of the Corporation and fix the voting
power, if any, of shares of Preferred Stock or any series thereof."
SECOND: That the above amendment was approved by the Board of Directors
of said corporation, at a meeting duly held and was approved at the
1989 Annual Meeting of Shareholders, in accordance with the applicable
provisions of Section 242 of the General Corporation Law of the State
of Delaware.
THIRD: That the capital of said Corporation will not be reduced under
or by reason of said amendment.
<PAGE>
IN WITNESS WHREOF, MATTHEWS & WRIGHT GROUP, INC. has caused this
certificate to be signed by Roger J. Burns as Vice President, and attested by
Susan Forsyth, as Assistant Secretary, this 7th day of June, 1989.
MATTHEWS & WRIGHT GROUP, INC.
By: /s/ Roger J. Burns
------------------------------
Roger J. Burns, Vice President
(SEAL)
ATTEST:
/s/ Susan Forsyth
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Susan Forsyth, Asst. Secretary
State of New York )
) SS.:
County of New York)
BE IT REMEMBERED that, on June 7, 1989, before me, a Notary Public duly
authorized by law to take acknowledgement of deeds, personally came Roger J.
Burns, Vice President of Matthews & Wright Group, Inc., who duly signed the
foregoing instrument before me and acknowledged that such signing is his act and
deed, that such instrument as executed is the act and deed of said corporation,
and that the facts stated therein are true.
GIVEN under my hand on June 7, 1989.
/s/ John A. Begley
--------------------------
Notary Public
<PAGE>
Filed 9/14/90
CERTIFICATE OF AMENDMENT
OF
RESTATED
CERTIFICATE OF INCORPORATION
OF
MATTHEWS & WRIGHT GROUP, INC.
MATTHEWS & WRIGHT GROUP, INC., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Restated Certificate of Incorporation of said
corporation, as amended, was further amended by changing Article FOURTH thereof
so that, as now amended, said Article now reads as follows:
"FOURTH: The total number of shares which the Corporation shall have
the authority to issue is 10,000,000 shares, all of which shall be
Common Stock, par value $.10 per share (the "Common Stock")."
SECOND: That the above amendment was approved by the Board of Directors
of said corporation, at a meeting duly held and was approved at the 1990 Annual
Meeting of Shareholders, in accordance with the applicable provisions of Section
242 of the General Corporation Law of the State of Delaware.
THIRD: That the capital of said Corporation will not be reduced under
or by reason of said amendment.
<PAGE>
IN WITNESS WHEREOF, MATTHEWS & WRIGHT GROUP, INC. has caused this
certificate to be signed by Roger J. Burns as First Vice President, and attested
by Susan Forsyth, as Assistant Secretary, this 9th day of August, 1990.
MATTHEWS & WRIGHT GROUP, INC.
By: /s/ Roger J. Burns
----------------------------
Roger J. Burns
First Vice President
(Seal)
ATTEST:
/s/ Susan Forsyth
- ------------------------------
Susan Forsyth, Asst. Secretary
State of New York )
) SS.:
County of New York)
BE IT REMEMBERED that, on August 9, 1990, before me, a Notary Public
duly authorized by law to take acknowledgement of deeds, personally came Roger
J. Burns, First Vice President of Matthews & Wright Group, Inc., who duly signed
the foregoing instrument before me and acknowledged that such signing is his act
and deed, that such instrument as executed is the act and deed of said
corporation, and that the facts stated therein are true.
GIVEN under my hand on August 9, 1990.
/s/ John A. Begley
--------------------------
Notary Public
<PAGE>
Filed 12/2/91
CERTIFICATE OF AMENDMENT
OF
MATTHEWS & WRIGHT GROUP, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "corporation")
is Matthews & Wright Group, Inc.
2. The certificate of incorporation of the corporation is hereby
amended by striking out Article First thereof and by substituting in lieu of
said Article First the following new Article First:
"FIRST: The name of the corporation is Helmstar Group, Inc."
3. The amendment of the certificate of incorporation herein certified
has been duly adopted in accordance with the provisions of Sections 228 and 242
of the General Corporation Law of the State of Delaware. Prompt written notice
of the adoption of the amendment herein certified has been given to those
stockholders who have not consented in writing thereto, as provided in Section
228 of the General Corporation Law of the State of Delaware.
Signed and attested to on November 27, 1991.
MATTHEWS & WRIGHT GROUP, INC.
By: /s/ George W. Benoit
---------------------------
George W. Benoit
Chairman of the Board
and President
ATTEST:
/s/ Alan D. Aschner
- ---------------------------
Alan D. Aschner, Secretary
<PAGE>
Filed 5/7/92
CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE
AND OF REGISTERED AGENT
It is hereby certified that:
1. The name of the corporation (hereinafter called the "corporation") is
HELMSTAR GROUP, INC.
2. The registered office of the corporation within the State of Delaware is
hereby changed to 32 Loockerman Square, Suite L-100, City of Dover 19901, County
of Kent.
3. The registered agent of the corporation within the State of Delaware is
hereby changed to The Prentice-Hall Corporation System, Inc., the business
office of which is identical with the registered office of the corporation as
hereby changed.
4. The corporation has authorized the changes hereinbefore set forth by
resolution of its Board of Directors.
Signed on January 15, 1992.
/s/ Nicholas J. Letizia
-----------------------------
Nicholas J. Letizia,
Vice President
Attest:
/s/ Susan Forsyth
- ----------------------
Susan Forsyth
Assistant Secretary
MOVIEPLEX REALTY LEASING, L.L.C.
and
FIRST UNION NATIONAL BANK
as Trustee
INDENTURE OF TRUST
Dated as of November 1, 1997
Movieplex Realty Leasing, L.L.C.
Adjustable Rate Tender Securities
(Carmike Cinemas, Inc.)
1997 Series A and Series B
-----------------------------------------------------------------
<PAGE>
INDENTURE OF TRUST
THIS INDENTURE OF TRUST is dated as of November 1, 1997, by and between
MOVIEPLEX REALTY LEASING, L.L.C., a New Jersey limited liability company (the
"Issuer"), and First Union National Bank, a national banking institution duly
organized, validly existing and authorized to accept and execute trusts of the
character herein set out with a corporate trust office located at 999 Peachtree
Street, N.E., Suite 1100, Atlanta, Georgia 30309, as Trustee (the "Trustee").
RECITALS
A. The Issuer has agreed to issue the Bonds and apply the proceeds of
the Bonds (1) to finance a portion of the Costs of the Projects; and (2) to pay
certain Financing Costs in connection with of the Bonds.
B. Pursuant to the Lease, the Issuer shall lease the Leased Property to
the Company and the Company shall pay Rent to the Issuer.
C. The Bonds shall be special, limited obligations of the Issuer,
payable solely from the Trust Estate or from the liquidation of collateral
pledged by the Issuer as security for its performance hereunder.
D. The Issuer and the Trustee have agreed to enter into this Indenture
of Trust, pursuant to which the Bonds shall be issued.
E. All things necessary to make the Bonds, when authenticated by the
Trustee and issued as in this Indenture provided, the valid, binding and legal
obligations of the Issuer according to the import thereof, and to constitute
this Indenture a valid assignment and pledge of the amounts assigned and pledged
to the payment of the principal of and interest on the Bonds have been done and
performed, and the creation, execution and delivery of this Indenture, and the
creation, execution and issuance of the Bonds, subject to the terms hereof, have
in all respects been duly authorized.
GRANTING CLAUSES
NOW, THEREFORE, THIS INDENTURE OF TRUST WITNESSETH;
That the Issuer, in consideration of the premises and the acceptance by
the Trustee of the trusts hereby created and of the purchase and acceptance of
the Bonds by the Holders thereof, and of the issuance by the LC Issuers of the
Letters of Credit, and of the sum of one dollar, lawful money of the United
States of America, to it duly paid by the Trustee at or before the execution and
delivery of these presents, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, (A) in order to secure the payment of
the principal of and premium, if any, and interest on and the purchase price of
the Bonds according to their tenor and effect, and to secure the performance and
observance by the Issuer of all the covenants expressed herein and in the Bonds,
does hereby assign and grant a security interest in and to (i) the Letters of
Credit and the proceeds of all drawings made thereunder and (ii) the Bond Fund
and the various accounts therein (other than the Excess Bond Proceeds Account)
and all amounts on deposit from time to time therein, (collectively, the "Bond
Trust Estate") to the Trustee and its successors in trust and assigns forever,
and (B) in order to secure the payment of all amounts payable by the Issuer
pursuant to the Reimbursement Agreement, and to secure the performance and
<PAGE>
observance by the Issuer of all the covenants expressed in the Reimbursement
Agreement, does hereby assign and grant a security interest in and to the Excess
Bond Proceeds Account within the Bond Fund, and the Project Fund and all of the
Accounts therein, and all amounts on deposit from time to time therein (the
"Letters of Credit Trust Estate" and, together with the Bond Trust Estate, the
"Trust Estate").
EXPRESSLY RESERVING, however, to the Issuer the Reserved Rights.
TO HAVE AND TO HOLD all and singular the Trust Estate whether now owned
or hereafter acquired, unto the Trustee and its respective successors in said
trust and assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for
the equal and proportionate benefit, security and protection of (A) as to the
Bond Trust Estate, all present and future Holders of the Bonds from time to time
issued under and secured by this Indenture without privilege, priority or
distinction as to the lien or otherwise of any of the Bonds over any of the
other Bonds except in the case of funds held hereunder for the benefit of
particular Holders of Bonds and (B) as to the Letters of Credit Trust Estate,
the Agent for the benefit of the Letters of Credit Issuers;
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns, shall
well and truly pay, or cause to be paid the obligations of the Issuer under the
Reimbursement Agreement and the principal of, premium, if any, and interest on
the Bonds due or to become due thereon (upon redemption or otherwise), at the
times and in the manner set forth in the Bonds according to the true intent and
meaning thereof, and shall cause the payments to be made on the Bonds as
required hereunder, or shall provide, as permitted hereby, for the payment
thereof by depositing with the Trustee the entire amount due or to become due
thereon, and shall well and truly cause to be kept, performed and observed all
of its covenants and conditions pursuant to the terms of this Indenture, and
shall pay or cause to be paid to the Trustee all sums of money due or to become
due to it in accordance with the terms and provisions hereof and all obligations
of the Company under the Lease have been paid, then upon the final payment
thereof this Indenture and the rights hereby granted shall cease, determine and
be void, except to the extent specifically provided in Article X hereof;
otherwise this Indenture shall remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that
all Bonds issued and secured hereunder are to be issued, authenticated and
delivered and all said property, rights and interests, including, without
limitation, the amounts payable under the Lease and any other amounts hereby
assigned and pledged are to be dealt with and disposed of under, upon and
subject to the terms, conditions, stipulations, covenants, agreements, trusts,
uses and purposes as herein expressed, and the Issuer has agreed and covenanted,
and does hereby agree and covenant with the Trustee and with the respective
Holders of the Bonds as follows:
<PAGE>
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used but not defined in
this Indenture shall have the meanings given to them in the Lease or the
Reimbursement Agreement, as the case may be. In addition, the following terms
shall have the meanings specified in this Article, unless the context otherwise
requires:
"Act of Bankruptcy of an LC Issuer" occurs when an LC Issuer, as issuer
of a Letter of Credit, becomes insolvent or fails to pay its debts generally as
such debts become due or admits in writing its inability to pay any of its
indebtedness or consents to or petitions for or applies to any authority for the
appointment of a receiver, liquidator, trustee or similar official for itself or
for all or any substantial part of its properties or assets or any such trustee,
receiver, liquidator or similar official is otherwise appointed or when
insolvency, reorganization, arrangement or liquidation proceedings (or similar
proceedings) are instituted by or against such LC Issuer.
"Additional Bonds" means any Series of Additional Bonds issued pursuant
to Section 2.05A hereof.
"Affiliate" of any Person means (i) any other Person which directly, or
indirectly through one or more intermediaries, controls such Person, (ii) any
other Person which directly, or indirectly through one or more intermediaries,
is controlled by or is under common control with such Person, or (iii) any other
Person of which such Person owns, directly or indirectly, 20% or more of the
common stock or equivalent equity interests. As used herein, the term "control"
means possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agency and Development Agreement" means the Agency and Development
Agreement dated the Closing Date between the Issuer and the Company, pursuant to
which, among other things, the Company agrees to act as development agent for
the Issuer for the purpose of selecting the Individual Properties and
constructing the Applicable Projects.
"Agent" means, (i) initially, Wachovia Bank, N.A., and its successors
and assigns in that capacity as agent for the LC Issuers issuing the Letters of
Credit, and (ii) thereafter, either (A) in the event that only one Alternate
Letter of Credit is outstanding, the LC Issuers issuing such Alternate Letter of
Credit or (B) in the event that there are no Letters of Credit or Alternate
Letters of Credit outstanding, the Trustee.
"Agent Consent Period" means any period during which (i) the Letters of
Credit are in effect, (ii) no LC Issuer shall have wrongfully failed to honor a
drawing, and (iii) there shall not have occurred an Act of Bankruptcy of an LC
Issuer.
"Alternate Letters of Credit" means, collectively, any and all
irrevocable, direct-pay letters of credit issued in confirmation of, or in
replacement or substitution for, any Letters of Credit or Alternate Letters of
Credit, which (i) authorize drawings thereunder by the Trustee, (ii) are issued
by one or more national banking associations, banks, trust companies or other
financial institutions which are Eligible Lenders and (iii) satisfy the
requirements of Section 5.08.
<PAGE>
"Annual Payment Date" means the first (1st) Monday of each December
commencing on the first (1st) Monday of December, 1998 of each calendar year,
provided, however, that if such day is not a Business Day, then such Annual
Payment Date shall be the next succeeding Business Day.
"Applicable Acquisition Agreement" means, with respect to each
Individual Property, the agreement between the Issuer, as purchaser or ground
lessee, as the case may be, and the seller of such Individual Property, as
seller or ground lessor, as the case may be, pursuant to which the Issuer has
agreed or will agree to purchase or ground lease such Individual Property.
"Applicable Approvals" means, with respect to each Individual Property,
all permits, approvals and authorizations, including without limitation site
plan approval or similar land development approvals, which are required under
Legal Requirements or by Governmental Authorities in connection with the
acquisition or lease of such Individual Property, the construction of the
Improvements and the Off-Site Improvements and the other activities constituting
part of the Applicable Project.
"Applicable Assignment of Rents" means, with respect to each Individual
Property, the assignment of rents pursuant to which the Issuer assigns to the
Agent all of the Issuer's right, title and interest in and to all leases
affecting or relating to such Individual Property.
"Applicable Completion Date" means, with respect to each Individual
Property, the date as of which the Improvements thereon are substantially
completed, as such date shall be evidenced by a final certificate of occupancy
issued by the applicable Governmental Authority and certified by the Company to
the Issuer and the Agent pursuant to Section 7(e) of the Agency and Development
Agreement.
"Applicable Construction Agreement" means, with respect to each
Individual Property, the agreement or agreements between the Issuer and any
Contractor(s) with respect to the construction of the Improvements on or at such
Individual Property.
"Applicable Mortgage" means, with respect to each Individual Property,
the fee or leasehold mortgage and security agreement, deed of trust or similar
document pursuant to which the Issuer grants to the Agent a first lien on and
security interest in and to its interest in such Individual Property.
"Applicable Plans and Specifications" means, with respect to each
Individual Property, the architectural and engineering drawings and
specifications describing the construction of the Improvements thereon which
have been prepared for and accepted by the Company and which are approved by the
Issuer and the Agent prior to the commencement of any construction with respect
to the Applicable Project.
"Applicable Project" means, with respect to each Individual Property,
the acquisition or lease, construction, renovation or installation of such
Individual Property, the Improvements thereon and the Off-Site Improvements
relating thereto, including any expansion of, or additional equipment installed
in, any Individual Property, which is funded in whole or in part by the proceeds
of the issuance of the Bonds, for use by the Company pursuant to the Lease or
any Supplemental Lease.
"Applicable State" means, with respect to each Individual Property, the
state or commonwealth within which such Individual Property, or any portion
thereof, is located.
<PAGE>
"Assignments of Rents" means, collectively, all of the Applicable
Assignments of Rents from time to time.
"Authorized Officer" or "Authorized Representative" means, (1) with
respect to the Issuer: any manager of the Issuer; (2) with respect to the
Company: the President, any Executive Vice President or any Vice President or
such other person at the time and from time to time designated by written
certificate furnished to the Issuer and the Trustee containing the specimen
signatures of such person and signed on behalf of the Company by the Secretary
or Assistant Secretary of the Company; (3) with respect to the Trustee: any
officer of the Trustee authorized by the Trustee to act or execute documents on
behalf of the Trustee; and (4) with respect to the Agent: any officer.
"Available Moneys" means (i) proceeds of a drawing under the Letters of
Credit and (ii) any moneys paid to the Trustee which have been on deposit with
the Trustee in the Bond Fund for at least 91 days during and prior to which no
Event of Bankruptcy shall have occurred, and the proceeds of investments of such
moneys, and with respect to which the Trustee has received an opinion of
nationally recognized counsel experienced in bankruptcy matters and acceptable
to the Trustee and the Rating Agencies to the effect that the use of such moneys
to pay principal of, premium (if any) on or interest on the Bonds, as
applicable, will not constitute an avoidable transfer under Section 547 of the
United States Bankruptcy Code in the event of a bankruptcy case under the United
States Bankruptcy Code by the Issuer or by or against the Company or any
Affiliate, as debtor; provided that when used with respect to payment of amounts
due in respect of any Pledged Bonds or Company Bonds, "Available Moneys" means
any moneys held by the Trustee and available for such payment pursuant to the
terms of this Indenture except for moneys drawn under the Letters of Credit.
"Bankruptcy Code" means Title 11 of the United States Code (11 U.S.C.
ss. 101-1330), as amended from time to time.
"Basic Rent" means the rent required to be paid pursuant to the
provisions of Section 3.5 of the Lease.
"Basic Rent Payment" means the payment of Basic Rent.
"Bond" or "Bonds" means, any one or more of the Series A Bonds or the
Series B Bonds or of any Series of Additional Bonds or Refunding Bonds or any
Bonds which are hereafter authenticated and delivered in lieu of or in
substitution for such Bonds pursuant to the Indenture.
"Bond Fund" means the fund so designated and established pursuant to
Section 5.04.
"Bond Purchase Agreement" means, collectively, the bond purchase
agreements dated the Closing Date among the Issuer and the Bond Purchaser
relating to the issuance and sale of the Bonds, as the same may be amended or
supplemented from time to time.
"Bond Purchaser" means, collectively, The Charles Schwab Family of
Funds on behalf of Schwab Money Market Fund, Schwab Value Advantage Money Fund,
Schwab Institutional Advantage Money Fund and Schwab Retirement Money Fund.
"Bondholder Tender Notice" means a written notice meeting the
requirements of Section 4.01.
"Book-Entry Bonds" means any Series of Bonds which are authorized to be
issued in book entry form.
<PAGE>
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York, New York and Georgia are authorized by law
to close.
"Capitalized Interest Account" means the account so designated and
established in the Project Fund pursuant to Section 5.02A.
"Capitalized Interest Reserve Account" means the account so designated
and established in the Project Fund pursuant to Section 5.02B.
"Closing Date" means November 20, 1997, being the date on which the
Transaction Documents shall be executed and delivered by the respective parties
thereto and the date on which the Trustee shall authenticate and deliver the
Bonds.
"Company" means Carmike Cinemas, Inc., a Delaware corporation, and its
successors and assigns.
"Company Bonds" means any Bonds of which ownership is registered in the
name of the Company or any Affiliate, other than Pledged Bonds.
"Contractor" means, with respect to each Applicable Project, any
contractor selected by the Company, with the approval of the Issuer and the
Agent, to construct, renovate and install such Applicable Project.
"Conversion" means the conversion of the interest rate on the Bonds
from the Weekly Mode to the Term Mode as provided in Section 2.05.
"Conversion Date" means any Interest Payment Date on which the Rate
Mode of the Bonds is converted from the Weekly Mode to the Term Mode pursuant to
Section 2.05.
"Conversion Option" means the option of the Issuer (to be exercised at
the direction of the Company) to convert the interest rate on the Bonds from the
Weekly Mode to the Term Mode as provided in, and subject to, Section 2.05.
"Costs" or "Costs of the Projects" means (i) all Hard and Soft Costs,
plus (ii) all Financing Costs, plus (iii) all Capitalized Interest Costs, minus
(iv) all interest earned prior to the Final Project Completion Date on all
amounts held in the Funds and Accounts under the Indenture.
"Debt Service" means, for any period or payable at any time, the
principal of, premium, if any, on and interest on the Bonds for that period or
payable at that time whether due at maturity or upon acceleration or redemption.
"Defeasance Obligations" means (a) Government Obligations, and (b) any
Qualified Investments that are rated by either Rating Agencies in any of its
highest long-term debt rating categories (without regard to pluses or minuses)
which obligations are not subject to redemption prior to maturity other than at
the option of the holder or which have been called for redemption at a stated
future date.
"DTC" means The Depository Trust Company, New York, New York, a limited
purpose trust company organized under the laws of the State of New York, and
its successors and assigns.
"Equity Investment Account" means the account so designated and
established in the Project Fund pursuant to Section 5.02E.
<PAGE>
"Event of Bankruptcy" means a petition by or against the Issuer or any
"Affiliate" (as defined in the Bankruptcy Code) of the Issuer under the
Bankruptcy Code or any other bankruptcy act or any similar act which may be
enacted which shall have been filed, unless such petition shall have been
dismissed and such dismissal shall be final and not subject to appeal.
"Event of Default" means any of the events described as an Event of
Default in Section 7.01.
"Excess Bond Proceeds Account" means the account so designated and
established in the Bond Fund pursuant to Section 5.04.
"Expiration Date" means the stated expiration date of the Letters of
Credit, as such date may be extended from time to time by the Agent and the
Lenders.
"Extraordinary Services" and "Extraordinary Expenses" mean all services
rendered and all reasonable expenses properly incurred by the Trustee or any of
its agents under this Indenture, other than Ordinary Services and Ordinary
Expenses.
"Federal Funds Rate" shall have the meaning given to such term in the
Reimbursement Agreement.
"Final Project Completion Date" means the date which is twenty-four
(24) months after the Series Issue Date.
"Financial Advisor" means RealVest Capital Corporation, a New Jersey
corporation.
"Financing Costs" means and includes all fees and expenses necessary to
issue, offer and sell the Bonds and to arrange for the Landlord's Equity Amount,
including without limitation (i) the fees and reimbursable expenses of the
Financial Advisor, the Placement Agent, the Agent and the Lenders, (ii) the fees
and reimbursable expenses of the attorneys for the Landlord, the Tenant, the
Agent and the Lenders and (iii) all other costs relating to the issuance and
sale of the Bonds, including Rating Agency fees, printing expenses, Trustee
setup fees and Trustee's counsel fees.
"Financing Costs Account" means the account so designated and
established in the Project Fund pursuant to Section 5.02C.
"Fund" means any of the funds established under the Indenture.
"Fund Account Security Agreement" shall have the meaning given to such
term in the Reimbursement Agreement.
"Government Obligations" means direct obligations of, or obligations
the principal of and interest on which are unconditionally guaranteed by, the
United States of America, including obligations issued or held in book-entry
form on the books of the Department of the Treasury of the United States of
America and including a receipt, certificate or any other evidence of an
ownership interest in such obligations or in specified portions thereof (which
may consist of specified portions of interest thereon).
<PAGE>
"Hard and Soft Costs" means and shall be deemed to include, together
with any other proper item of cost which is not specifically mentioned in the
Lease, whether incurred prior to or after the date of the Lease, (a) the cost of
the acquisition or the ground leasing of the Leased Property, fees and expenses
related thereto; (b) the costs and expenses of the Issuer which are incurred for
labor and materials and payments to Contractors, builders and materialmen in
connection with the acquisition or leasing, construction, renovation and
installation of any Individual Property; (c) the cost of contract bonds and of
insurance of any kind that may be required or that may be necessary during the
course of acquisition, construction, renovation and installation of any
Individual Property which is not paid by the Contractor or Contractors; (d) the
costs and expenses of the Issuer for test borings, surveys, estimates, plans and
specifications and preliminary investigations therefor, and for supervising
construction, as well as for the performance of all other duties which are
required by or which are consequent to the proper construction, acquisition,
renovation and installation of any Individual Property; (e) [Intentionally
Omitted]; (f) all other costs which the Issuer shall be required to pay under
the terms of any Applicable Acquisition Agreement or Applicable Construction
Agreement for the acquisition, construction, renovation or installation of any
Individual Property; (g) any sums which are required to reimburse the Issuer for
any advances which are made by it for any of the above items, or for any other
costs which are incurred and for work which has been done by it, provided that
same is properly chargeable to any Individual Property; and (h) such other
expenses which are not specified in the Lease or the Agency and Development
Agreement and which may be necessary or incidental to the construction,
acquisition, renovation and installation of any Individual Property, the
financing thereof and the placing of the same in use and operation. "Hard and
Soft Costs" shall also include the costs and expenses incurred by any agent of
the Issuer or any other Person for any of the above-mentioned items.
"Holder" or "Bondholder" means the Person in whose name a Bond is
registered on the Register.
"Improvements" means (i) with respect to each Individual Property, all
buildings, structures and other improvements (and additions thereto or
substitutions or modifications thereof) presently existing thereon, and all
buildings, structures and other improvements (and additions thereto or
substitutions or modifications thereof) to be constructed thereon as part of the
Applicable Project in accordance with the Applicable Construction Agreement, the
Applicable Approvals and the Applicable Plans and Specifications, and (ii) with
respect to the Leased Property, all Improvements constructed or to be
constructed, collectively, on all of the Individual Properties; provided,
however, that the Improvements shall not include any Equipment.
"Indenture" means this Indenture of Trust, as amended or supplemented
from time to time.
"Indexing Agent" means, initially, RealVest Securities Corporation and
any Person meeting the qualifications of, and designated from time to time to
act as Indexing Agent under, Section 8.17. "Principal Office of the Indexing
Agent" means the principal office of the Indexing Agent at the address of the
Indexing Agent set forth in Section 11.03, or any other office so designated in
writing by the Indexing Agent to the Issuer, the Trustee, the Company, the
Remarketing Agent and the Agent.
"Individual Property" means, individually, (i) each Supplemental
Property and (ii) each Substitute Property which is substituted for an
Individual Property pursuant to Section 4.4 of the Lease.
<PAGE>
"Interest Payment Date" means the first Monday of each calendar month
(or, if such date is not a Business Day, the next succeeding Business Day),
commencing on January 5, 1998.
"Issuer" means Movieplex Realty Leasing, L.L.C., a New Jersey limited
liability company, and its successors and assigns.
"LC Issuers" shall have the meaning given to such term in the
Reimbursement Agreement.
"LC Participants" shall have the meaning given to such term in the
Reimbursement Agreement.
"Lease" means that certain Master Lease between the Issuer and the
Company dated the Closing Date as the same may be amended or supplemented.
"Leased Property" means, collectively, all of the Individual Properties
now or from time to time hereafter leased by the Issuer to the Company pursuant
to the Lease or any Supplemental Lease hereafter entered into between the Issuer
and the Company.
"Lenders" shall have the meaning given to such term in the
Reimbursement Agreement.
"Letters of Credit" means, collectively, the irrevocable, direct-pay
letters of credit issued by the LC Issuers to the Trustee on the date of
execution and delivery of the Indenture and any Alternate Letters of Credit,
under which the Trustee is authorized, subject to the terms and conditions
thereof, to draw, in the aggregate, up to (a) an amount equal to the principal
amount of the Outstanding Bonds (i) to enable the Trustee to pay the principal
amount of the Bonds when due, at maturity, upon redemption or upon acceleration
and (ii) to enable the Trustee to pay the portion of the purchase price of Bonds
tendered to it and not remarketed corresponding to the principal amount of such
Bonds, plus (b) an amount equal to interest to accrue at the Maximum Rate on the
Outstanding Bonds for 43 days (i) to enable the Trustee to pay interest on the
Bonds when due and (ii) to enable the Trustee to pay the portion of the purchase
price of Bonds tendered to it and not remarketed corresponding to the accrued
interest on such Bonds, as the same may be amended, transferred, reissued or
extended in accordance with the Indenture.
"Letter of Credit Debt Service Account" means the account so designated
and established in the Bond Fund pursuant to Section 5.04.
"Letter of Credit Purchase Account" means the special trust account so
designated and established in the Bond Fund pursuant to Section 4.04.
"Lease Payments" means the Rent payments required to be made by the
Company pursuant to Article 3 of the Lease.
"Master Assignment" means the Master Assignment of Contracts and
Agreements, dated the Closing Date from the Issuer, as assignor, to the Agent,
as assignee, and executed by the Company and the Trustee.
"Maximum Rate" means, initially, 10% per annum, and thereafter, such
higher rate specified by the Issuer at the request of the LC Issuers which does
not exceed 12% per annum or any higher rate which may be approved hereunder by
<PAGE>
resolution of the Issuer; provided, however, that the LC Issuers shall deliver a
written amendment or replacement of the Letters of Credit increasing the
Interest Component (as defined in the Letters of Credit) to 43 days interest at
the new Maximum Rate specified by the LC Issuers. The consent of the Bondholders
shall not be required for any such increase in the Maximum Rate.
"Money Market Equivalent Yield" means the unweighted daily average of
the discounted 30-day Commercial Paper Rate (AA-Financial Composite), converted
to a money market equivalent yield (i.e., actual/360 days), for all Business
Days within the preceding Weekly Rate Period, as reported in the Board of
Governors of the Federal Reserve Board Statistical Release (or another
recognized reporting source approved by the Issuer and the Agent.) [Regarding
the computation of interest for a Weekly Rate Period, see Section 2.03.]
"Mortgages" means, collectively, all of the Applicable Mortgages from
time to time.
"Net Proceeds" means any insurance proceeds or condemnation award paid
with respect to any Individual Property remaining after payment therefrom of all
expenses incurred in the collection thereof.
"Off-Site Improvements" means (i) with respect to each Individual
Property, those improvements required to be constructed or installed pursuant to
the Applicable Approvals on land other than such Individual Property, and (ii)
with respect to the Leased Property, all Off-Site Improvements constructed or to
be constructed, collectively, on all of the Individual Properties.
"Ordinary Services" and "Ordinary Expenses" mean those services
normally rendered, and those expenses normally incurred, by a trustee under
instruments similar to this Indenture.
"Outstanding Bonds", "Bonds Outstanding" or "Outstanding" or
"outstanding" as applied to Bonds mean, as of the applicable date, all Bonds
which have been authenticated and delivered, or which are being delivered by the
Trustee under this Indenture, including Pledged Bonds and Company Bonds, except:
(a) Bonds cancelled or required to be cancelled upon
surrender, exchange or transfer, or cancelled or
required to be cancelled because of payment or
redemption on or prior to that date pursuant to
Section 2.11;
(b) On or after any purchase date for Bonds to be
purchased pursuant to Article IV, all Undelivered
Bonds (or portions of Bonds) which are purchased on
such date, provided that funds sufficient for such
purchase are on deposit with the Trustee;
(c) Bonds which are deemed paid in accordance with Article X;
and
(d) Bonds in substitution for which others have been
authenticated and delivered under Section 2.10.
For purposes of approval or consent by the Holders, "Outstanding Bonds," "Bonds
outstanding" or "outstanding" as applied to Bonds shall not include Bonds owned
by or on behalf of the Issuer, the Company or an Affiliate (unless all of the
outstanding Bonds are so owned), or the Agent (unless all of the outstanding
Bonds are so owned).
<PAGE>
"Person" means any individual, corporation, company, limited liability
company, voluntary association, partnership, limited liability partnership,
joint venture, trust, unincorporated organization or government (or any agency,
instrumentality or political subdivision thereof).
"Payment Direction Agreement" shall have the meaning given to such term
in the Lease.
"Placement Agent" means RealVest Securities Corporation, a New York
corporation.
"Placement, Indexing and Remarketing Agreement" means the Placement,
Indexing and Remarketing Agreement dated as of the date hereof between the
Issuer and RealVest Securities Corporation, as Placement, Indexing and
Remarketing Agent.
"Pledged Bonds" shall have the meaning assigned to such term in Section
4.05.
"Project Costs Account" means the account so designated and established
in the Project Fund pursuant to Section 5.02D.
"Project Fund" means the fund so designated and established pursuant to
Section 5.01A.
"Purchase Date" means (a) with respect to any optional tender for
purchase pursuant to Section 4.01 of Bonds in the Weekly Mode, any Business Day
designated as the date of such purchase pursuant to such Section and (b) with
respect to any mandatory purchase pursuant to Section 4.02, (1) in the case of
Bonds which are to be purchased upon conversion from one Rate Mode to another
Rate Mode, the Conversion Date, or if such Conversion Date is not a Business
Day, the first Business Day succeeding such Conversion Date, (2) in the case of
Bonds to be purchased in anticipation of the expiration of the Letters of
Credit, the Interest Payment Date next preceding the Expiration Date of the
Letters of Credit, and (3) in the case of Bonds to be purchased at the direction
of the Agent, the purchase date stipulated by the Agent pursuant to Section
7.03.
"Qualified Investments" means, (i) to the extent such investments are
legal investments of funds of the Issuer, and (ii) with respect to moneys from
time to time held in the Project Fund, the Capitalized Interest Account and the
Capitalized Interest Reserve Account, to the extent the Agent's security
interest in such investments is fully perfected as a first priority security
interest at all times:
(a) Direct obligations of, or obligations the principal
of and interest on which are unconditionally
guaranteed by, the United States of America and
certificates that evidence ownership of the right to
payments of principal or interest on such
obligations, provided that the obligations evidenced
by such certificates shall be held in trust by a bank
or trust company or a national banking association;
<PAGE>
(b) Obligations the timely payment of principal and
interest on which is fully guaranteed by any agency
or instrumentality of the United States of America,
which obligations shall be rated in one of the two
(2) highest long-term credit rating categories
(without regard to pluses and minuses) by any Rating
Agency;
(c) Mortgage-backed securities and senior debt
obligations issued by any of the following agencies
or such other like governmental or
government-sponsored agencies which may be hereafter
created (so long as such agencies continue to be
governmentally owned or sponsored): (i) the Federal
National Mortgage Association; (ii) the Government
National Mortgage Association; and (iii) the
Resolution Funding Corporation;
(d) Interests in a unit investment trust consisting of
obligations described in (c), which interests (or
obligations) are insured by a bond or financial
guarantee insurance policy and are rated in the
highest long-term credit rating categories by any
Rating Agency;
(e) Open market commercial paper maturing not later than
270 days from the date of creation thereof of
corporations that are organized under the laws of the
United States of America or any state thereof, and
having the rating of P-1 or A-1 or such other
comparable rating by a Rating Agency.
(f) Obligations of municipalities or corporations
organized under the laws of the United States of
America or any state thereof maturing not later than
one year from the date of acquisition thereof by the
Borrower or any Restricted Subsidiary, and having the
rating of AA or Aa or such other comparable rating by
a Rating Agency.
(g) Investment agreements, investment contracts or
general corporate obligations which by their terms
are not subordinate to any other obligations and
which constitute general obligations of the Issuer,
issued or guaranteed by (i) any bank or trust company
organized under the laws of any state of the United
States of America or any national banking association
(including the Trustee), or a branch of a foreign
bank duly licensed under the laws of the United
States of America or any state or territory thereof,
or (ii) any property and casualty insurance company
or insurance holding company, in each case having a
combined capital stock, surplus and undivided profits
of at least $1,000,000,000, and in either case of (i)
or (ii) whose senior debt is rated (or in the absence
of such debt, which has issued a letter of credit,
insurance policy or other credit enhancement device
<PAGE>
in support of a third party's debt which is rated) in
one of the two (2) highest long-term credit rating
categories (without regard to pluses and minuses) by
any Rating Agency;
(h) Negotiable or non-negotiable certificates of deposit,
time deposits, repurchase agreements, investment
agreements or other similar banking arrangements,
including bankers' acceptances, issued by any bank or
trust company (including the Trustee) the deposits of
which are insured by the Federal Deposit Insurance
Corporation, such securities to be secured to the
extent not so insured, as to principal and interest
or as to principal only by the securities listed in
clauses (a), (b), (c) or (d) above and in a manner
satisfactory to the Trustee and the Issuer, except
that repurchase agreements shall be secured as to
principal or principal and interest (as applicable)
solely by direct obligations of, or obligations the
principal and interest on which are unconditionally
guaranteed by, the United States of America which are
in the possession of the Trustee or a third party
acting solely as agent for the Trustee and in which
the Trustee has a perfected first security interest;
and
(i) Time deposits (which may be represented by
certificates of deposit) and interest-bearing demand
deposits in any bank, trust company, or financial
institution (including the Trustee) which is a member
of the Federal Deposit Insurance Corporation provided
that such time or demand deposits, to the extent not
fully and continuously insured by the FDIC, are fully
secured by direct obligations of the United States.
"Rate Mode" means the Weekly Mode or the Term Mode.
"Rating Agencies" means Moody's Investor Service, Inc., if the Bonds
are rated by such Person at the time, Standard & Poor's Ratings Group, if the
Bonds are rated by such Person at the time, and Fitch Investors Service, if the
Bonds are rated by such Person at the time, and their respective successors and
assigns, or if any shall be dissolved or no longer assigning credit ratings to
long term debt, then any other nationally recognized Person assigning credit
ratings to long term debt designated by the Issuer.
"Refunding Bonds" means all Bonds, whether issued in one or more
Series, authenticated and delivered on original issuance pursuant to Section
2.05B hereof, and any Bonds thereafter authenticated and delivered in lieu of or
in substitution for such Bonds.
"Register" means the books kept and maintained by the Trustee for
registration and transfer of Bonds pursuant to Section 2.08.
"Regular Record Date" means, while the Bonds are in the Weekly Mode,
the last Business Day preceding an Interest Payment Date and, while the Bonds
are in the Term Mode, the fifteenth day of the calendar month next preceding an
Interest Payment Date.
<PAGE>
"Reimbursement Agreement" means, initially, the reimbursement agreement
dated the Closing Date among the Agent, as agent for the Lenders, the Lenders
and the Issuer, as the same may be amended or supplemented from time to time in
accordance with the provisions thereof, and means, with respect to any Alternate
Letters of Credit, the reimbursement agreement, if any, relating to the issuance
of such Alternate Letters of Credit, as the same may be amended or supplemented
from time to time in accordance with the provisions thereof.
"Reimbursement Notes" shall have the meaning given to such term in the
Reimbursement Agreement.
"Remarketing Agent" means, initially, RealVest Securities Corporation
and any Person meeting the qualifications of, and designated from time to time
to act as Remarketing Agent under, Section 8.14. "Principal Office" of the
Remarketing Agent means the principal office of the Remarketing Agent at the
address of the Remarketing Agent set forth in Section 11.03, or any other office
so designated in writing by the Remarketing Agent to the Issuer, the Trustee,
the Company and the Agent.
"Remarketing Proceeds Purchase Account" means the special trust account
so designated and established in the Bond Fund pursuant to Section 4.03.
"Rent" means, collectively, Basic Rent and Supplemental Rent.
"Rent Payments" means the payments of Rent.
"Representation Letter" shall mean the representation letter from the
Issuer and the Trustee to DTC dated the Series Issue Date in the form typically
required by DTC.
"Requisition" means a standard requisition for disbursements from the
Project Fund, in the form attached as an exhibit to the Agency and Development
Agreement, duly executed by Authorized Representatives of the Issuer, the
Company and the Agent.
"Reserved Rights" means (i) the Issuer's right to receive Supplemental
Rent under the Lease (other than Supplemental Rent which is payable to or for
the account of the Agent), (ii) the Issuer's rights of reimbursement and
indemnity hereunder or under any Transaction Document, (iii) [Intentionally
Omitted], (iv) any rights of the Issuer to be released from liabilities and
obligations hereunder or under the Transaction Documents and to indemnity
contained in the Lease or the Transaction Documents and (v) the concurrent right
of the Issuer to receive any and all notices, reports, surveys, certificates,
financial statements and evidences of performance which the Company may be
required to furnish pursuant to the terms of the Lease.
"Revenues" means all (a) the Rent Payments, (b) other moneys received
or to be received by the Issuer or the Trustee in respect of Rent Payments,
including without limitation, all moneys and investments in the Bond Fund, (c)
the proceeds of all drawings on the Letters of Credit, (d) any proceeds of Bonds
originally deposited with the Trustee for the payment of interest accrued on the
Bonds or otherwise paid to the Trustee by or on behalf of the Company or the
Issuer for deposit in the Bond Fund or any excess moneys remaining in the
Project Fund following Final Project Completion Date, and (e) investment income
with respect to any moneys held by the Trustee under the Indenture.
"Security Documents" means, collectively, the Mortgages, the
Assignments of Rents and the Master Assignment.
<PAGE>
"Series" shall mean all of the Bonds authenticated and delivered on
original issuance and identified pursuant to the Indenture or the Supplemental
Indenture authorizing such Bonds as a separate Series of Bonds, and any Bonds
thereafter authenticated and delivered in lieu of or in substitution for such
Bonds pursuant to the Indenture, regardless of variations in maturity, interest
rate, principal installments or other provisions.
"Series A Bonds" means the Issuer's Adjustable Rate Tender Securities
(Carmike Cinemas, Inc.) 1997 Series A in the aggregate principal amount of
$59,775,000, to be issued by the Issuer pursuant to the Indenture, consisting of
Series A-1 Bonds in the aggregate principal amount of $35,125,000, Series A-2
Bonds in the aggregate principal amount of $12,325,000 and A-3 Bonds in the
aggregate principal amount of $12,325,000.
"Series B Bonds" means the Issuer's Adjustable Rate Tender Securities
(Carmike Cinemas, Inc.) 1997 Series B in the aggregate principal amount of
$12,975,000, to be issued by the Issuer pursuant to the Indenture, consisting of
Series B-1 Bonds in the aggregate principal amount of $7,625,000, Series B-2
Bonds in the aggregate principal amount of $2,675,000 and B-3 Bonds in the
aggregate principal amount of $2,675,000.
"Series Issue Date" means the date of original issuance and first
authentication and delivery of a series of Bonds to the initial purchaser
thereof against payment therefor.
"Special Adjustment Factor" means the amount determined by the Indexing
Agent that is not in excess of 0.25%.
"Special Record Date" means, with respect to any Bond, the date
established by the Trustee in connection with the payment of overdue interest on
that Bond pursuant to Section 2.08.
"Special Redemption" means a redemption of Bonds pursuant to any of
Sections 3.01(c) through and including 3.01(h).
"Special Redemption Account" means the account so designed and
established in the Bond Fund pursuant to Section 5.04.
"Supplemental Indenture" means any indenture supplemental to this
Indenture entered into between the Issuer and the Trustee in accordance with
Article IX.
"Supplemental Rent" shall have the meaning assigned to such term in
Section 3.8 of the Lease.
"Supplemental Rent Payments" means all payments of Supplemental Rent.
"Term Mode" means, with respect to the Bonds, the mode of accruing
interest thereon at the Term Rate.
"Term Rate" means the fixed rate of interest borne by the Bonds for the
Term Rate Period determined pursuant to Section 2.04.
"Term Rate Calculation Date" means a Business Day not more than 15 days
and not less than one day prior to the first day of the Term Rate Period.
"Term Rate Period" means the period from and after the Conversion Date
until the Bonds have been paid in full or are deemed paid pursuant to Article X.
<PAGE>
"Trustee" means First Union National Bank until a successor Trustee
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter, "Trustee" shall mean the successor Trustee. "Principal Office of
the Trustee" means the corporate trust office or other office of the Trustee at
the address of the Trustee set forth in Section 11.03, or any other corporate
trust office so designated in writing by the Trustee to the Issuer, the
Remarketing Agent, the Indexing Agent, the Company and the Agent. "Delivery
Office of the Trustee" means the office, in addition to its Principal Office, at
which Bondholder Tender Notices may be delivered and where Bonds surrendered for
purchase may be delivered to the Trustee, which office may be the office of an
agent of the Trustee for such purpose and shall be designated in Section 11.03
or in a separate writing by the Trustee to the Issuer, the Remarketing Agent,
the Indexing Agent, the Company and the Agent. For purposes of this Indenture,
the Trustee is also acting as tender agent for the Bonds in connection with any
tender or purchase of Bonds pursuant to Article IV.
"Trust Estate" shall have the meaning assigned to such term in the
foregoing habendum clause of this Indenture.
"Undelivered Bonds" means any Bonds subject to purchase pursuant to
Section 4.01 or 4.02 which the Holder thereof has failed to deliver as described
in such Sections.
"Weekly Mode" means, with respect to the Bonds, the mode of bearing
interest thereon at a Weekly Rate.
"Weekly Rate" means a floating weekly interest rate on the Bonds
established and adjusted in accordance with Section 2.03.
"Weekly Rate Calculation Date" means Monday in each calendar week or,
if any Monday is not a Business Day, the first Business Day preceding such
Monday.
"Weekly Rate Period" means the seven-day period commencing on the first
Monday following the corresponding Weekly Rate Calculation Date and running
through Sunday of the following calendar week; except that (i) the first Weekly
Rate Period shall commence on the Series Issue Date and end on and include the
first Sunday occurring after the Series Issue Date and (ii) the last Weekly Rate
Period prior to a conversion from the Weekly Mode to the Term Mode shall end on
and include the last day immediately preceding the Conversion Date.
SECTION 1.02. Interpretation; Time of Day
(a) Unless the context indicates otherwise, words importing
the singular number include the plural number, and vice versa. The terms
"hereof", "hereby", "herein", "hereto", "hereunder", "hereinafter" and similar
terms refer to this Indenture; and the term "hereafter" means after, and the
term "heretofore" means before, the Series Issue Date. Words of any gender
include the correlative words of the other genders, unless the context indicates
otherwise.
(b) In this Indenture, unless otherwise indicated, all
references to particular Articles, Sections or Subsections are references to the
Articles, Sections or Subsections of this Indenture.
(c) In this Indenture, all references to any time of the day
shall refer to Eastern standard time or Eastern daylight saving time, as in
effect in New York, New York on such day.
<PAGE>
Section 1.03. Captions, Headings and Table of Contents. The captions,
headings and table of contents in this Indenture are solely for convenience of
reference and in no way define, limit or describe the scope of any Articles,
Sections, Subsections, paragraphs, subparagraphs or clauses hereof.
(End of Article I)
<PAGE>
ARTICLE II
AUTHORIZATION AND TERMS OF BONDS
SECTION 2.01. Amount, Form and Issuance of Bonds
(a) The Bonds shall, except as provided in Section 2.05A, be
limited to $59,775,000 in aggregate principal amount of Series A Bonds and
$12,975,000 in aggregate principal amount of Series B Bonds, and shall contain
substantially the terms recited in the form of Bonds set forth in Exhibit A to
this Indenture. All Bonds shall provide that Debt Service in respect thereof
shall be payable only out of the Revenues. Pursuant to recommendations
promulgated by the Committee on Uniform Security Identification Procedures,
"CUSIP" numbers may be printed on the Bonds. The Bonds may bear such endorsement
or legend satisfactory to the Trustee as may be required to conform to usage or
law with respect thereto.
(b) Upon the execution and delivery hereof, the Issuer shall
execute the Bonds and deliver them to the Trustee for authentication. The
Trustee shall authenticate the Bonds and deliver them to, or on the order of,
the Issue upon receipt of a written request and authorization to the Trustee on
behalf of the Issuer; this Indenture shall constitute such order.
SECTION 2.02. Designation, Denominations, Maturity, Dated Dates,
Interest Accrual and Tender
(a) The Series A Bonds and the Series B Bonds shall be
designated "Adjustable Rate Tender Securities (Carmike Cinemas, Inc.) 1997
Series A" and "Adjustable Rate Tender Securities (Carmike Cinemas, Inc.) 1997
Series B", respectively, and shall be substantially in the form attached hereto
as Exhibit A.
(b) Prior to the Conversion Date, the Bonds shall be issuable
in denominations of $100,000 or any whole multiple thereof. From and after the
Conversion Date, the Bonds shall be issuable in denominations of $5,000 or any
whole multiple thereof.
(c) The Bonds shall mature, subject to prior redemption as
provided in the form thereof recited in this Indenture, on September 1, 2015.
(d) The Series Issue Date shall be set forth on the face side
of all Bonds authenticated by the Trustee. Each Bond shall bear the date of its
authentication.
(e) The Bonds shall bear interest from the Interest Payment
Date to which interest has been paid next preceding the date of authentication,
unless the date of authentication (i) is an Interest Payment Date to which
interest has been paid, in which event the Bonds shall bear interest from the
date of authentication, or (ii) is prior to the first Interest Payment Date for
the Bonds, in which event such Bonds shall bear interest from the Series Issue
Date. Interest on the Bonds shall be paid on each Interest Payment Date. Each
Bond shall bear interest on overdue principal at the rates borne by the Bonds
during the period such principal is overdue. So long as the Bonds bear interest
at a Weekly Rate, interest on the Bonds shall be computed on the basis of a year
of 360 days for the number of days actually elapsed. Interest accruing on the
Bonds at a Term Rate shall be computed on the basis of a 360-day year of twelve
30-day months.
<PAGE>
(f) Bonds authenticated and delivered while bearing interest
in the Weekly Mode shall set forth on the face side thereof, in the place
provided for designating the interest rate, the words "Weekly Rate".
(g) Bonds authenticated and delivered while bearing interest
in the Term Mode shall set forth on the face side thereof, in the place provided
for designating the interest rate, the words "__% Term Rate".
(h) All Bonds shall initially bear interest at a Weekly Rate
from the Series Issue Date determined in accordance with Section 2.03. The Bonds
may be converted from one Rate Mode to another Rate Mode as provided in Section
2.05.
(i) The Bonds shall be subject to optional and mandatory
tender for purchase as provided in Article IV.
SECTION 2.03. Weekly Rate
(a) A Weekly Rate shall be determined for each Weekly Rate
Period as described below. For each Weekly Rate Period and so long as the Bonds
are in the Weekly Mode, the interest rate on the Bonds shall be the current
market rate determined by the Indexing Agent on the immediately preceding Weekly
Rate Calculation Date, in accordance with this Section. On each Weekly Rate
Calculation Date, the Indexing Agent shall determine the Weekly Rate for the
next succeeding Weekly Rate Period. The Weekly Rate shall be a percentage per
annum equal to the Money Market Equivalent Yield, plus or minus the Special
Adjustment Factor, if any, determined by the Indexing Agent. The Special
Adjustment Factor will be the amount, if any, which when added to or subtracted
from the Money Market Equivalent Yield, would result in a Weekly Rate for the
applicable Weekly Rate Period, sufficient, in the opinion of the Indexing Agent,
to enable the Remarketing Agent to remarket the Bonds at 100% of the principal
amount thereof. In determining the Special Adjustment Factor on the Bonds, the
Indexing Agent is to have due regard for general financial and credit market
conditions and such other factors, including the credit rating and financial
condition of the Lenders and applicable tender provisions, which, in the
judgment of the Indexing Agent may have a bearing on the interest rate on the
Bonds. Notice of such Weekly Rate shall be given by the Indexing Agent to the
Trustee and the Remarketing Agent by the close of business on the Weekly Rate
Calculation Date. No notice of Weekly Rates will be given to the Issuer, the
Company, the Agent or the Holders; however, the Issuer, the Company, the Agent
and the Holders may obtain Weekly Rates from the Trustee or the Indexing Agent
upon request therefor.
(b) Anything herein to the contrary notwithstanding, in no
event shall the Weekly Rate borne by the Bonds exceed the Maximum Rate.
(c) At the direction of the Issuer (which direction shall be
given by the Issuer upon the request of the Agent), the Maximum Rate shall be
increased to a rate per annum specified by the Agent which does not exceed the
maximum non-usurious rate allowed by applicable law; provided that, if the Bonds
are then rated by a Rating Agency, the Trustee shall receive a written notice
from each Rating Agency then maintaining a rating on the Bonds stating that the
proposed increase of the Maximum Rate will not cause the rating then assigned to
the Bonds to be lowered or withdrawn as a result of any increase in the Maximum
Rate. The consent of the Bondholders shall not be required for any such increase
in the Maximum Rate. The Trustee shall not be responsible for determining such
Maximum Rate or obtaining such Rating Agency notices.
<PAGE>
(d) If for any reason the Indexing Agent does not determine a
Weekly Rate for any Weekly Rate Period as aforesaid, or if a court holds a rate
for any Weekly Rate Period to be invalid or unenforceable, the Weekly Rate for
that Weekly Rate Period shall be equal to the Weekly Rate in effect for the
immediately preceding Weekly Rate Period. The Weekly Rate for any consecutive
succeeding Weekly Rate Period for which the Indexing Agent does not determine a
Weekly Rate, or a court holds a rate to be invalid or unenforceable, shall be
the sum of (i) the daily unweighted average of the Federal Funds Rate, for each
Business Day of the preceding week plus (ii) .125%.
(e) The determination of the Weekly Rate by the Indexing Agent
pursuant to this Indenture shall be conclusive and binding upon the Issuer, the
Trustee, the Remarketing Agent, the Company, the Indexing Agent, the Agent and
the Holders of the Bonds.
Section 2.04. Term Rate. The Term Rate shall be determined as described
below. The Term Rate shall be determined by the Remarketing Agent, on the Term
Rate Calculation Date, as the lowest rate of interest that, in the judgment of
the Remarketing Agent, taking into account prevailing financial market
conditions, would be necessary to enable the Remarketing Agent to arrange for
the sale of the Bonds in the Term Mode in a secondary market sale at a price
equal to the principal amount thereof, without premium plus accrued interest, on
the first Business Day of the respective Term Rate Period; provided that (1) if
the Remarketing Agent fails for any reason to determine the Term Rate for any
Term Rate Period, such Term Rate shall be equal to 125% of the average annual
bond equivalent yield calculations at par as of the first day of the
corresponding Term Rate Period or, if such day is not a Business Day, the next
preceding Business Day, of United States Treasury obligations having a term to
maturity similar to such Term Rate Period, and (2) no Term Rate shall exceed the
lesser of (i) the maximum interest rate at which the Letters of Credit then in
effect provides coverage for at least Forty Three (43) days interest and (ii)
10% per annum. In determining a Term Rate pursuant to this Section, prevailing
financial market conditions which the Remarketing Agent shall take into account
shall include (i) existing long-term market rates and indexes of such long-term
rates, (ii) the existing market supply and demand for long-term securities,
(iii) existing yield curves for long-term securities for obligations of credit
quality comparable to the Bonds, (iv) general economic conditions, (v) industry,
economic and financial conditions that may affect or be relevant to the Bonds,
and (vi) such other facts, circumstances and conditions as the Remarketing
Agent, in its sole discretion, shall determine to be relevant. Notice of each
Term Rate shall promptly be given by telephone (promptly confirmed in writing)
by the Remarketing Agent to the Trustee, the Issuer, the Company and the Agent.
Determinations of Term Rates pursuant to this Section shall be conclusive and
binding upon the Issuer, the Company, the Trustee, the Agent and the Holders.
Section 2.05. Conversion at Option of Company. The Issuer shall have
the option (to be exercised at the direction of the Company) to convert the
interest rate on the Bonds from the Weekly Mode to the Term Mode as herein
provided on any Conversion Date the Company shall select, provided that the
Conversion Date shall be an Interest Payment Date. The Issuer shall exercise
such option by giving written notice from an Authorized Representative of the
Issuer to the Trustee, the Remarketing Agent, the Indexing Agent and the Agent,
stating its election to convert the Rate Mode of the Bonds to the Term Mode and
stating the Conversion Date therefor, not less than 45 days (or such shorter
period as shall be acceptable to the Trustee) prior to such Conversion Date.
Upon receipt of such notice by the Trustee, the Trustee may conclusively assume
that the Issuer, the Remarketing Agent, the Indexing Agent and the Agent also
received a copy of such notice and that such condition has been complied with.
<PAGE>
Notice of the exercise of the option to convert shall not be effective unless,
within 10 days (or such greater period as shall be acceptable to the Trustee) of
the delivery of such notice, there shall have been delivered to the Trustee (i)
an opinion of counsel to the Issuer addressed to the Trustee, the Issuer, the
Company, the Agent, the Indexing Agent and the Remarketing Agent to the effect
that such conversion is authorized or permitted by this Indenture, and (ii) if
(A) the Letters of Credit are to remain in effect from and after the Conversion
Date, or (B) any portion of the purchase price for the Bonds is to be paid from
drawings under the Letters of Credit, the written consent of the LC Issuers to
such conversion. The Trustee shall give notice by first class mail (postage
prepaid) to the Holders not less than 30 days prior to the proposed Conversion
Date (i) stating that the interest rate on the Bonds is scheduled to be
converted to the Term Rate, (ii) stating the proposed Conversion Date, (iii)
stating the method of computation of the Term Rate which will take effect on the
Conversion Date, (iv) stating that from and after the Conversion Date, the Bonds
will no longer be subject to purchase on demand of the Holder, (v) if the Bonds
will be secured by Letters of Credit after the Conversion Date, so stating and
stating the identity of the LC Issuers issuing such Letters of Credit or, if the
Bonds will not be secured by Letters of Credit after the Conversion Date, so
stating, (vi) if the Bonds will be subject to optional redemption after the
Conversion Date, stating the applicable provisions therefor, or, if the Bonds
will not be subject to optional redemption after the Conversion Date, so
stating, (vii) stating that the Company, on or before the tenth day prior to the
proposed Conversion Date, may determine not to convert the Bonds in which case
the Trustee shall notify the Holders in writing to such effect, (viii) stating
that all outstanding Bonds will be subject to a mandatory purchase on the
Conversion Date, or if such Conversion Date is not a Business Day, the first
Business Day following such Conversion Date at a price of par plus accrued
interest, if any, and (ix) stating that if the Remarketing Agent shall not have
received, at least one Business Day prior to the proposed Conversion Date, firm
orders for the purchase of all of the Bonds Outstanding to bear interest at the
Term Rate, the exercise of the Conversion Option shall be rescinded and the
Bonds shall continue to bear interest at the Weekly Rate and shall not be
subject to mandatory purchase on the proposed Conversion Date. Notwithstanding
any other provision contained herein or in the Bonds, if the Remarketing Agent
shall not have received, at least one Business Day prior to the proposed
Conversion Date, firm orders for the purchase of all of the Bonds Outstanding to
bear interest at the Term Rate, the exercise of the Conversion Option shall be
rescinded and the Bonds shall continue to bear interest at the Weekly Rate and
shall not be subject to mandatory purchase on the proposed Conversion Date.
Section 2.05A. Additional Bonds. After authentication and delivery of
the Bonds, and so long as no Event of Default shall have occurred and shall then
be continuing, one or more Series of Additional Bonds may be authenticated and
delivered upon original issuance at any time or from time to time for the
purpose of financing Costs of the Projects or providing additional funds to
complete payment of the Costs of the Projects. The proceeds, including accrued
interest, of the Additional Bonds of each Series shall be applied simultaneously
with the delivery of such Bonds as shall be provided in the Supplemental
Indenture authorizing such Series of Additional Bonds.
SECTION 2.05B. Refunding Bonds
(a) One or more Series of Refunding Bonds may be issued at any
time to refund Outstanding Bonds of one or more Series or one or more maturities
within a Series or any Bonds of one or more maturities within one or more
<PAGE>
Series. Refunding Bonds shall be issued in a principal amount sufficient,
together with other moneys available therefor, to accomplish such refunding and
to make the deposits in the funds and accounts under the Indenture required by
the provisions of the Supplemental Indenture authorizing such Bonds.
(b) Refunding Bonds of each Series shall be authenticated and
delivered by the Trustee only upon receipt by the Trustee of:
(1) Irrevocable written instructions to the Trustee,
satisfactory to it, to give due notice of redemption, if applicable, of
all of the Bonds to be refunded on a redemption date or dates specified
in such instructions, subject to the provisions of Section 10.02
hereof;
(2) If the Bonds to be refunded are not by their terms subject
to redemption or will not be redeemed within the next succeeding 60
days, irrevocable written instructions to the Trustee, satisfactory to
it, to mail the notice provided for in Section 10.02 to the Holders of
the Bonds being refunded; and
(3) Either (i) moneys in an amount sufficient to effect
payment at the applicable redemption price of the Bonds to be refunded,
together with accrued interest on such Bonds to the redemption date,
shall be held by the Trustee or any one or more of the paying agents in
a separate account irrevocably in trust for and assigned to the
respective Holders of the Bonds to be refunded, or (ii) Defeasance
Obligations in such principal amounts, of such maturities, bearing such
interest, and otherwise having such terms and qualifications and any
moneys, as shall be necessary to comply with the provisions of Article
X hereof, which Defeasance Obligations and moneys shall be held in
trust and used only as provided in said Article.
(4) Such further documents and moneys as are required by the
provisions of the Supplemental Indenture authorizing said Series of
Refunding Bonds.
(c) The proceeds, including accrued interest, of the Refunding
Bonds of each Series shall be applied simultaneously with the delivery of such
Bonds as shall be provided by the Supplemental Indenture authorizing such Series
of Refunding Bonds.
SECTION 2.06. Execution and Authentication of Bonds
(a) The Bonds shall be executed by the manual or facsimile
signature of an Authorized Representative and attested by the manual or
facsimile signature of an Authorized Representative of the Issuer. In case any
Authorized Representative whose signature or a facsimile of whose signature
shall appear on any Bond shall cease to be that Authorized Representative before
the authentication of the Bond, the signature of such Authorized Representative
or the facsimile thereof nevertheless shall be valid and sufficient for all
purposes, the same as if that Authorized Representative had remained in office
until that time. Any Bond may be executed on behalf of the Issuer by an
Authorized Representative who, on the date of execution is the proper Authorized
Representative, although on the date of authentication of the Bond that person
was not the proper Authorized Representative.
<PAGE>
(b) No Bond shall be valid or become obligatory for any
purpose or shall be entitled to any security or benefit under this Indenture
unless and until a certificate of authentication, substantially in the form set
forth in Exhibit A to this Indenture, has been signed by the Trustee. The
authentication by the Trustee upon any Bond shall be conclusive evidence that
the Bond so authenticated has been duly authenticated and delivered hereunder
and is entitled to the security and benefit of this Indenture. The certificate
of the Trustee may be executed by any person authorized by the Trustee, and it
shall not be necessary that the same authorized person sign the certificates of
authentication on all of the Bonds.
(c) The Bonds, initially shall be authenticated and delivered
pursuant to Section 2.01(b).
Section 2.07. Source of Payment of Bonds; Limited Obligations. The
Bonds Outstanding from time to time are limited and special obligations of the
Issuer, the principal of, and premium, if any, and interest on which are payable
solely from drawings under the Letters of Credit and otherwise as provided
herein, which amounts are hereby specifically pledged to the payment thereof in
the manner and to the extent herein specified, and the Bonds shall not be deemed
to constitute a general obligation or liability of the Issuer, its managers,
members or employees. The Bonds are limited obligations of the Issuer and do not
constitute a charge against the general credit of the Issuer.
SECTION 2.08. Payment and Ownership of Bonds
(a) Debt Service shall be payable in lawful money of the
United States of America without deduction for the services of the Trustee.
Subject to the provisions of Sections 2.08(b), 2.12 and 2.13, (i) the principal
of and any premium on any Bond shall be payable when due to a Holder upon
presentation and surrender of such Bond at the Principal Office of the Trustee,
and (ii) interest on any Bond shall be paid on each Interest Payment Date by
check or draft which the Trustee shall cause to be mailed on that date to the
Person in whose name the Bond is registered at the close of business on the
Regular Record Date applicable to that Interest Payment Date on the Register at
the address appearing therein. If and to the extent, however, that the Issuer
shall fail to make payment or provision for payment of interest on any Bond on
any Interest Payment Date, that interest shall cease to be payable to the Person
who was the Holder of that Bond as of the applicable Regular Record Date. When
moneys become available for payment of that interest, (x) the Trustee shall,
pursuant to Subsection 7.06(d), establish a Special Record Date for the payment
of that interest which shall be not more than 15 nor fewer than 10 days prior to
the date of the proposed payment, and (y) the Trustee shall cause notice of the
proposed payment and of the Special Record Date to be mailed by first class
mail, postage prepaid, to each Holder at its address as it appears on the
Register not fewer than 10 days prior to the Special Record Date and,
thereafter, that interest shall be payable to the Persons who are the Holders of
the Bonds at the close of business on the Special Record Date.
(b) The interest and the principal or redemption price and
purchase price becoming due with respect to the Bonds shall, at the written
request of the Holder of at least $1,000,000 aggregate principal amount of such
Bonds received by the Trustee at least two Business Days before the
corresponding Regular Record Date or maturity, redemption or purchase date, be
paid by wire transfer within the continental United States in immediately
available funds to the bank account number of such Holder specified in such
request and entered by the Trustee on the Register, but, in the case of
principal or redemption price and purchase price, only upon presentation and
surrender of such Bonds at the Principal Office of the Trustee.
<PAGE>
(c) Subject to the foregoing, each Bond delivered under this
Indenture upon transfer thereof, or in exchange for or in replacement of any
other Bond, shall carry the rights to interest accrued and unpaid, and to accrue
on that Bond, or which were carried by that Bond.
(d) Except as provided in this Section and in subsection
2.10(a), (i) the Holder of any Bond shall be deemed and regarded as the absolute
owner thereof for all purposes of this Indenture, (ii) payment of or on account
of the Debt Service on any Bond shall be made only to or upon the order of that
Holder or its duly authorized attorney in the manner permitted by this
Indenture, and (iii) neither the Issuer nor the Trustee shall, to the extent
permitted by law, be affected by notice to the contrary. All of those payments
shall be valid and effective to satisfy and discharge the liability upon that
Bond, including without limitation the interest thereon to the extent of the
amount or amounts so paid.
SECTION 2.09. Registration, Transfer and Exchange of Bonds
(a) All Bonds shall be issued in fully registered form. The
Bonds shall be registered upon original issuance and upon subsequent transfer or
exchange as provided in this Indenture. The Trustee shall act as registrar and
transfer agent for the Bonds. So long as any of the Bonds remain outstanding,
the Issuer will cause books for the registration and transfer of Bonds, as
provided in this Indenture, to be maintained and kept at the Principal Office of
the Trustee.
(b) Bonds may be exchanged, at the option of their Holder, for
Bonds of any authorized denomination or denominations in an aggregate principal
amount equal to the unmatured and unredeemed principal amount of, and bearing
interest at the same rate and maturing on the same date or dates as, the Bonds
being exchanged. The exchange shall be made upon presentation and surrender of
the Bonds being exchanged at the Principal Office of the Trustee, together with
an assignment duly executed by the Holder or its duly authorized attorney in
form and with guarantee of signature satisfactory to the Trustee.
(c) Any Bond may be transferred upon the Register, upon
presentation and surrender thereof at the Principal Office of the Trustee,
together with an assignment duly executed by the Holder or its duly authorized
attorney in form and with guarantee of signature satisfactory to the Trustee.
Upon transfer of any Bond, the Issuer shall execute in the name of the
transferee, and the Trustee shall authenticate and deliver, a new Bond or Bonds
of any authorized denomination or denominations in an aggregate principal amount
equal to the unmatured and unredeemed principal amount of, and bearing interest
at the same rate and maturing on the same date or dates as, the Bonds presented
and surrendered for transfer.
(d) In all cases in which Bonds shall be exchanged or
transferred hereunder, the Issuer shall execute, and the Trustee shall
authenticate and deliver, Bonds in accordance with the provisions of this
Indenture. The exchange or transfer shall be made without charge; provided that
the Issuer or the Trustee may make a charge for every exchange or transfer of
Bonds sufficient to reimburse them for any tax or excise required to be paid
with respect to the exchange or transfer. The charge shall be paid before a new
Bond is delivered.
(e) All Bonds issued upon any transfer or exchange of Bonds
shall be the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Bonds surrendered
upon transfer or exchange. After the Conversion Date, the Trustee shall not be
<PAGE>
required to exchange or transfer (i) any Bond during a period beginning at the
opening of business ten days before the date of the mailing of a notice of
redemption of Bonds and ending at the close of business on the day of such
mailing, (ii) any Bond selected for redemption, in whole or in part, or (iii)
any Bond during the period of 15 days preceding any Interest Payment Date.
(f) In case any Bond is redeemed in part only, on or after the
redemption date and upon presentation and surrender of the Bond, the Issuer,
subject to the provisions of Sections 2.12 and 2.13, shall cause execution of,
and the Trustee shall authenticate and deliver, a new Bond or Bonds in
authorized denominations in an aggregate principal amount equal to the unmatured
and unredeemed portion of, and bearing interest at the same rate and maturing on
the same date or dates as, the Bond redeemed in part.
SECTION 2.10. Mutilated, Lost, Wrongfully Taken or Destroyed Bonds
(a) If any Bond is mutilated, lost, wrongfully taken or
destroyed, in the absence of written notice to the Issuer or the Trustee that a
lost, wrongfully taken or destroyed Bond has been acquired by a purported bona
fide purchaser, the Issuer shall execute, and the Trustee shall authenticate and
deliver, a new Bond of like date, maturity and denomination and of the same
series as the Bond mutilated, lost, wrongfully taken or destroyed; provided that
(i) in the case of any mutilated Bond, the mutilated Bond first shall be
surrendered to the Trustee, and (ii) in the case of any lost, wrongfully taken
or destroyed Bond, there first shall be furnished to the Issuer, the Company and
the Trustee evidence of the loss, wrongful taking or destruction satisfactory to
the Trustee, together with indemnity satisfactory to it and to the Authorized
Representative of the Issuer. The Issuer and the Trustee may charge the Holder
of a mutilated, lost, wrongfully taken or destroyed Bond their reasonable fees
and expenses in connection with their actions pursuant to this Section.
(b) Notwithstanding the foregoing, the Trustee shall not be
required to authenticate and deliver any substitute Bond for a Bond which has
been called for redemption or which has matured or is about to mature and, in
any such case, the principal or redemption price and interest then due or
becoming due shall be paid by the Trustee from the funds provided by the Issuer
hereunder in accordance with the terms of the mutilated, lost, wrongfully taken
or destroyed Bond without substitution therefor.
(c) Every substituted Bond issued pursuant to this Section
shall constitute an additional contractual obligation of the Issuer and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Bonds duly issued hereunder unless the Bond alleged to have
been lost, wrongfully taken or destroyed shall be at any time enforceable by a
bona fide purchaser for value without notice. In the event the Bond alleged to
have been lost, wrongfully taken or destroyed shall be enforceable by anyone,
the Issuer may recover the substitute Bond from the Bondholder to whom it was
issued or from anyone taking under the Bondholder except a bona fide purchaser
for value without notice. Subject to the foregoing, all Bonds authenticated and
delivered under this Section 2.10 shall evidence the same debt as the last,
wrongfully taken or destroyed Bond.
(d) All Bonds shall be held and owned on the express condition
that the foregoing provisions of this Section are exclusive with respect to the
replacement or payment of mutilated, lost, wrongfully taken or destroyed Bonds
and, to the extent permitted by law, shall preclude any and all other rights and
remedies with respect to the replacement or payment of negotiable instruments or
other investment securities without their surrender, notwithstanding any law or
statute to the contrary now existing or hereafter enacted.
<PAGE>
SECTION 2.11. Cancellation of Bonds
(a) Any Bond surrendered pursuant to this Article for the
purpose of payment, redemption, retirement, exchange, replacement or transfer
shall be cancelled upon presentation and surrender thereof to the Trustee. Bonds
purchased pursuant to Section 4.01 or 4.02 shall not be surrendered Bonds and
shall be Outstanding Bonds, unless otherwise specifically provided in this
Indenture.
(b) The Company may deliver at any time to the Trustee for
cancellation any Bonds previously authenticated and delivered hereunder, which
the Company may have purchased pursuant to the provisions of this Indenture. All
Bonds so delivered shall be cancelled promptly by the Trustee. Certification of
the surrender and cancellation of any Bonds shall be made to the Issuer by the
Trustee. Cancelled Bonds shall be destroyed by the Trustee by shredding or
incineration after their cancellation. The Trustee shall provide certificates
describing the destruction of cancelled Bonds to the Issuer.
Section 2.12. Special Agreement with Holders. Notwithstanding any
provision of this Indenture or of any Bond to the contrary, the Trustee may
enter into an agreement with any Holder providing for making all payments to
that Holder of principal of and interest and any premium on that Bond or any
part thereof at a place and by a method (including wire transfer of federal
funds) other than as provided in this Indenture and in the Bond, without
presentation or surrender of the Bond, upon any conditions which shall be
satisfactory to the Trustee; provided that (i) except as otherwise provided in
Section 2.13, payment of principal shall be made only upon presentation and
surrender of the Bond and (ii) payment in any event shall be made to the Person
in whose name a Bond shall be registered on the Register, with respect to
payment of principal and premium, on the date such principal and premium is due,
and, with respect to the payment of interest, as of the applicable Regular
Record Date, Special Record Date or other date agreed upon, as the case may be.
The Trustee will furnish a copy of each such agreement, upon request, to the
Issuer, the Agent and the Company. Any payment of principal, premium or interest
pursuant to such an agreement shall constitute payment thereof pursuant to, and
for all purposes of, this Indenture.
SECTION 2.13. Book-Entry System for the Bonds
(a) Notwithstanding the foregoing provisions of this Article
II, any Series of Bonds which is issued as Book-Entry Bonds shall initially be
issued in the form of one fully-registered bond for the aggregate principal
amount of the Bonds of each maturity, which Book-Entry Bonds shall be registered
in the name of Cede & Co., as nominee of DTC. Except as provided in paragraph
(g) below, all Book-Entry Bonds shall be registered in the Register in the name
of Cede & Co., as nominee of DTC; provided that if DTC shall request that
Book-Entry Bonds be registered in the name of a different nominee, the Trustee
shall exchange all or any portion of the Book-Entry Bonds for an equal aggregate
principal amount of Book-Entry Bonds registered in the name of such nominee or
nominees of DTC. No person other than DTC or its nominee shall be entitled to
receive from the Issuer or the Trustee either a Book-Entry Bond or any other
evidence of ownership of the Book-Entry Bonds, or any right to receive any
payment in respect thereof, unless DTC or its nominee shall transfer record
ownership of all or any portion of the Book-Entry Bonds on the Register in
connection with discontinuing the book entry system as provided in paragraph (g)
below or otherwise.
<PAGE>
(b) So long as any Bonds are registered in the name of DTC or
any nominee thereof, all payments of the principal or redemption price of or
interest on such Bonds shall be made to DTC or its nominee in accordance with
the Representation Letter on the dates provided for such payments under this
Indenture. Each such payment to DTC or its nominee shall be valid and effective
to fully discharge all liability of the Issuer or the Trustee with respect to
the principal or redemption price of or interest on the Book-Entry Bonds to the
extent of the sum or sums so paid. In the event of the redemption of less than
all of the Book-Entry Bonds Outstanding of any maturity, the Trustee shall not
require surrender by DTC or its nominee of the Book-Entry Bonds so redeemed, but
DTC (or its nominee) may retain such Bonds and make an appropriate notation on
the Bond certificate as to the amount of such partial redemption; provided that
DTC shall deliver to the Trustee, upon request, a written confirmation of such
partial redemption and thereafter the records maintained by the Trustee shall be
conclusive as to the amount of the Bonds of such maturity which have been
redeemed.
(c) The Issuer and the Trustee may treat DTC (or its nominee)
as the sole and exclusive owner of the Book-Entry Bonds registered in its name
for the purposes of payment of the principal or redemption price of or interest
on the Book-Entry Bonds, selecting the Book-Entry Bonds or portions thereof to
be redeemed, giving any notice permitted or required to be given to Holders
under this Indenture, registering the transfer of Book-Entry Bonds, obtaining
any consent or other action to be taken by Holders and for all other purposes
whatsoever; and neither the Issuer nor the Trustee shall be affected by any
notice to the contrary. Neither the Issuer nor the Trustee shall have any
responsibility or obligation to any participant in DTC, any person claiming a
beneficial ownership interest in Book-Entry Bonds under or through DTC or any
such participant, or any other person which is not shown on the Register as
being a Holder, with respect to either: (1) the Book-Entry Bonds, (2) the
accuracy of any records maintained by DTC or any such participant, (3) the
payment by DTC or any such participant of any amount in respect of the principal
or redemption price of or interest on the Book-Entry Bonds, (4) any notice which
is permitted or required to be given to Holders under this Indenture, (5) the
selection by DTC or any such participant of any person to receive payment in the
event of a partial redemption of the Book-Entry Bonds, and (6) any consent given
or other action taken by DTC as Holder.
(d) So long as any Bonds are registered in the name of DTC or
any nominee thereof, all notices required or permitted to be given to the
Holders of such Bonds under this Indenture shall be given to DTC as provided in
the Representation Letter.
(e) In connection with any notice or other communication to be
provided to Holders pursuant to this Indenture by the Issuer or the Trustee with
respect to any consent or other action to be taken by Holders, DTC shall
consider the date of receipt of notice requesting such consent or other action
as the record date for such consent or other action, provided that the Issuer or
the Trustee may establish a special record date for such consent or other
action. The Issuer or the Trustee shall give DTC notice of such special record
date not less than 15 calendar days in advance of such special record date to
the extent possible.
(f) At or prior to settlement for the Book-Entry Bonds, the
Issuer and the Trustee shall execute or signify their approval of the
Representation Letter. Any successor Trustee shall, in its written acceptance of
its duties under this Indenture, agree to take any actions necessary from time
to time to comply with the requirements of the Representation Letter.
<PAGE>
(g) The book-entry system for registration of the ownership of
Book-Entry Bonds may be discontinued at any time if either (1) after notice to
the Issuer and the Trustee, DTC determines to resign as securities depository
for the Book-Entry Bonds, or (2) after notice to DTC and the Trustee, the Issuer
determines that continuation of the system of book-entry transfers through DTC
(or through a successor securities depository) is not in the best interests of
the Issuer. In either of such events (unless in the case described in clause (2)
above, the Issuer appoints a successor securities depository), the Book-Entry
Bonds shall be delivered in registered certificate form to such persons, and in
such maturities and principal amounts, as may be designated by DTC, but without
any liability on the part of the Issuer or the Trustee for the accuracy of such
designation. Whenever DTC requests the Issuer and the Trustee to do so, the
Issuer and the Trustee shall cooperate with DTC in taking appropriate action
after reasonable notice to arrange for another securities depository to maintain
custody of certificates evidencing Book-Entry Bonds.
(h) Anything herein to the contrary notwithstanding, so long
as any Bonds are registered in the name of DTC or any nominee thereof, in
connection with any optional tender of such Bonds bearing interest at a Weekly
Rate, the beneficial owners of such Bonds are responsible for submitting the
Bondholder Tender Notice to the Remarketing Agent only.
(i) Upon remarketing of Book-Entry Bonds in accordance with
Section 4.03 herein, payment of the purchase price thereof shall be made to DTC
and no surrender of certificates is expected to be required. Such sales shall be
made through DTC participants (which may include the Remarketing Agent) and the
new beneficial owners of such Book-Entry Bonds shall not receive delivery of
Bond certificates. DTC shall transmit payment to DTC participants, and DTC
participants shall transmit payment to beneficial owners whose Book-Entry Bonds
were purchased pursuant to a remarketing. Neither the Issuer, the Trustee nor
the Remarketing Agent is responsible for transfers of payment to DTC
participants or beneficial owners.
(j) The provisions of this Section 2.13 are subject to the
provisions of Article IV relating to Pledged Bonds.
(End of Article II)
<PAGE>
ARTICLE III
REDEMPTION OF BONDS
Section 3.01. Terms of Redemption. The Bonds are subject to redemption
prior to stated maturity as follows:
(a) Mandatory Sinking Fund Redemption. The Series A Bonds are
subject to mandatory sinking fund redemption prior to maturity at a redemption
price of 100% of the principal amount redeemed plus accrued interest to the
redemption date, on the Annual Payment Dates in the years and in the principal
amounts specified in Exhibit B to this Indenture. In the event that any Series A
Bonds are redeemed (other than through sinking fund redemption pursuant to this
Section) and are cancelled by the Trustee, the Trustee shall cause the Issuer to
receive a credit against its sinking fund redemption obligations in the
aggregate principal amount of Bonds so redeemed, such credits to be given in
such order of maturity as may be directed by the Issuer, at the direction of the
Company, with the consent of the Agent which consent shall not be unreasonably
withheld or delayed provided that the Company shall provide the Agent with
evidence reasonably satisfactory to the Agent that the Company has or will have
sufficient funds to meet the Company's payment obligations under the Lease as
they become due. Also, at its option, the Company may deliver to the Trustee for
cancellation Series A Bonds purchased by the Company pursuant to this Indenture.
Such Series A Bonds so purchased, delivered and cancelled shall be credited by
the Trustee at 100% of the principal amount thereof against the sinking fund
redemption obligations of the Issuer in such order of maturity as may be
directed by the Company with the consent of the Agent, which consent shall not
be unreasonably withheld or delayed provided that the Company shall provide the
Agent with evidence reasonably satisfactory to the Agent that the Company has or
will have sufficient funds to meet the Company's payment obligations under the
Lease as they become due, and the principal amount of Series A Bonds to be
redeemed by sinking fund redemption shall be accordingly reduced. Concurrently
with the events described above in this Subsection, the Trustee shall take such
action as may be necessary to cause the Company to receive corresponding credits
against its obligations to make Lease Payments. Anything herein to the contrary
notwithstanding, the Issuer and the Company shall not receive credits pursuant
to this Subsection for sinking fund redemption obligations in respect of which
the Trustee has given notice of redemption to Holders prior to the accrual of
such credits.
(b) Partial Redemption on Final Project Completion Date. The
Series A Bonds are subject to partial redemption after the Final Project
Completion Date in accordance with Section 3.9 of the Lease. Subject to the
provisions of subsection 5.04(c)(iv), the aggregate principal amount of Series A
Bonds to be so redeemed shall be equal to (i) the total amount of moneys
remaining in the Project Fund (including investment earnings thereon) after the
Final Project Completion Date which are transferred to the Excess Bond Proceeds
Account within the Bond Fund pursuant to Section 5.03, including (ii) moneys
remaining in the Capitalized Interest Account and the Capitalized Interest
Reserve Account (including investment earnings thereon) after the Final Project
Completion Date which are transferred to the Excess Bond Proceeds Account within
the Bond Fund pursuant to Sections 5.02A and 5.02B, respectively, and including
(iii) all investment earnings on amounts in the Bond Fund through and including
the Final Project Completion Date.
<PAGE>
(c) Partial Redemption from Uncompleted Project Purchase
Price. The Series A Bonds are subject to partial redemption after the Final
Project Completion Date in accordance with Subsection 4.2(a) of the Lease. The
aggregate principal amount of Series A Bonds to be so redeemed shall be equal to
the aggregate Uncompleted Project Purchase Price actually received by the Issuer
from the Company pursuant to Subsection 4.2(a) of the Lease.
(d) Partial Redemption Upon Purchase.
(i) The Series A Bonds are subject to partial
redemption after the Final Project Completion Date in the event the Company
elects to purchase one or more Individual Properties pursuant to Subsection
4.3(b) of the Lease. The aggregate principal amount of Series A Bonds to be so
redeemed shall be equal to the aggregate purchase prices actually received by
the Issuer from the Company for the Individual Property or Properties so
purchased in accordance with Subsection 4.3(b) of the Lease.
(ii) The Series A Bonds are subject to partial redemption
in the event the Company elects to purchase one or more Subperforming Theater
Properties pursuant to Section 15.4 of the Lease. The aggregate principal amount
of Series A Bonds to be so redeemed shall be equal to the aggregate purchase
prices received by the Issuer from the Company for the Subperforming Theater
Property or Properties so purchased in accordance with Section 15.4 of the
Lease.
(e) Extraordinary Optional Redemption. The Series A Bonds are
subject to redemption prior to maturity by the Issuer in the event of the
exercise by the Company of its option to direct that redemption upon occurrence
of any of the events described in Section 15.5 of the Lease, at any time in
whole or in part on any Interest Payment Date, in each case, at a redemption
price of 100% of the principal amount redeemed plus accrued interest to the
redemption date.
(f) Optional Redemption During Weekly Mode. Prior to the
Conversion Date, the Bonds may be redeemed by the Issuer, at the direction of
the Company (subject to Section 3.03) in whole at any time or in part on any
Interest Payment Date, prior to maturity at a redemption price equal to 100% of
the principal amount thereof plus accrued interest to the redemption date. In
the case of the optional redemption of Bonds in part, the Company may direct
that the Trustee only redeem Series A Bonds and not Series B Bonds to the extent
that the aggregate principal amount of the Series A Bonds Outstanding exceeds
the aggregate principal amount of Series B Bonds Outstanding, and thereafter all
optional redemptions shall be applied to the Series A Bonds and the Series B
Bonds in equal amounts.
(g) Optional Redemption After Conversion Date. From and after
the Conversion Date, the Bonds shall be subject to optional redemption prior to
maturity by the Issuer, at the direction of the Company, if, and to the extent
and at such redemption prices as are set forth in the notice to Bondholders of
the conversion of the Bonds.
(h) Optional Redemption on Special Right of Termination and
Purchase. The Bonds are subject to optional redemption prior to maturity, at a
redemption price equal to 100% of the principal amount thereof plus accrued
interest to the redemption date, in the event the Company exercises its option
to terminate the Lease pursuant to Section 15.7 of the Lease.
<PAGE>
(i) Use of Certain Funds to Redeem Bonds. The Trustee shall
draw on the Letters of Credit in the manner provided by Section 5.04 to pay the
principal of and interest on any Bonds called for mandatory sinking fund
redemption pursuant to Section 3.01(a). In the case of redemption pursuant to
Section 3.01(b), the Trustee shall pay the redemption price from the Excess Bond
Proceeds Account. In the case of any Special Redemption, the Trustee shall pay
the redemption price on all Bonds to be redeemed from funds constituting
Available Monies held by the Trustee for such purposes in the Special Redemption
Account within the Bond Fund.
Section 3.02. Partial Redemption. If fewer than all of the Bonds of a
Series are to be redeemed, the selection of Bonds to be redeemed, or portions
thereof in amounts of $100,000 ($5,000 after the Conversion Date) or any whole
multiple thereof, shall be made by lot or by such other method as the Trustee
deems fair and appropriate; provided that any Pledged Bonds shall be redeemed
first and any Company Bonds shall be redeemed second. In the case of a partial
redemption of Bonds when Bonds of denominations greater than $100,000 ($5,000
after the Conversion Date) are then outstanding, each $100,000 ($5,000 after the
Conversion Date) unit of face value of principal thereof shall be treated as
though it were a separate Bond of the denomination of $100,000 ($5,000 after the
Conversion Date). If it is determined that one or more, but not all, of the
$100,000 ($5,000 after the Conversion Date) units of face value represented by a
Bond are to be called for redemption, then upon notice of redemption of a
$100,000 ($5,000 after the Conversion Date) unit or units, the Holder of that
Bond shall, subject to Section 2.12, surrender the Bond to the Trustee (a) for
payment of the redemption price of the $100,000 ($5,000 after the Conversion
Date) unit or units of face value called for redemption (including without
limitation the interest accrued to the date fixed for redemption and any
premium) and (b) for issuance, without charge to the Holder thereof, of a new
Bond or Bonds of any authorized denomination or denominations in an aggregate
principal amount equal to the unmatured and unredeemed portion of, and bearing
interest at the same rate and maturing on the same date as, the Bond
surrendered.
Section 3.03. Issuer's Election to Redeem. Except in the case of
redemption pursuant to any mandatory redemption provisions of this Indenture,
Bonds shall be redeemed only by written notice from the Company on behalf of the
Issuer to the Trustee and the Agent. Such notice shall specify the redemption
date and the principal amount of Bonds to be redeemed, and shall be given at
least 45 days prior to the redemption date or such shorter period as shall be
acceptable to the Trustee.
SECTION 3.04. Notice of Redemption
(a) When required to redeem Bonds under any provision of this
Indenture, or when directed to do so by the Issuer or the Company pursuant to
the provisions of this Indenture or any Supplemental Indenture authorizing the
issuance of Additional Bonds or Refunding Bonds, the Trustee shall cause notice
of the redemption to be given not more than 60 days and not less than 15 days
(30 days if the Bonds are on the Term Mode) prior to the redemption date by
mailing copies of such notice of redemption by first class mail, postage
prepaid, to all Holders of Bonds to be redeemed at their registered addresses,
but failure to mail any such notice or defect in the mailing thereof in respect
of any Bond shall not affect the validity of the redemption of any other Bond
with respect to which notice was properly given. Each such notice shall be dated
and shall be given in the name of the Issuer and shall state the following
information:
<PAGE>
(i) the identification numbers, as established under
this Indenture, and the CUSIP numbers, if any, of the Bonds being redeemed,
provided that any such notice shall state that no representation is made as to
the correctness of CUSIP numbers either as printed on such Bonds or as contained
in the notice of redemption and that reliance may be placed only on the
identification numbers contained in the notice or printed on such Bonds;
(ii) any other descriptive information needed to
identify accurately the Bonds being redeemed;
(iii) in the case of partial redemption of any Bonds,
the respective principal amounts thereof to be redeemed;
(iv) the redemption date;
(v) the redemption price;
(vi) that on the redemption date the redemption price
will become due and payable upon each such Bond or portion thereof called for
redemption, and that interest thereon shall cease to accrue from and after said
date; and
(vii) the place where such Bonds are to be
surrendered for payment of the redemption price, which place of payment shall be
the Principal Office of the Trustee.
In addition, the Trustee shall at all reasonable times make available to any
party to any Transaction Document complete information as to Bonds which have
been redeemed or called for redemption.
(b) In addition to the foregoing notice, further notice of any
redemption of Bonds hereunder shall be given by the Trustee, at least two
Business Days in advance of the mailed notice to Holders, by registered or
certified mail or overnight delivery service to (i) the Rating Agencies or its
successors, if any, and to (ii) Financial Information, Inc.'s "Daily Called Bond
Service", 30 Montgomery Street, 10th Floor, Jersey City, New Jersey 07302,
Attention: Editor; Kenny Information Services' "Called Bond Service", 55 Bond
Street, 28th Floor, New York, New York 10004; and Standard and Poor's "Called
Bond Record", 26 Broadway, 3rd Floor, New York, New York 10004; or, in
accordance with then-current guidelines of the Securities and Exchange
Commission, to such other addresses and/or such other services, as the Issuer
may designate with respect to the Bonds, or no such services, as the Issuer may
designate in a certificate of the Issuer delivered to the Trustee. So long as
the Bonds or any portion thereof are held by DTC, the Trustee shall send each
notice of redemption of the Bonds to DTC at 711 Stewart Avenue, Garden City, New
York, 11530, Attention: Call Notification Department (FAX - (516) 227-4039)) or
at such other address as may be provided in writing to the Trustee from time to
time. The foregoing notice of redemption shall be sent to DTC at least 30 days
prior to the redemption date by legible facsimile transmission, certified or
registered mail, overnight delivery service or another secure method which
enables the Trustee subsequently to verify the transmission of such notice. Such
further notice shall contain the information required in Subsection 3.04(a).
Failure to give all or any portion of such further notice shall not in any
manner defeat the effectiveness of a call for redemption if notice thereof is
given to the Holders as prescribed in Subsection 3.04(a).
<PAGE>
(c) If at the time of mailing of notice of any extraordinary
optional redemption there shall not have been deposited moneys in the Bond Fund
available for payment pursuant to Subsection 5.04(c) sufficient to redeem all
the Bonds called for redemption, such notice shall state that it is conditional
in that it is subject to the deposit of the redemption moneys in the Bond Fund
available for payment pursuant to Section 5.04 not later than 12:00 noon on the
redemption date, in which case such notice shall be of no effect unless moneys
are so deposited.
SECTION 3.05. Payment of Redeemed Bonds
(a) If (i) unconditional notice of the redemption has been
duly given or duly waived by the Holders of all Bonds called for redemption or
(ii) conditional notice of redemption has been so given or waived and Available
Moneys for such redemption have been duly deposited with the Trustee, then in
either such case the Bonds called for redemption shall be payable on the
redemption date at the applicable redemption price. Payment of the redemption
price together with accrued interest shall be made by the Trustee, out of
Revenues or other funds deposited for such purpose, to or upon the order of the
Holders of the Bonds called for redemption upon surrender of such Bonds, except
as otherwise provided in Section 2.13.
(b) Upon the payment of the redemption price of Bonds being
redeemed, each check or other transfer of funds issued for such purpose shall
bear the CUSIP number identifying, by issue and maturity, the Bonds being
redeemed with the proceeds of such check or other transfer.
(c) All moneys deposited in the Bond Fund and held by the
Trustee for the redemption of particular Bonds shall be held in trust for the
account of the Holders thereof and shall be paid to them, respectively, upon
presentation and surrender of those Bonds, except as otherwise provided in
Section 2.13.
(End of Article III)
<PAGE>
ARTICLE IV
PURCHASE AND REMARKETING OF BONDS;
CONVERSION TO FIXED RATE
SECTION 4.01. Purchase on Demand of Holder During Weekly Mode
(a) While the Bonds are in the Weekly Mode, any Bond (or
portion thereof in an authorized denomination) other than a Pledged Bond or a
Company Bond shall be purchased on the demand of the Holder thereof on any
Business Day designated by such Holder in a Bondholder Tender Notice at a
purchase price equal to 100% of the principal amount thereof plus accrued
interest, if any, to the Purchase Date, if there is delivered to the Trustee at
its Principal Office or Delivery Office, and to the Remarketing Agent at its
Principal Office, a Bondholder Tender Notice which (i) states the principal
amount (or portion thereof) of such Bond and (ii) states the Purchase Date on
which such Bond (or portion thereof) shall be purchased pursuant to this
Section, which date shall be a Business Day not prior to the seventh day next
succeeding the date of the delivery of such notice to the Trustee, the Indexing
Agent and the Remarketing Agent. By delivering the Bondholder Tender Notice, the
Holder irrevocably agrees to deliver such Bond, if not held in book-entry form,
duly endorsed for transfer in blank and with guarantee of signature satisfactory
to the Trustee, to the Principal Office or the Delivery Office of the Trustee or
any other address designated by the Trustee at or prior to 12:00 noon on the
Purchase Date specified in the Bondholder Tender Notice. The determination by
the Trustee of a Holder's compliance with the Bondholder Tender Notice and Bond
delivery requirements of this Section is in the sole discretion of the Trustee
and binding on the Company, the Issuer, the Remarketing Agent, the Indexing
Agent, the Agent and the Holder of the Bonds. Any Bondholder Tender Notice which
the Trustee determines is not in compliance with this Section shall be of no
force or effect.
(b) So long as the Bonds are registered to, and held in
book-entry form by, DTC or its nominee, the beneficial owner of the Bonds is
responsible for submitting the Bondholder Tender Notice and shall be treated as
the Holder of such Bonds for such purpose, and such notice need only be
submitted to the Remarketing Agent.
(c) Any election by a Holder to tender a Bond (or portion
thereof) for purchase on a Business Day in accordance with this Section shall be
irrevocable and shall be binding on the Holder making such election and on any
transferee of such Holder. Each Bondholder Tender Notice shall automatically
constitute (i) an irrevocable offer to sell the Bond (or portion thereof) to
which such notice relates on the Purchase Date at a price equal to the purchase
price of such Bond (or portion thereof), (ii) an irrevocable authorization and
instruction to the Trustee to effect transfer of such Bond (or portion thereof)
upon payment of the purchase price to the Trustee on the Purchase Date, (iii)
with respect to a tender of a portion of a Bond, an irrevocable authorization
and instruction to the Trustee to effect the exchange of such Bond in part for
other Bonds in a principal amount equal to the retained portion so as to
facilitate the sale of the tendered portion of such Bond, and (iv) an
acknowledgment that such Holder will have no further rights with respect to such
Bond (or portion thereof) upon payment of the purchase price thereof to the
Trustee on the Purchase Date, except for the right of such Holder to receive
such purchase price upon surrender of such Bond, if not held in book-entry form,
to the Trustee endorsed for transfer in blank and with guarantee of signature
<PAGE>
satisfactory to the Trustee and that after the Purchase Date such Holder will
hold such Bond as agent for the Trustee. If the Bonds are not held in book-entry
form and, after delivery to the Trustee, the Indexing Agent and the Remarketing
Agent of a Bondholder Tender Notice in accordance with this Section, the Holder
making such election shall fail to deliver such Bond or Bonds described in the
Bondholder Tender Notice to the Trustee at its Principal Office or Delivery
Office on or before 12:00 noon on the applicable Purchase Date as required by
this Section, then the undelivered Bond or portion thereof described in such
Bondholder Tender Notice shall be deemed to have been tendered for purchase to
the Trustee and, to the extent that there shall be held by the Trustee on or
before the applicable Purchase Date an amount sufficient to pay the purchase
price thereof and available for such purpose pursuant to the terms of this
Section, such Undelivered Bond shall on such Purchase Date cease to bear
interest and no longer shall be considered to be Outstanding. Moneys held by the
Trustee for the purchase of the Undelivered Bonds in accordance with the
provisions of this Section shall be held in a special separate trust account for
the Holders of such Undelivered Bonds. Such moneys shall be held by the Trustee
uninvested and without liability for interest pending delivery of such
Undelivered Bonds to the Trustee.
(d) The Trustee shall, as to any Undelivered Bond, promptly
place a stop transfer against an appropriate amount of Bonds registered in the
name of the Holder thereof on the Register. The Trustee shall place such stop
transfer commencing with the lowest serial number Bond registered in the name of
such Holder (until stop transfers have been placed against an appropriate amount
of Bonds) until the appropriate tendered Bonds are delivered to the Trustee.
Upon such delivery, the Trustee shall make any necessary adjustments to the
Register.
(e) If the Bonds are not held in book-entry form and if for
any reason a Holder fails to deliver a tendered Bond to the Trustee on the
Purchase Date, the Issuer shall execute and the Trustee shall authenticate and
deliver in accordance with Section 4.03 a new Bond or Bonds in replacement of
the Undelivered Bond. The replacement of any such Undelivered Bond shall not be
deemed to create new indebtedness, but such Bond as is issued in replacement
shall be deemed to evidence the indebtedness previously evidenced by the
Undelivered Bond.
(f) A Holder who gives a Bondholder Tender Notice may
repurchase the Bonds so tendered on the Purchase Date if the Remarketing Agent
agrees to remarket such Bond to such Holder, and if the Remarketing Agent agrees
to remarket the specified Bond to such Holder prior to delivery of such Bonds as
set forth above, the delivery requirement set forth above shall be waived.
(g) Upon surrender of any Bond (which is not held in
book-entry form) for purchase in part only, the Issuer shall execute and the
Trustee shall authenticate and deliver to the Holder thereof a new Bond or Bonds
of the same maturity, of authorized denominations, in an aggregate principal
amount equal to the unpurchased portion of the Bond surrendered.
(h) On the date set for purchase of Bonds to be purchased
pursuant to this Section and upon receipt by the Trustee of 100% of the
aggregate purchase price of such Bonds, the Trustee shall pay the purchase price
of such Bonds to the selling Holders thereof at its Principal Office or Delivery
Office at or before 5:00 p.m.; provided that such Bonds (if not held in
book-entry form) shall have been surrendered to the Trustee properly endorsed
<PAGE>
for transfer on such date with all signatures guaranteed at or prior to 12:00
noon on such Purchase Date. Such payment shall be made in immediately available
funds and shall be made only with the following funds in the following order of
availability:
(i) moneys held in the Remarketing Proceeds Purchase
Account representing proceeds from the remarketing of such Bonds by the
Remarketing Agent to any Person other than the Issuer, the Company, any
guarantor of the Company's obligations under the Lease, if any, or any
Affiliate;
(ii) moneys constituting Available Moneys held in the Bond
Fund and available to make such payment pursuant to Section 10.02; and
(iii) proceeds from a drawing on the Letters of Credit
deposited directly into the Letter of Credit Purchase Account (provided that
such proceeds shall not be applied to purchase Pledged Bonds or Bonds which are
known by the Trustee to be Company Bonds).
(i) No purchase of Bonds pursuant to this Section shall be
deemed to be a payment or a redemption of such Bonds or any portion thereof and
such purchase will not operate to extinguish or discharge the indebtedness of
such Bonds.
SECTION 4.02. Mandatory Purchase on Conversion Date, upon Expiration of
Letter of Credit, and at Direction of Agent
(a) The Bonds shall be subject to mandatory purchase, at a
purchase price equal to the principal amount thereof plus, in the case of
purchases on a Purchase Date which is not an Interest Payment Date, accrued
interest thereon, as follows:
(i) on the Conversion Date, or if the Conversion Date is
not a Business Day, the first Business Day succeeding the Conversion Date;
(ii) on the Interest Payment Date next preceding the
Expiration Date of the Letters of Credit or, if earlier, the 30th day next
preceding such Expiration Date, unless the Trustee has received notice from the
Agent that the Letters of Credit have been or will be extended or an Alternate
Letter of Credit will be provided pursuant to Section 5.08;
(iii) On the Expiration Date of the Letters of Credit
unless the Trustee has received by 11:00 a.m. on such Expiration Date a written
extension of the Letters of Credit or an Alternate Letter of Credit; and
(iv) on the Purchase Date stipulated by the Agent pursuant
to Section 7.03 in the event the Agent directs the Trustee pursuant to Section
7.03 to call the Bonds for mandatory purchase pursuant to this clause.
(b) In the case of any mandatory purchase of the Bonds
pursuant to clause (a)(ii) or (a)(iii) above, the Trustee shall cause notice of
such mandatory purchase to be given not more than 45 and not less than 15 days
prior to the Purchase Date, by mailing copies of such notice of mandatory
purchase by first class mail, postage prepaid, to all Holders of Bonds to be
purchased at their registered addresses, but failure to mail any such notice or
defect in the mailing thereof in respect of any Bond shall not affect the
validity of the mandatory purchase of any other Bond with respect to which
notice was properly given. Each such notice shall be dated and shall be given in
<PAGE>
the name of the Issuer and shall state the following information: (i) the
identification numbers, as established under this Indenture, and the CUSIP
numbers, if any, of the Bonds being purchased; (ii) any other descriptive
information needed to identify accurately the Bonds being purchased; (iii) the
Purchase Date; (iv) the purchase price; (v) that on the Purchase Date the
purchase price will become due and payable upon each Bond; (vi) the place where
the Bonds are to be delivered for payment of the purchase price, which place of
payment shall be the Principal Office or Delivery Office of the Trustee; and
(vii) the Holders of Bonds subject to mandatory purchase shall be required to
deliver their Bonds for purchase to the Trustee at its Principal Office or
Delivery Office prior to 12:00 noon on the corresponding Purchase Date, and any
Bond not so delivered prior to 12:00 noon on the applicable Purchase Date shall
be deemed to have been tendered to the Trustee as of such Purchase Date and,
from and after such Purchase Date, shall cease to bear interest and no longer
shall be considered to be outstanding. In the event of a failure by a Holder to
deliver such Holder's Bond on or before the applicable Purchase Date, such
Holder shall not be entitled to any payment (including any interest to accrue
subsequent to such Purchase Date) other than the purchase price for such
Undelivered Bond, such Undelivered Bond shall no longer be entitled to the
benefits of this Indenture, except for the purpose of payment of the purchase
price therefor, and such Holder shall thereafter hold such Undelivered Bond as
agent for the Trustee. If for any reason a Holder fails to deliver to the
Trustee on or before the applicable Purchase Date any Bond remarketed by the
Remarketing Agent pursuant to Section 4.03, the Issuer shall execute and the
Trustee shall authenticate and deliver to the Remarketing Agent for redelivery
to the purchaser a new Bond or Bonds in replacement of the Undelivered Bond. The
replacement of any such Undelivered Bond shall not be deemed to create new
indebtedness, but such Bond as is issued in replacement shall be deemed to
evidence the indebtedness previously evidenced by the Undelivered Bond.
(c) On the date set for purchase of Bonds to be purchased
pursuant to this Section 4.02 and upon receipt by the Trustee of 100% of the
aggregate purchase price of such Bonds, the Trustee shall pay the purchase price
of such Bonds to the Holders thereof at its Principal Office or Delivery Office
at or before 5:00 p.m.; provided that such Bonds shall have been surrendered to
the Trustee properly endorsed for transfer on such date with all signatures
guaranteed at or prior to 12:00 noon on such date. Such payment shall be made in
immediately available funds and payment for Bonds purchased pursuant to this
Section shall be made only with the following funds in the following order of
availability:
(i) moneys held in the Remarketing Proceeds Purchase
Account representing proceeds from the remarketing of such Bonds by the
Remarketing Agent to any Person other than the Issuer, the Company or any
Affiliate;
(ii) moneys constituting Available Moneys held in the Bond
Fund and available to make such payment pursuant to Section 10.02; and
(iii) proceeds from a drawing on the Letters of Credit
deposited directly into the Letter of Credit Purchase Account (provided that
such proceeds shall not be applied to purchase Pledged Bonds or Bonds which are
known by the Trustee to be Company Bonds).
(d) No purchase of Bonds pursuant to this Section shall be
deemed to be a payment or a redemption of such Bonds or any portion thereof and
such purchase will not operate to extinguish or discharge the indebtedness of
such Bonds.
<PAGE>
SECTION 4.03. Remarketing
(a) Upon receipt of a Bondholder Tender Notice to the Trustee
and the Remarketing Agent (or to the Remarketing Agent only in the case of Bonds
held in book-entry form) pursuant to Section 4.01 and not later than the fifth
day preceding the Purchase Date for each mandatory purchase pursuant to Section
4.02, the Remarketing Agent shall use its best efforts to find purchasers for
and arrange for the sale of the Bonds identified in the Bondholder Tender Notice
pursuant to Section 4.01 or all Bonds subject to mandatory purchase pursuant to
Section 4.02 (other than any Bonds purchased in anticipation of the expiration
of the Letters of Credit or at the direction of the Agent), at a price equal to
the principal amount thereof plus, in the case of purchases on a Purchase Date
which is not an Interest Payment Date, accrued interest thereon, for settlement
in immediately available funds at or before 3:00 p.m. on the applicable Purchase
Date. Except as otherwise expressly provided herein, the Remarketing Agent may
not remarket to the Issuer, the Company or any Affiliate any Bonds to be
purchased pursuant to Section 4.01 or 4.02. In its capacity as a registered
broker-dealer, the Remarketing Agent may, but is not obligated to, acquire for
its own account any Bonds to be so purchased, but not otherwise remarketed, in
which case the Remarketing Agent shall have remarketed such Bonds to itself. The
Remarketing Agent may, but shall not be required to, purchase and sell Bonds for
its own account at any time.
(b) At or before 3:00 p.m. on the Business Day preceding the
Purchase Date of Bonds to be purchased pursuant to Section 4.01 or 4.02 and
remarketed pursuant to this Section (or such other time as to which the Trustee
and the Remarketing Agent may agree), the Remarketing Agent shall give notice by
telegram, telex, telecopy or other similar communication to the Trustee and the
Agent of the names, addresses and taxpayer identification numbers of the
purchasers and the denominations of Bonds to be delivered to each purchaser and,
if available, the payment instructions for regularly scheduled interest
payments.
(c) The Remarketing Agent shall, at or before 10:00 a.m. on
the Purchase Date of Bonds to be purchased pursuant to Section 4.01 or 4.02 and
remarketed pursuant to this Section, give telephonic notice, promptly confirmed
in writing, to the Trustee, the Company and the Agent specifying the principal
amount of Bonds remarketed and not remarketed, respectively, and the amount
representing the purchase price of Bonds which the Remarketing Agent does not
then hold in trust.
(d) The Remarketing Agent shall cause to be paid to the
Trustee in immediately available funds by 3:00 p.m. on the Purchase Date of
Bonds to be purchased pursuant to Section 4.01 or 4.02 and remarketed pursuant
to this Section, all amounts (if any) then held by the Remarketing Agent
representing proceeds of the remarketing of such Bonds, which shall be applied
by the Trustee on the applicable Purchase Date to pay the Purchase Price of
Bonds to be purchased on such Purchase Date. Pending such application, all such
remarketing proceeds received by the Trustee shall be deposited by the Trustee
in the special trust account designated as the Remarketing Proceeds Purchase
Account which the Trustee shall establish and use as provided in this Article IV
and shall not be commingled with other funds held by the Trustee. All moneys in
the Remarketing Proceeds Purchase Account shall be held in trust for the benefit
of the Holder of the Bonds to be purchased, uninvested and without liability for
interest thereon, pending application of such moneys by the Trustee as provided
above.
<PAGE>
(e) On the Purchase Date of Bonds to be purchased pursuant to
Sections 4.01 or 4.02, the Trustee shall register (or hold) all Bonds
purchased on such date as follows:
(i) Bonds remarketed by the Remarketing Agent shall be
registered and made available (at the Principal Office or Delivery Office of the
Trustee) to the Remarketing Agent or the purchasers thereof in accordance with
the instructions of the Remarketing Agent delivered to the Trustee pursuant to
this Section 4.03; and
(ii) Bonds purchased with proceeds of a drawing on the
Letters of Credit which are Pledged Bonds shall be held as Pledged Bonds in
accordance with Section 4.05.
(f) Any Bond (or portion thereof) with respect to which the
Trustee receives a Bondholder Tender Notice pursuant to Section 4.01 on or after
the date notice of a mandatory purchase pursuant to Section 4.02 or redemption
pursuant to Section 3.04 is given and before the corresponding mandatory
Purchase Date or redemption date, respectively, shall not be remarketed except
to a buyer who receives and acknowledges the binding effect of such notice. In
addition, Bonds which are deemed paid pursuant to Article X shall not be
remarketed but shall be canceled upon being purchased pursuant to Section 4.01
or 4.02 in accordance with the Bond cancellation provisions of Section 2.11.
(g) Except in connection with the conversion of the Bonds to
the Term Mode, the Remarketing Agent shall have no obligation to remarket any
Bonds which are not supported by the Letters of Credit or an Alternate Letter of
Credit as contemplated by this Indenture.
Section 4.04. Drawings on Letter of Credit for Purchase of Bonds. As
provided by Section 4.03, the Remarketing Agent shall advise the Trustee of the
amounts not held by the Remarketing Agent which shall be drawn under the Letters
of Credit in order for the Trustee to make timely payments of the purchase price
of Bonds from remarketing proceeds or moneys drawn under the Letters of Credit.
In the absence of such notice, the Trustee shall be deemed to have received
notice from the Remarketing Agent specifying that no portion of the purchase
price of such Bonds is held by the Remarketing Agent, in which case the Trustee
shall draw the entire amount thereof under the Letters of Credit. Prior to 11:00
a.m. on each Purchase Date, the Trustee shall take all action necessary to draw
on the Letters of Credit in accordance with their terms, the amounts specified
(or deemed specified) for receipt by the Trustee on such Purchase Date. The
Trustee shall establish a special trust account designated as the Letter of
Credit Purchase Account into which the Trustee shall deposit and hold in trust,
uninvested and without liability for interest thereon, all such amounts (and
only such amounts) received by the Trustee from drawings on the Letters of
Credit for purchases of Bonds pending application of such amounts by the Trustee
pursuant to this Article IV. Any remaining amounts in the Letters of Credit
Purchase Account after any application required by this Article IV shall be paid
over by the Trustee to the Agent (for further disbursement by the Agent to the
LC Issuers) as reimbursement for the drawing on the Letters of Credit from which
such amounts were derived; provided that the Letter of Credit shall be
reinstated to the extent of such reimbursement and the Trustee shall take all
necessary action on its part pursuant to the Letters of Credit to effect such
reinstatement. Anything herein to the contrary notwithstanding, no amounts drawn
on the Letters of Credit shall be applied to the purchase of Pledged Bonds or
Company Bonds.
<PAGE>
SECTION 4.05. Bonds Purchased with Proceeds of Letters of Credit
(a) Pledged Bonds.
(i) Bonds purchased with proceeds of a drawing on the
Letters of Credit pursuant to this Article shall constitute "Pledged Bonds" and
shall be held by the Trustee as agent for the Agent as pledgee of the Company
pursuant to the Fund Account Security Agreement (and shall be shown as such on
the Register and, if held in book-entry form, in the ownership records
maintained by DTC and any applicable DTC participant) unless and until (1) the
Trustee has confirmation from the Agent to the extent contemplated by the terms
of the Letters of Credit that the Letters of Credit have been reinstated with
respect to such drawing and (2) the Agent has notified the Trustee by telephone
(thereafter promptly confirmed in writing) that such Bonds have been released
from the pledge pursuant to the Reimbursement Agreement and are no longer
Pledged Bonds. Pending reinstatement of the Letters of Credit and release of
such pledge as aforesaid, the Agent shall be entitled to receive all payments of
principal of and interest on Pledged Bonds as pledgee of the Company and such
Bonds shall not be transferable or deliverable to any party (including the
Company) except the Agent pursuant to the Reimbursement Agreement.
(ii) Notwithstanding anything to the contrary contained
herein or in the Bonds, (A) Pledged Bonds shall bear interest at the same rate
per annum, and shall be payable in the same manner, as amounts due and payable
under the Reimbursement Notes corresponding to such Pledged Bonds, and the Agent
shall provide copies of all interest bills on the Reimbursement Notes to the
Trustee, upon which the Trustee shall be entitled to rely, and (B) interest
which is actually paid pursuant to the Reimbursement Notes corresponding to such
Pledged Bonds shall be credited against the interest which is due and payable by
the Issuer with respect to such Pledged Bonds, and the Issuer shall be deemed to
have paid the interest on such Pledged Bonds to the extent that interest
actually is paid pursuant to the Reimbursement Notes corresponding to such
Pledged Bonds.
(b) Remarketing of Pledged Bonds. The Remarketing Agent shall
continue to use its best efforts to arrange for the sale of any Pledged Bonds
required to be remarketed pursuant to Section 4.03, subject to full
reinstatement of the Letters of Credit with respect to the drawings with which
such Bonds were purchased, at a price equal to the principal amount thereof plus
accrued interest.
(c) Notice of Remarketing. At or prior to 2:00 p.m. on the
Business Day preceding each day on which any Pledged Bonds that are successfully
remarketed by the Remarketing Agent are to be purchased, the Remarketing Agent
shall give telephonic notice, promptly confirmed in writing, to the Trustee, the
Company and the Agent specifying:
(i) the Business Day on which such purchase will take
place and the principal amount of Pledged Bonds successfully remarketed by the
Remarketing Agent, and
(ii) to the Trustee only, the names, addresses and tax
identification numbers of the proposed purchasers thereof and the denominations
of Bonds to be delivered to each purchaser and, if available, the payment
instructions for regularly scheduled interest payments.
<PAGE>
(d) Delivery of Remarketed Pledged Bonds and Proceeds Thereof.
Contemporaneously with reinstatement of the Letters of Credit as described in
Subsection 4.05(a) and the sale of Pledged Bonds arranged by the Remarketing
Agent as described in Subsection 4.05(b), (i) such Bonds (if not held in
book-entry form) shall be made available (at the Principal Office or Delivery
Office of the Trustee) to the Remarketing Agent or the purchasers thereof in
accordance with the instructions of the Remarketing Agent and (ii) the proceeds
of such sale shall be delivered to the Agent for the account of the Company to
be applied to any unpaid reimbursement obligation under the Reimbursement
Agreement with respect to the prior drawings made on the Letters of Credit in
respect of the purchase of such Bonds.
SECTION 4.06. Company Bonds
(a) Remarketing of Company Bonds. Subject to the provisions
and limitations of the Remarketing Agreement and Section 4.03, the Remarketing
Agent shall, if so directed by the Company, use its best efforts to arrange for
the sale of any Company Bonds, at a price equal to the principal amount thereof,
plus accrued interest.
(b) Notice of Remarketing. On or prior to each Business Day on
which any Company Bonds that are successfully remarketed by the Remarketing
Agent pursuant to Section 4.06(a) are to be purchased, the Remarketing Agent
shall give telephonic notice, promptly confirmed in writing, to the Trustee, the
Company, the Indexing Agent and the Agent specifying:
(i) the Business Day on which such purchase will take
place and the principal amount of Company Bonds successfully remarketed by the
Remarketing Agent, and
(ii) to the Trustee only, the names, addresses and tax
identification numbers of the proposed purchasers thereof, the denominations of
Bonds to be delivered to each purchaser and, if available, the payment
instructions for regularly scheduled interest payments.
(c) Delivery of Remarketed Company Bonds and Proceeds Thereof.
Upon the sale of Company Bonds arranged by the Remarketing Agent pursuant to
Section 4.06(a), (i) such Bonds (if not held in book-entry form) shall be made
available (at the Principal Office or Delivery Office of the Trustee) to the
Remarketing Agent or the purchasers thereof in accordance with the instructions
of the Remarketing Agent and (ii) the proceeds of such sale shall be delivered
to the Company.
SECTION 4.07. No Purchases After Acceleration; Inadequate Funds for
Purchases
(a) Anything in this Indenture to the contrary
notwithstanding, there shall be no purchases of Bonds pursuant to this Article
if the Bonds have been declared immediately due and payable pursuant to Section
7.03 and such declaration has not been annulled, stayed or otherwise suspended.
(b) If the funds available for purchases of Bonds are
inadequate for the purchase of all Bonds tendered on any Purchase Date pursuant
to this Article, the Trustee shall, after any applicable grace period: (i)
return all tendered Bonds to the Holders thereof; and (ii) return all moneys
received for the purchase of such Bonds (other than moneys provided by the
Company and other than proceeds from a drawing on the Letters of Credit, unless
the Letters of Credit are reinstated with respect thereto) to the persons
providing such moneys.
(End of Article IV)
<PAGE>
ARTICLE V
FUNDS AND LETTER OF CREDIT
Section 5.01. Creation of Funds and Accounts. There are hereby
established the following Funds and Accounts under this Indenture:
(a) The Project Fund, within which are hereby established the
following Accounts:
(i) The Capitalized Interest Account, within which
are hereby established the following Subaccounts:
(A) Bond Interest Subaccount
(B) Bank Fees Subaccount
(C) Other Fees Subaccount
(ii) The Capitalized Interest Reserve Account
(iii) The Financing Costs Account
(iv) The Project Costs Account
(v) The Equity Investment Account.
(b) The Bond Fund, within which are hereby established the
following Accounts:
(i) The Letter of Credit Debt Service Accounts within
which are hereby established a Wachovia Letter of Credit Subaccount, a SunTrust
Letter of Credit Subaccount and a Bond Subaccount.
(ii) The Letter of Credit Purchase Account
(iii) The Excess Bond Proceeds Account
(iv) The Remarketing Proceeds Purchase Account.
(c) The Trustee may establish additional accounts and
subaccounts within the Funds and accounts established hereunder as appropriate
to accomplish the purposes of this Indenture.
SECTION 5.01A. Creation of Project Fund
(a) There is hereby established with the Trustee a trust fund
designated "Project Fund" for the payment of Costs of the Projects. There shall
be deposited in each account and subaccount in the Project Fund an amount of the
proceeds from the sale of the Bonds as shall be specified in a written order
from an Authorized Representative of the Issuer to be delivered simultaneously
with the delivery of the Bonds. The Trustee shall maintain a record of the
income on investments and interest earned on amounts held in the Project Fund,
including the Capitalized Interest Account. Such income or interest shall be
transferred by the Trustee on the last Business Day of each calendar month to
the Capitalized Interest Account.
<PAGE>
(b) Pending disbursement pursuant to the Lease and the Agency
and Development Agreement, the moneys and Qualified Investments to the credit of
the Project Fund shall be held as security for the obligations to the Agent
under the Reimbursement Agreement and, upon receipt by the Trustee of a
certificate of the Agent that a event of default has occurred under the
Reimbursement Agreement and directing the application of monies in the Project
Fund, the Trustee shall transfer such monies in accordance with such direction.
SECTION 5.02. Disbursements from and Records of Project Fund
(a) Requisition, moneys in the various Accounts and
Subaccounts within the Project Fund shall be disbursed in accordance with the
provisions of such Requisition. The Trustee shall cause to be kept and
maintained adequate records pertaining to the Project Fund and all disbursements
therefrom. The Trustee shall make such records available for inspection by, or
shall provide copies thereof to, the Issuer, the Company and the Agent upon
request. The Trustee shall serve as repository for all original Requisitions
submitted for disbursements from the Project Fund.
(b) In the event that the Leased Property or any portion
thereof is destroyed or damaged by fire or other casualty, and the Company
exercises its option pursuant to Section 19.1(a) of the Lease to repair or
replace same, or in the event that any net proceeds from a condemnation award
are to be applied to make any necessary restorations of the remaining portion of
an Individual Property, the Net Proceeds shall be deposited in a separate
subaccount in the Project Costs Account within the Project Fund and, upon
receipt of a Requisition, applied to such repair, replacement or restoration,
substantially in accordance with the disbursement procedures set forth in such
Requisition.
SECTION 5.02A. Capitalized Interest Account
(a) There is hereby established with the Trustee an account
within the Project Fund designated "Capitalized Interest Account" for (i) the
reimbursement to the LC Issuers of amounts drawn under the Letters of Credit for
payment of interest on the Bonds during the period commencing on the Series
Issue Date and terminating on the Final Project Completion Date and (ii) the
payment of all amounts which constitute Supplemental Rent payable during the
period from the date hereof to the Final Project Completion Date. There shall be
deposited in each of the Bond Interest Subaccount, the Bank Fees Subaccount and
the Other Fees Subaccount within the Capitalized Interest Account an amount of
the proceeds from the sale of the Bonds as shall be specified in a written order
from an Authorized Representative of the Issuer to be delivered simultaneously
with the delivery of the Bonds. On the Final Project Completion Date any funds
remaining in the Capitalized Interest Account shall be transferred to the Excess
Bond Proceeds Account within the Bond Fund and applied as provided in Section
5.04. All income and interest earned on amounts held in the Capitalized Interest
Account shall be held in, and shall become a part of, the Capitalized Interest
Account.
(b) Prior to 12:00 noon on the Business Day immediately
preceding each Interest Payment Date, the Trustee shall present the requisite
draft and certificate for a drawing on the Letters of Credit so as to comply
with the provisions of the Letters of Credit for payment to be made in
sufficient time for the Trustee to receive the proceeds of such drawing at or
before 10:00 a.m. on such Interest Payment Date, in an amount equal to accrued
interest on the Bonds coming due on such Interest Payment Date and transfer such
<PAGE>
amount to the Letter of Credit Debt Service Account within the Bond Fund to be
applied as provided in Section 5.04(c). Prior to the Final Project Completion
Date, the Trustee shall withdraw from the Bond Interest Subaccount within the
Capitalized Interest Account an amount equal to the aggregate amount of drawings
on the Letters of Credit and transfer same to the Agent, on behalf of the LC
Issuers, pursuant to the Reimbursement Agreement.
(c) Upon receipt of a Requisition, moneys in the Bank Fees
Subaccount and the Other Fees Subaccount within the Capitalized Interest Account
shall be disbursed by the Trustee in accordance with the provisions of such
Requisition.
Section 5.02B. Capitalized Interest Reserve Account. There is hereby
established with the Trustee an account within the Project Fund designated
"Capitalized Interest Reserve Account" for the payment, to the extent the amount
on deposit in the Capitalized Interest Account is insufficient therefor, (i) the
reimbursement to the LC Issuers of amounts drawn under the Letters of Credit for
payment of interest on the Bonds during the period commencing on the Series
Issue Date and terminating on the Final Project Completion Date, and (ii) the
payment of all amounts which constitute Supplemental Rent payable during the
period from the date hereof to the Final Project Completion Date. There shall be
deposited in the Capitalized Interest Reserve Account an amount of the proceeds
from the sale of the Bonds as shall be specified in a written order from an
Authorized Representative of the Issuer to be delivered simultaneously with the
delivery of the Bonds. In the event that the aggregate amount drawn by the
Trustee on the Letters of Credit on any Interest Payment Date exceeds the amount
on deposit in the Bond Interest Subaccount within the Capitalized Interest
Account, the Trustee shall withdraw the excess from the Capitalized Interest
Reserve Account and transfer the excess to the Agent, on behalf of the LC
Issurers, pursuant to the Reimbursement Agreement. In the event that the amount
to be disbursed from the Bank Fees Subaccount or the Other Fees Subaccount
within the Capitalized Interest Account pursuant to a Requisition exceeds the
amount on deposit in such Subaccount, the Trustee shall withdrawn the excess
from the Capitalized Interest Reserve Account and transfer such excess to the
applicable Subaccount within the Capitalized Interest Account to be applied as
provided in Section 5.02A. On the Final Project Completion Date, any funds
remaining in the Capitalized Interest Reserve Account shall be transferred to
the Excess Bond Proceeds Account within the Bond Fund and applied as provided in
Section 5.04. All income and interest earned on amounts held in the Capitalized
Interest Reserve Account shall be credited to the Bond Interest Subaccount of
the Capitalized Interest Reserve Account and transferred by the Trustee on the
last Business Day of each calendar month to the Capitalized Interest Account.
Section 5.02C. Financing Costs Accounts. There is hereby established
with the Trustee an account within the Project Fund designated "Financing Costs
Account" for the payment of all Financing Costs. There shall be deposited in the
Financing Costs Account an amount of the proceeds from the sale of the Bonds as
shall be specified in a written order from an Authorized Representative of the
Issuer to be delivered simultaneously with the delivery of the Bonds. Upon
receipt of a Requisition, monies in the Financing Costs Account shall be
disbursed by the Trustee in accordance with the provisions of such Requisition.
The Trustee shall close the Financing Costs Account when all amounts deposited
therein have been disbursed for the payment of such Financing Costs. All income
and interest earned on amounts held in the Financing Costs Account shall be
transferred to the Capitalized Interest Account.
<PAGE>
Section 5.02D. Projects Costs Account. There is hereby established with
the Trustee an account within the Project Fund designated "Project Costs
Account" for the payment of all Hard and Soft Costs. There shall be deposited in
the Project Costs Account an amount of the proceeds from the sale of the Bonds
as shall be specified in a written order from an Authorized Representative of
the Issuer to be delivered simultaneously with the delivery of the Bonds.
Disbursements from the Project Costs Account shall be made in accordance with
the terms of a Requisition therefor. All income and interest earned on amounts
held in the Project Costs Account shall be credited to the Project Costs Account
and transferred by the Trustee on the last Business Day of each calendar month
to the Bond Interest Subaccount of the Capitalized Interest Account.
Section 5.02E. Equity Investment Account. There is hereby established
with the Trustee an account within the Project Fund designated "Equity
Investment Account." There shall be deposited in the Equity Investment Account
by the Issuer, such amounts, and at such times, as shall be determined by the
Issuer and contained in a written notice to the Trustee. Disbursements from the
Equity Investment Account shall be made in accordance with the terms of a
Requisition therefor. All income and interest earned on amounts held in the
Equity Investment Account shall be transferred to the Bond Interest Subaccount
of the Capitalized Interest Account.
Section 5.03 Disposition of Excess Bond Proceeds. The completion of the
Applicable Projects and payment of all Costs of the Projects payable out of the
Project Fund (except for amounts, if any, to be retained by the Trustee as
provided under the Lease for the payment of Costs of the Projects not then due
and payable) shall be evidenced by the filing with the Trustee of the
certificate of an Authorized Representative of the Company required by the
Agency and Development Agreement. As soon as practicable after the filing with
the Trustee of such certificate, any balance remaining in the Project Fund
(other than the amounts retained by the Trustee as described in the preceding
sentence) shall be transferred to the Excess Bond Proceeds Account within the
Bond Fund and applied as provided in Section 5.04.
SECTION 5.04. Bond Fund
(a) Revenues to be Paid Over to the Trustee.
All Rent Payments received by the Trustee shall be
paid directly to the Agent to be applied pursuant to the terms of the
Reimbursement Agreement. The Issuer, the Company, and the Agent have entered
into the Payment Direction Agreement which provides, among other things, that
the Company will make all Rent Payments to the Agent, in its fiduciary capacity
as agent for the Issuer. Rent Payments are not to be paid to the Trustee and are
not to be deposited in the Bond Fund, and the Trustee shall not be responsible
for the receipt, collection or disposition of Rent Payments.
(b) Creation of Bond Fund and Accounts. There is hereby
established with the Trustee a trust fund designated as the "Bond Fund", within
which there shall be established a Letter of Credit Debt Service Account, a
Letter of Credit Purchase Account, a Remarketing Proceeds Purchase Account, an
Excess Bond Proceeds Account and a Special Redemption Account. All moneys (and
only those moneys) received by the Trustee from drawings under the Letters of
Credit to pay principal of, premium, if any, on and interest on the Bonds shall
be deposited in the Letter of Credit Debt Service Account and applied to such
purpose as provided in Section 5.04(c)(i) below.
<PAGE>
(c) Application of Bond Fund. Except as otherwise provided in
Section 7.06, moneys in the Bond Fund shall be applied as follows:
(i) Moneys in the Letter of Credit Debt Service
Account shall be applied to the payment when due of principal of, premium, if
any, on and interest on the Bonds.
(ii) Moneys in the Letter of Credit Purchase Account
shall be applied to the payment of the purchase of Bonds pursuant to Article IV.
(iii) Moneys in the Remarketing Proceeds Purchase
Account shall be applied to the payment of the purchase of Bonds pursuant to
Article IV.
(iv) Available moneys in the Special Redemption
Account shall be applied to the redemption of Bonds in the case of a Special
Redemption.
(v) Notwithstanding anything to the contrary
contained herein, the Trustee shall, on the Final Project Completion Date, apply
the following amounts in the Bond Fund to the redemption of Bonds in accordance
with Article III; provided, however, that in the event that the following
amounts shall total, in the aggregate, less than $100,000, all of the following
amounts shall be transferred to the Agent, for the credit of the Company, to the
payment of the first Rent Payments thereafter to become due under the Lease:
(A) All moneys which are transferred to the
Excess Bond Proceeds Account within the Bond Fund from the Project Fund
pursuant to Section 5.03;
(B) All moneys which are transferred to the
Excess Bond Proceeds Account within the Bond Fund from the Capitalized
Interest Account pursuant to Section 5.02A;
(C) All moneys which are transferred to the
Excess Bond Proceeds Account within the Bond Fund from the Capitalized
Interest Reserve Account pursuant to Section 5.02B; and
(D) All investment earnings on amounts on
deposit in the Bond Fund.
(d) Drawings on Letters of Credit. Prior to 12:00 noon on the
Business Day immediately preceding each Interest Payment Date (commencing
January 5, 1998), each mandatory sinking fund redemption date or acceleration
date and the maturity date of the Bonds, the Trustee shall present the requisite
draft and certificate for a drawing on the Letters of Credit so as to comply
with the provisions of the Letters of Credit for payment to be made in
sufficient time for the Trustee to receive the proceeds of such drawing at or
before 10:00 a.m. on such Interest Payment Date, redemption date or maturity
date, as the case may be, to pay principal or redemption price of and interest
on the Bonds due on such date. In addition, the Trustee shall draw on the
Letters of Credit pursuant to their respective terms in accordance with and in
order to satisfy the requirements of Section 7.03. By 5:00 p.m. on each date it
presents the requisite documents for a drawing on the Letters of Credit, the
Trustee shall give notice to the Company by telephone, promptly confirmed in
writing, of the amount to be so drawn. The Trustee shall promptly notify the
<PAGE>
Company by oral or telephonic communication confirmed in writing if the LC
Issuers fail to transfer funds in accordance with the Letters of Credit upon the
presentment of the requisite drafts and certificates. In calculating the amount
to be drawn on the Letters of Credit for the payment of principal of and
interest on the Bonds, whether on an Interest Payment Date, at maturity or upon
redemption or acceleration, the Trustee shall not take into account the
potential receipt of funds from the Company under the Lease on such Interest
Payment Date, or the existence of any other moneys in the Bond Fund, but shall
draw on the Letters of Credit for the full amount of principal and interest
coming due on the Bonds.
(e) Payment in Full. Whenever the amount in the Bond Fund
available for the payment of principal or redemption price or and interest on
the Bonds in accordance with Subsection 5.04(c) is sufficient to redeem all of
the outstanding Bonds and to pay interest accrued to the redemption date, the
Issuer will, upon request of the Company, cause the Trustee to redeem all such
Bonds on the redemption date specified by the Company pursuant to the Bonds and
the Indenture. Any amounts remaining in the Bond Fund after payment in full of
the principal of and premium, if any, and interest on the Bonds (or provision
for payment thereof) and the fees, charges and expenses of the Issuer and the
Trustee shall be paid to the person entitled thereto in accordance with Section
10.01.
(f) Credits. If at any time the Trustee has funds, including
funds received pursuant to the Letters of Credit, which under the provisions of
this Indenture are to be applied to pay the principal of, premium, if any, on or
interest on the Bonds, the Company, to the extent that such funds are to be so
applied, shall be entitled to a credit, equal to the amount of such funds,
against payments due from the Company under the Lease; provided that, with
respect to funds received pursuant to one or more drawings on the Letters of
Credit, the LC Issuers have been reimbursed therefor.
SECTION 5.05. Investment of Bond Fund and Project Fund
(a) All moneys received by the Trustee under this Indenture
shall be deposited with the Trustee or in accounts maintained solely in the name
of the Trustee with another financial institution or institutions, subject to
the provisions of the Fund Account Security Agreement, until or unless invested
or deposited as provided in this Section. All deposits with the Trustee (whether
original deposits or deposits or redeposits in time accounts) shall be secured
as required by applicable law for such trust deposits.
(b) Moneys in the Bond Fund (except moneys in the Letter of
Credit Debt Service Account and except any moneys representing principal of, or
premium, if any, or interest on, any Bonds which are deemed paid under Section
10.02) and the Project Fund shall be invested and reinvested by the Trustee in
Qualified Investments at the written direction of an Authorized Representative
of the Company. Except as otherwise provided in Section 10.02, moneys deposited
in the Letter of Credit Debt Service Account, the Letter of Credit Purchase
Account or the Remarketing Proceeds Purchase Account shall not be invested but
shall be held in their respective accounts pending application pursuant to
Section 5.04 or Article IV, as applicable. Moneys in the Bond Fund representing
principal of, or premium, if any, or interest on, any Bonds which are deemed
paid under Section 10.02 shall be invested only if and as provided in Section
10.02.
(c) Investments pursuant to this Section of moneys in the Bond
Fund shall mature or be redeemable at the times and in the amounts necessary to
provide moneys to pay Debt Service as it becomes due on Interest Payment Dates,
<PAGE>
at stated maturity or by redemption, or to reimburse the LC Issuers when due for
drawings on the Letters of Credit applied to make Debt Service payments. The
Trustee shall sell or redeem investments credited to the Bond Fund to produce
sufficient moneys available hereunder at the times required for the purpose of
paying Debt Service (or reimbursing the LC Issuers for drawings on the Letters
of Credit therefor) when due as aforesaid, and shall do so without necessity for
any order by or on behalf of the Issuer or the Company and without restriction
by reason of any order. Each investment of moneys in the Project Fund shall
mature or be redeemable by the Trustee at such time as may be foreseeably
necessary to make payments from the Project Fund. The Trustee shall, from time
to time, sell investments in the Project Fund or the Bond Fund made pursuant to
this Section and, at the written direction of an Authorized Representative of
the Company, reinvest the proceeds therefrom in Qualified Investments maturing
or redeemable as aforesaid.
(d) Any investment of moneys in any Fund established under
this Indenture may be purchased from or through, or sold to, the Trustee or any
affiliate of the Trustee; and any such investment made through the purchase of
shares in a fund described in clause (a), (b) or (e) of the definition of
Qualified Investments may be in a fund which is advised or administered by the
Trustee or any affiliate of the Trustee (for which services the Trustee or such
affiliate, as the case may be, may receive a fee).
(e) An investment made from moneys credited to the Bond Fund
shall constitute part of that Fund and an investment made from moneys credited
to any Account within the Project Fund and subsequently transferred to the Bond
Interest Subaccount of the Capitalized Interest Account therein shall constitute
part of the Capitalized Interest Account therein, and each respective Fund shall
be credited with all proceeds of sale and income from investment of moneys
credited thereto. For purposes of this Indenture, those investments shall be
valued at cost.
(f) If the Company shall not give directions as to investments
of moneys held by the Trustee in the Project Fund or the Bond Fund, or if an
Event of Default has occurred and is continuing hereunder, the Trustee shall
make such investments in Qualified Investments as described in this Section and
as permitted under applicable law as it deems advisable; provided that in no
event shall it invest in securities issued by or obligations of, or guaranteed
by, the Issuer, the Company or any Affiliate.
(g) Notwithstanding any other provisions contained in this
Section 5.05 or elsewhere in this Indenture, the Trustee is hereby authorized
and directed to enter into the Funds Investment Agreement, dated as of November
1, 1997, among the Company, the Trustee and Wachovia Bank, N.A., in its capacity
as depository of the moneys described therein, and the compliance by the Trustee
with the terms and provisions thereof shall constitute full compliance by the
Trustee with the terms and provisions of this Indenture relating to the deposit
and investment of the various Funds and Account established hereunder.
SECTION 5.06. Moneys to be Held in Trust
(a) Revenues and investments thereof in the Bond Fund (other
than the Excess Bond Proceeds Account therein) shall, until applied as provided
in this Indenture, be held by the Trustee for the benefit of the Holders of all
outstanding Bonds, in the order of priority set forth in the granting clauses of
this Indenture, except that any portion of the Revenues representing principal
<PAGE>
of, and premium, if any, and interest on, any Bonds which have matured or been
called for redemption in accordance with Article III or which are otherwise
deemed paid under Section 10.02, shall be held for the benefit of the Holders of
such Bonds only.
(b) Revenues and investments thereof in all Accounts in the
Project Fund and the Excess Bond Proceeds Account in the Bond Fund shall, until
applied as provided in this Indenture, be held by the Trustee for the benefit of
the Agent in the order of priority set forth in the granting clauses of this
Indenture.
Section 5.07. Nonpresentment of Bonds. In the event that any Bond shall
not be presented for payment when the principal thereof becomes due in whole or
in part, either at stated maturity or by redemption or acceleration prior to
maturity or a check or draft for interest is uncashed, all liability of the
Issuer to that Holder for such Bond or such check or draft thereupon shall cease
and be discharged completely; provided that moneys sufficient to pay the
principal and accrued interest then due of that Bond or such check or draft
shall have been made available to the Trustee for the benefit of its Holder.
Thereupon, it shall be the duty of the Trustee to hold those moneys subject to
the provisions of Section 10.03.
SECTION 5.08. Letter of Credit
(a) Expiration. The Letters of Credit may provide that they
expire upon the earliest to occur of (i) the Expiration Date, (ii) the date when
the Trustee surrenders the Letters of Credit to the LC Issuers for cancellation,
(iii) the date on which the LC Issuers receive a certificate from the Trustee to
the effect that there are no outstanding Bonds or that the Trustee has accepted
an Alternate Letter of Credit, (iv) the date on which the final drawing
available under the Letters of Credit is honored by the LC Issuers, or (v) five
(5) Business Days after the date upon which the Trustee receives a notice from
the Agent stating that an event of default has occurred under the Reimbursement
Agreement and directing the Trustee to call the Bonds for mandatory purchase or
to declare the principal of the Bonds to be immediately due and payable.
(b) Extension or Replacement in Anticipation of Expiration.
Not later than the Interest Payment Date next preceding the Expiration Date of
the current Letters of Credit or, if earlier, the 30th day next preceding such
Expiration Date, the Company may provide for the delivery to the Trustee of (1)
an amendment to the Letters of Credit which extends the Expiration Date to a
date that is not earlier than six months from its then current Expiration Date
and that follows an Interest Payment Date by not less than two Business Days and
not more than 15 calendar days or (2) Alternate Letters of Credit issued by a
national banking association, a bank, a trust company or other financial
institution or credit provider, which shall have terms which are the same in all
material respects (except Expiration Date and except any changes pursuant to
this Indenture with respect to interest or premium coverage in connection with a
concurrent interest rate reset or conversion) as the current Letters of Credit
and which shall have an Expiration Date that is not earlier than one year from
the Expiration Date of the Letters of Credit then in effect and that follows an
Interest Payment Date by not less than two Business Days and not more than 15
calendar days. The Company shall be deemed to have provided for such amendment
extending the Letters of Credit or for such Alternate Letters of Credit if the
Company shall have delivered to the Trustee, in form satisfactory to the
Trustee, a commitment from the LC Issuers or the proposed provider of the
Alternate Letters of Credit to deliver such amendment or Alternate Letters of
Credit on or before the Interest Payment Date next preceding the current
<PAGE>
Expiration Date of the Letters of Credit; provided that if such amendment or
Alternate Letters of Credit are not delivered to the Trustee on or before such
Interest Payment Date, an Event of Default shall be deemed to have occurred
under Subsection 7.01(h). Any such amended Letters of Credit or Alternate
Letters of Credit shall provide for drawings to pay up to (i) while the Bonds
are in the Weekly Mode, an amount equal to the principal amount of the
outstanding Bonds, plus 43 days interest thereon computed at the Maximum Rate,
and (ii) from and after the Conversion Date, an amount equal to the principal
amount of the outstanding Bonds, plus 210 days interest thereon at the
applicable Term Rate based on a 360-day year. The institution issuing the
Alternate Letters of Credit must be such as to maintain a rating on the Bonds
equal to or higher than the then current rating on the Bonds given by the Rating
Agencies, and the Trustee shall have received no later than 45 days (or such
shorter period as shall be acceptable to the Trustee) prior to the Interest
Payment Date next preceding the Expiration Date written notice from each Rating
Agency then rating the Bonds that the issuance of the Alternate Letters of
Credit and substitution thereof for the then current Letters of Credit will
result in a rating on the Bonds equal to or higher than the then current rating
on the Bonds. The Trustee shall not accept Alternate Letters of Credit under
this Subsection unless there shall have been delivered to the Trustee an opinion
of counsel to the Agent satisfactory to the Trustee with respect to the
validity, binding effect and enforceability of such Alternate Letters of Credit.
If the Letters of Credit are so extended or if Alternate Letters of Credit
complying with the requirements of this Subsection are so provided, the
mandatory purchase pursuant to Section 4.02(a)(ii) shall not occur. Unless all
of the conditions of this Subsection which are required to be met 45 days (or
such shorter period as shall be acceptable to the Trustee) preceding the
Interest Payment Date next preceding the Expiration Date of the Letters of
Credit have been satisfied, the Trustee shall take all action necessary to call
the Bonds for mandatory purchase pursuant to Section 4.02(a)(ii) on the Interest
Payment Date next preceding such Expiration Date; provided that if the Company
shall have notified the Trustee in writing that it expects to meet all the
conditions for the delivery of an amendment extending the existing Letters of
Credit, or the delivery of Alternate Letters of Credit from a bank identified in
such notice, meeting all of the requirements of this Subsection on or before the
Interest Payment Date next preceding the Expiration Date of the existing Letters
of Credit, then the notice of mandatory purchase pursuant to Section 4.02(a)(ii)
shall state that it is subject to rescission, and the Trustee shall rescind such
notice, if such conditions are so met (in which case such mandatory redemption
or mandatory purchase shall not occur). The provisions of this Subsection with
respect to the substitution of Alternate Letters of Credit in the event that the
Expiration Date of the Letters of Credit is not extended shall apply equally to
the substitution of any Alternate Letters of Credit in the event that the
Expiration Date of an existing Alternate Letter of Credit is not extended.
(c) Other Replacement. The delivery of Alternate Letters of
Credit in anticipation of the expiration of current Letters of Credit shall be
governed by Subsection 5.08(b). Otherwise, if at any time the Company shall
provide for the delivery to the Trustee of (1) Alternate Letters of Credit which
shall have terms which are the same in all material respects (except as to
Expiration Date and except any changes pursuant to this Indenture with respect
to interest or premium coverage in connection with a concurrent interest rate
reset or conversion) as the current Letters of Credit, which shall have an
Expiration Date that is not less than one year from the date of their delivery
and not sooner than the Expiration Date of the current Letters of Credit then in
effect and that follows an Interest Payment Date by not less than two Business
<PAGE>
Days and not more than 15 calendar days and which shall be issued by a national
banking association, a bank, a trust company or other financial institution or
credit provider satisfying the requirements of Subsection 5.08(b), and (2) an
opinion of counsel to the proposed issuer satisfactory to the Trustee with
respect to the validity, binding effect and enforceability of such Alternate
Letters of Credit, and if the requirements set forth in this Subsection are met,
then the Trustee shall accept such Alternate Letters of Credit and promptly
surrender for cancellation the previously held Letters of Credit to the issuer
thereof in accordance with the terms of such Letters of Credit. Any Alternate
Letters of Credit shall provide for drawings to pay up to (i) while the Bonds
are in the Weekly Mode, an amount equal to the principal amount of the
outstanding Bonds, plus 43 days interest thereon computed at the Maximum Rate
based on a 365-day year, and (ii) while the Bonds are in the Term Mode, an
amount equal to the principal amount of the outstanding Bonds, plus 210 days
interest thereon at the Term Rate based on a 360-day year. The institutions
issuing the Alternate Letters of Credit must be such as to maintain a rating on
the Bonds equal to or higher than the then current rating on the Bonds given by
the Rating Agencies. The replacement of the Letters of Credit by the Alternate
Letters of Credit must not, by itself, adversely affect the current rating or
ratings on the Bonds, and the absence of such an adverse effect shall be
evidenced in writing by the Rating Agencies to the Trustee prior to such
replacement.
(d) Notice to Holders. While the Bonds are in the Weekly Mode,
the Trustee shall give notice to the Holders, in the name of the Issuer, of the
proposed replacement of the current Letters of Credit with Alternate Letters of
Credit, which notice shall specify (i) the proposed replacement date and (ii)
the last dates prior to such proposed replacement on which Bondholder Tender
Notices must be delivered and Bonds must be delivered (if not held in book-entry
form) for the purchase of Bonds pursuant to Section 4.01 and the places where
such Bondholder Tender Notices and Bonds must be delivered for such purchase.
Such notice shall be given by first class mail, postage prepaid, not less than
30 days prior to the Interest Payment Date next preceding the proposed
replacement date.
(e) Reduction. In each case that Bonds are redeemed or deemed
to have been paid pursuant to Section 10.01, the Trustee shall take such action
as may be permitted under the Letters of Credit to reduce the amount available
thereunder to an amount equal to the principal amount of the outstanding Bonds,
plus (i) while the Bonds are in the Weekly Mode, 43 days interest on such
principal amount computed at the Maximum Rate based on a 365-day year, and (ii)
while the Bonds are in the Term Mode, 210 days interest on such principal amount
computed at a rate not less than the applicable Term Rate based on a 360-day
year; provided that such action by the Trustee shall not be required if the
Letters of Credit so reduce automatically pursuant to their terms.
(f) Substitution by Agent. Upon reduction of the amount
available under the Letters of Credit pursuant to the terms of the Letters of
Credit and Subsection 5.08(e) as a result of redemption of Bonds, the LC Issuers
shall have the right, at their option, to require the Trustee to promptly
surrender the outstanding Letters of Credit to the LC Issuers and to accept in
substitution therefor substitute Letters of Credit in the same form, dated the
date of such substitution, for an amount equal to the amount available under the
Letters of Credit as so reduced, but otherwise having terms identical to the
then outstanding Letters of Credit.
<PAGE>
(g) Other Credit Enhancement; No Credit Enhancement. After a
mandatory purchase of the Bonds pursuant to Section 4.02(a)(ii) or (iii),
nothing in this Section shall limit the Company's right to provide other credit
enhancement (such as a letter of credit not meeting the requirements of this
Section or bond insurance) or no credit enhancement as security for the Bonds;
provided that any such credit enhancement shall have administrative provisions
reasonably satisfactory to the Trustee.
Section 5.09. Opening of Funds and Accounts. The Trustee shall not be
obligated to open or maintain any fund or account hereunder if at such time no
moneys are on deposit or to be deposited therein.
(End of Article V)
<PAGE>
ARTICLE VI
COVENANTS AND REPRESENTATIONS
OF ISSUER
Section 6.01. Payment of Principal, Premium, if any, and Interest. The
Issuer covenants that it will promptly pay or cause to be paid the principal of,
and premium, if any, and interest on every Bond issued under this Indenture at
the place, on the dates, and in the manner provided herein and in said Bonds
according to the true intent and meaning thereof, but solely from the amounts
pledged therefor which are from time to time held by the Trustee in the Bond
Fund. The principal of, and premium, if any, and interest on the Bonds are
payable from the amounts to be paid under the Lease and otherwise as provided
herein and in the Lease, which amounts are hereby specifically pledged to the
payment thereof in the manner and to the extent herein specified, and nothing in
the Bonds or in this Indenture shall be construed as pledging any other funds or
assets of the Issuer. The Issuer shall not in any event be liable for the
payment of the principal of, or premium, if any, or interest on any of the Bonds
or for the performance of any pledge, obligation or agreement undertaken by the
Issuer except to the extent that the moneys pledged herein are sufficient
therefor.
Section 6.02. No Further Assignment of Revenues. The Issuer will not
assign the Revenues or create any debt, lien or charge thereon, other than the
assignment thereof under this Indenture and the assignment to the Agent under
the Mortgages, the Assignments of Rents and the Master Assignment.
Section 6.03. Recording and Filing. The Company has agreed pursuant to
the Lease that it will cause all financing statements related to this Indenture
and all supplements hereto to be recorded and filed in such manner and in such
places as may from time to time be required by law in order to preserve and
protect fully the security of the Holders of the Bonds and the Agent and the
rights of the Trustee hereunder, and to take or cause to be taken any and all
other action necessary to perfect the security interest created by this
Indenture. The Trustee shall be entitled to rely conclusively upon an opinion of
counsel reasonably satisfactory to it as to any of the matters set forth in this
Section 6.03.
SECTION 6.04. [Intentionally Omitted]
Section 6.05. Further Assurances. Except to the extent otherwise
provided in this Indenture, the Issuer shall, from time to time, execute and
deliver such further instruments and take such further action as the Trustee may
reasonably require to carry out the purposes of this Indenture.
Section 6.06. Observance and Performance of Agreements. The Issuer will
observe and perform faithfully at all times covenants, agreements, authority,
actions, undertakings, stipulations and provisions to be observed or performed
on its part under the Lease, this Indenture and the Bonds, and under all
proceedings of the Issuer pertaining thereto.
Section 6.07. Representations and Warranties. The Issuer represents and
warrants that:and Warranties
(a) It is duly authorized to issue the Bonds, to execute and
deliver this Indenture and the Lease and to provide the security for payment of
the Debt Service in the manner and to the extent set forth in this Indenture.
<PAGE>
(b) All actions required on its part to be performed for the
issuance, sale and delivery of the Bonds and for the execution and delivery of
this Indenture and the Lease have been or will be taken duly and effectively.
(c) The Bonds will be valid and binding limited obligations of
the Issuer according to their terms.
(End of Article VI)
<PAGE>
ARTICLE VII
DEFAULT AND REMEDIES
Section 7.01. Defaults; Events of Default. The occurrence of any of the
following events is defined as and declared to be and to constitute an Event of
Default hereunder:
(a) Failure to pay the principal of or any premium on any Bond
when such principal or premium shall become due and payable, whether at stated
maturity, by redemption, by acceleration or otherwise;
(b) Failure to pay any interest on any Bond when due;
(c) Failure to pay the purchase price due to the Holder of any
Bond who has tendered such Bond for purchase pursuant to Article IV when such
purchase price shall have become due and payable;
(d) Failure by the Issuer to observe or perform any other
covenant, agreement or obligation on its part to be observed or performed and
which is contained in this Indenture or in the Bonds, which failure shall have
continued for a period of 90 days after written notice, by registered or
certified mail, to the Issuer, the Agent and the Company specifying the failure
and requiring that it be remedied, which notice may be given by the Trustee in
its discretion and shall be given by the Trustee at the written request of the
Holders of not less than 25% in aggregate principal amount of Bonds outstanding;
(e) The occurrence and continuance of an Event of Default as
defined in Section 17.1 of the Lease;
(f) Receipt by the Trustee of a written notice from the Agent
stating that an Event of Default has occurred under the Reimbursement Agreement
and directing the Trustee to call the Bonds for mandatory purchase or to declare
the principal of the outstanding Bonds immediately due and payable;
(g) Receipt by the Trustee of a written notice from the Agent,
prior to the sixth day (or, if such sixth day is not a Business Day, the next
preceding Business Day) following payment of a drawing under any Letter of
Credit for interest on Bonds which remain outstanding after the application of
the proceeds of such drawing, stating that such Letter of Credit will not be
reinstated with respect to such interest;
(h) Failure by the Company to cause an amendment extending the
Expiration Date of the current Letters of Credit or Alternate Letters of Credit
to be delivered to the Trustee pursuant to Subsection 5.08(b) on or before the
Interest Payment Date next preceding such Expiration Date, unless the Bonds have
been called for mandatory redemption or mandatory purchase on such Interest
Payment Date pursuant to Section 4.02(a)(ii);
(i) The occurrence of an Act of Bankruptcy of an LC Issuer; or
(j) The Issuer becomes insolvent or fails, or admits in
writing its inability, to pay its debts as they mature or applies for, consents
to, or acquiesces in the appointment of a trustee, receiver or custodian for the
Issuer or a substantial part of its property; or in the absence of such
application, consent or acquiescence, a trustee, receiver or custodian is
<PAGE>
appointed for the Issuer or a substantial part of its property and is not
discharged within sixty (60) days; or any bankruptcy, reorganization, debt
arrangement, moratorium or any case or proceeding under bankruptcy or insolvency
law, or any dissolution or liquidation proceeding, is instituted by or, if
permitted by law, against the Issuer and, if instituted against the Issuer, is
consented to or acquiesced in by the Issuer or is not dismissed within sixty
(60) days, or if an "order for relief" is entered at any time in any such case
under the Bankruptcy Code.
The term "default" or "failure" as used in this Article means a default
or failure by the Issuer in the observance or performance of any of the
covenants, agreements or obligations on its part to be observed or performed
contained in this Indenture or in the Bonds or a default or failure by the
Company under the Lease, exclusive of any period of grace or notice required to
constitute an Event of Default as provided above or in the Lease.
Section 7.02. Notice of Default. If an Event of Default shall
occur, the Trustee shall give written notice of the Event of Default (other than
an Event of Default described in Section 7.01(j), as to which no notice is
required) to the Issuer, the Company, the Agent, the Indexing Agent and the
Remarketing Agent within five (5) days after the Trustee acquires actual
knowledge of the Event of Default. If an Event of Default occurs of which the
Trustee has notice pursuant to this Indenture, the Trustee shall give written
notice thereof, within 30 days after the Trustee's receipt of notice of its
occurrence, to the Holders of all Bonds outstanding as shown by the Register at
the close of business 15 days prior to the mailing of that notice; provided that
except in the case of a default in the payment of the principal of or any
premium or interest on any Bond or the purchase price of Bonds tendered for
purchase pursuant to Section 4.01 or 4.02, the Trustee shall be protected in
withholding such notice if and so long as the Trustee in good faith determines
that the withholding of notice to the Holders is in the best interests of the
Holders.
SECTION 7.03. Acceleration
(a) Upon the occurrence of any Event of Default under
Subsection 7.01(d), (e) or (f), the Trustee shall, upon the written direction of
the Agent, declare, by a notice in writing delivered to the Issuer and the
Company, the principal of all Bonds outstanding (if not then already due and
payable), together with interest accrued thereon, to be due and payable
immediately; provided that, if the Bonds are in the Weekly Mode, the Agent may,
at its option, but subject to the following provisions of this paragraph, direct
the Trustee in writing to call (in which case the Trustee shall call) the Bonds
for mandatory purchase pursuant to Section 4.02(a)(iii) on a Business Day
stipulated by the Agent in such direction, which Business Day shall not be
earlier than 5 Business Days (or such shorter period as shall be acceptable to
the Trustee) after the date the Trustee receives such direction. Irrespective of
whether an Event of Default has occurred under Section 7.01(d), (e) or (f) for
which the Agent has directed the Trustee to call the Bonds for mandatory
purchase, upon the occurrence of an Event of Default under Subsection 7.01(g) or
(h), the Trustee shall, and upon the occurrence of an Event of Default under
Subsection 7.01(a), (b), (c) or (i) the Trustee may, declare the principal of
all Bonds outstanding (if not then already due and payable) of the Series of
Bonds to which such Event of Default pertains, and the interest accrued thereon,
to be due and payable immediately, such declaration to be made by a notice in
writing delivered to the Issuer, the Holder and the Company. Upon any
declaration that the principal of and interest on the Bonds are due and payable
immediately, such principal and interest shall become and be due and payable
immediately.
<PAGE>
(b) Written notice of any such declaration shall be given
concurrently to the Agent, the Indexing Agent and the Remarketing Agent. The
Trustee immediately upon such declaration shall give notice thereof in the same
manner as provided in Section 3.04 with respect to redemption of the Bonds,
except that there shall be no minimum period of notice prior to the date of
payment. Such notice shall specify the date on which payment of principal and
interest shall be tendered to the Holders of the Bonds.
(c) Upon any such declaration hereunder, the Trustee shall (i)
immediately draw upon the Letters of Credit to the full extent permitted by the
terms thereof (such drawing to provide for payment by the LC Issuers to be due
at the earliest time which the Trustee may require under the Letters of Credit
and in no case later than the Business Day following the date of declaration of
acceleration and to include amounts in respect of interest accruing on the Bonds
through the date payment of such drawing by the LC Issuers is due) and (ii)
immediately exercise such rights as it may have under the Lease to declare all
payments thereunder to be immediately due and payable. Upon receipt by the
Trustee of payment of the full amount drawn on the Letters of Credit and
provided sufficient moneys are available in the Bond Fund to pay pursuant to
Section 5.04 all sums due on the Bonds, (A) interest on the Bonds shall cease to
accrue as provided in Section 10.03 and (B) the Agent shall succeed to and be
subrogated to the right, title and interest of the Trustee and the Holders in
and to all funds held under this Indenture (except any funds held in the Bond
Fund or any account with respect to Undelivered Bonds which are identified for
the payment of the Bonds or of the purchase price of Undelivered Bonds) and any
other security held for the payment of the Bonds, all of which, upon payment of
any fees and expenses due and payable to the Trustee pursuant to the Lease or
this Indenture, shall be assigned by the Trustee to the Agent.
(d) If, after the principal of the Bonds has been so declared
to be due and payable, all arrears of principal of and interest on the Bonds
outstanding are paid in full, and the Issuer and the Company also perform all
other things in respect of which either of them may have been in default
hereunder, under the Lease or under the Reimbursement Agreement and pay the
reasonable charges of the Trustee and the Holders, including reasonable
attorney's fees, then, and in every such case, the Trustee or the Holders of a
majority in principal amount of the Bonds then outstanding, by notice to the
Issuer and the Company (and to the Holders or the Trustee, as the case may be),
may annul such declaration and its consequences, and such annulment shall be
binding upon the Trustee and all Holders; provided that there shall be no
annulment of any declaration resulting from (i) any Event of Default specified
in Subsection 7.01(f) or (g) during the Agent Consent Period, without the prior
written consent of the Agent or (ii) any Event of Default which has resulted in
a drawing under the Letters of Credit unless the Trustee has received written
notice from the LC Issuers that the Letters of Credit have been reinstated (A)
while the Bonds are in the Weekly Mode, to an amount equal to the principal
amount of the Bonds outstanding, plus 43 days interest thereon at the Maximum
Rate, and (B) while the Bonds are in a Term Mode, to an amount equal to the
principal amount of the Bonds outstanding, plus 210 days interest thereon at a
rate not less than the current Term Rate. No annulment shall extend to or affect
any subsequent Event of Default or shall impair any rights consequent thereon.
SECTION 7.04. Other Remedies; Rights of Holders
(a) With or without taking action under Section 7.03, upon the
occurrence and continuance of an Event of Default, the Trustee may pursue any
<PAGE>
available remedy to enforce the payment of Debt Service or the observance and
performance of any other covenant, agreement or obligation under this Indenture,
the Lease, the Letters of Credit, the other Security Documents or any other
instrument providing security, directly or indirectly, for the Bonds.
(b) If any Event of Default has occurred and is continuing,
the Trustee in its discretion may, and upon the written request of Holders of a
majority in principal amount of all Bonds outstanding and receipt of indemnity
to its satisfaction shall, in its own name:
(i) By mandamus, or other suit, action or proceeding at
law or in equity, enforce all rights of the Holders, including the right to
require the Issuer to enforce any rights under the Lease and to require the
Issuer to carry out any other provisions of this Indenture for the benefit of
the Holders;
(ii) Bring suit upon the Bonds;
(iii) By action or suit in equity require the Issuer to
account as if it were the trustee of an express trust for the Holders; and
(iv) By action or suit in equity enjoin any acts or things
which may be unlawful or in violation of the rights of the Holders.
(c) If an Event of Default under Subsection 7.01(e) occurs and
is continuing, the Trustee in its discretion may, and upon the written request
of Holders of a majority in principal amount of all Bonds outstanding or of the
Agent and receipt of indemnity to its satisfaction shall, enforce each and every
right granted to it as assignee of the Lease.
(d) No remedy conferred upon or reserved to the Trustee (or to
the Holders) by this Indenture is intended to be exclusive of any other remedy.
Each remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or otherwise to the Trustee or to the Holders now or hereafter
existing.
(e) No delay in exercising or omission to exercise any remedy,
right or power accruing upon any default or Event of Default shall impair that
remedy, right or power or shall be construed to be a waiver of any default or
Event of Default or acquiescence therein. Every remedy, right and power may be
exercised from time to time and as often as may be deemed to be expedient.
(f) No waiver of any default or Event of Default hereunder,
whether by the Trustee or by the Holders, shall extend to or shall affect any
subsequent default or Event of Default or shall impair any remedy, right or
power consequent thereon.
(g) As the grantee of a security interest in the Lease (except
for the Reserved Rights), the Trustee is empowered to enforce each remedy, right
and power granted to the Issuer under the Lease. In exercising any remedy, right
or power thereunder or hereunder, the Trustee shall take any action which would
best serve the interests of the Holders in the judgment of the Trustee, applying
the standards described in Sections 8.01 and 8.02.
Section 7.05. Right of Holders to Direct Proceedings. The Holders of
majority in aggregate principal amount of Bonds Outstanding shall have the right
to direct, by an instrument or document in writing executed and delivered to the
Trustee, the method and place of conducting all remedial proceedings hereunder;
<PAGE>
provided that (i) any direction shall be in accordance with the provisions of
law and of this Indenture, (ii) the Trustee shall be indemnified as provided in
Sections 8.01 and 8.02, (iii) the Trustee may take any other action which it
deems to be proper and which is not inconsistent with the direction, and (iv)
during the Agent Consent Period, then the Agent shall have the sole right to
give such direction in lieu of such Holders.
Section 7.06. Application of Moneys. All moneys received by the Trustee
pursuant to any drawing made upon the Letters of Credit pursuant to Section 7.03
shall be applied by the Trustee to and only to the payment of principal of or
premium, if any, or interest on the Bonds (other than Bonds known by the Trustee
to be Company Bonds and Pledged Bonds). After payment of any costs, expenses,
liabilities and advances paid, incurred or made by the Trustee in the collection
of moneys pursuant to any right given or action taken under the provisions of
this Article or the provisions of the Lease or the Letters of Credit (including,
without limitation, reasonable attorneys' fees and expenses, except as limited
by law or judicial order or decision entered in any action taken under this
Article), all moneys so received by the Trustee, shall be applied as follows,
subject to Sections 3.05, 5.06 and 5.07:
(a) Unless the principal of all of the Bonds shall have
become, or shall have been declared to be, due and payable, all of those moneys
shall be deposited in the Bond Fund and shall be applied:
First -- To the payment to the Holders entitled
thereto of all installments of interest then due on the Bonds,
in the order of the dates of maturity of the installments of
that interest, beginning with the earliest date of maturity
and, if the amount available is not sufficient to pay in full
any particular installment, then to the payment thereof
ratably, according to the amounts due on that installment, to
the Holders entitled thereto, without any discrimination or
privilege, except as to any difference in the respective rates
of interest specified in the Bonds; and
Second -- To the payment to the Holders entitled
thereto of the unpaid principal of any of the Bonds which
shall have become due (other than Bonds previously called for
redemption for the payment of which moneys are held pursuant
to the provisions of this Indenture), whether at stated
maturity or by redemption, in the order of their due dates,
beginning with the earliest due date, with interest on those
Bonds from the respective dates upon which they became due at
the rates specified in those Bonds, and if the amount
available is not sufficient to pay in full all Bonds due on
any particular date, together with that interest, then to the
payment thereof ratably, according to the amounts of principal
due on that date, to the Holders entitled thereto, without any
discrimination or privilege.
The surplus, if any, remaining after the application of the
moneys as set forth above shall to the extent of any
unreimbursed drawing under the Letters of Credit, or other
obligations owing to the Agent under the Reimbursement
Agreement, be paid to the Agent or the LC Issuers, as
applicable. Any remaining moneys shall be paid to the Company
or the person lawfully entitled to receive the same as a court
of competent jurisdiction may direct.
<PAGE>
(b) If the principal of all of the Bonds shall have become due
or shall have been declared to be due and payable pursuant to this Article, all
of those moneys shall be deposited into the Bond Fund and shall be applied to
the payment of the principal, premium (if any) and interest then due and unpaid
upon the Bonds, without preference or priority of principal over interest, of
interest over principal, of any installment of interest over any other
installment of interest, or of any Bond over any other Bond, ratably, according
to the amounts due respectively for principal and interest, to the Holders
entitled thereto, without any discrimination or privilege, except as to any
difference in the respective rates of interest specified in the Bonds.
(c) If the principal of all of the Bonds shall have been
declared to be due and payable pursuant to this Article, and if that declaration
thereafter shall have been rescinded and annulled under the provisions of
Section 7.03 or 7.10, subject to the provisions of paragraph (b) of this Section
in the event that the principal of all of the Bonds shall become due and payable
later, the moneys shall be deposited in the Bond Fund and shall be applied in
accordance with the provisions of Article V.
(d) Whenever moneys are to be applied pursuant to the
provisions of this Section, those moneys shall be applied at such times, and
from time to time, as the Trustee shall determine, having due regard to the
amount of moneys available for application and the likelihood of additional
moneys becoming available for application in the future. Whenever the Trustee
shall direct the application of those moneys, it shall fix the date upon which
the application is to be made (and with respect to acceleration such date shall
be fixed in accordance with Section 7.03), and upon that date, interest shall
cease to accrue on the amounts of principal, if any, to be paid on that date,
provided the moneys are available therefor. The Trustee shall give notice of the
deposit with it of any moneys and of the fixing of that date, all consistent
with the requirements of Section 2.08 for the establishment of, and for giving
notice with respect to, a Special Record Date for the payment of overdue
interest. Except as otherwise provided in Section 2.13, the Trustee shall not be
required to make payment of principal of and any premium on a Bond to the Holder
thereof, until the Bond shall be presented to the Trustee for appropriate
endorsement or for cancellation if it is paid fully.
Section 7.07. Remedies Vested in Trustee. All rights of action
(including without limitation, the right to file proof of claims) under this
Indenture or under any of the Bonds may be enforced by the Trustee without the
possession of any of the Bonds or the production thereof in any trial or other
proceeding relating thereto. Any suit or proceeding instituted by the Trustee
shall be brought in its name as Trustee without the necessity of joining any
Holders as plaintiffs or defendants. Any recovery of judgment shall be for the
benefit of the Agent and the Holders of the outstanding Bonds, subject to the
provisions of this Indenture.
SECTION 7.08. Rights and Remedies of Holders
(a) A Holder shall not have any right to institute any suit,
action or proceeding for the enforcement of this Indenture, for the execution of
any trust hereof, or for the exercise of any other remedy hereunder, unless:
(i) there has occurred and is continuing an Event of
Default of which the Trustee has been notified, as provided in Subsection
8.02(f), or of which it is deemed to have notice under that Subsection,
<PAGE>
(ii) the Holders of at least a majority in aggregate
principal amount of Bonds then outstanding shall have made written request to
the Trustee and shall have afforded the Trustee reasonable opportunity to
proceed to exercise the remedies, rights and powers granted herein or to
institute the suit, action or proceeding in its own name, and shall have offered
indemnity to the Trustee as provided in Sections 8.01 and 8.02, and
(iii) the Trustee thereafter shall have failed or refused
to exercise the remedies, rights and powers granted herein or to institute the
suit, action or proceeding in its own name.
(b) At the option of the Trustee, such notification (or
notice), request, opportunity and offer of indemnity are conditions precedent in
every case, to the institution of any suit, action or proceeding described
above.
(c) No one or more Holders shall have any right to affect,
disturb or prejudice in any manner whatsoever the security or benefit of this
Indenture by its or their action, or to enforce, except in the manner provided
herein, any remedy, right or power hereunder. Any suit, action or proceedings
shall be instituted, had and maintained in the manner provided herein for the
benefit of the Holders of all Bonds outstanding. Notwithstanding the foregoing
provisions of this Section or any other provision of this Indenture, the
obligation of the Issuer shall be absolute and unconditional to pay hereunder,
but solely from the Revenues and other funds pledged under this Indenture, the
principal or redemption price of, and interest on, the Bonds to the respective
Holders thereof on the respective due dates thereof, and nothing herein shall
affect or impair the right of action, which is absolute and unconditional, of
such Holders to enforce such payment; provided that no Holder shall have a right
to draw upon the Letters of Credit.
Section 7.09. Termination of Proceedings. In case the Trustee shall
have proceeded to enforce any remedy, right or power under this Indenture in any
suit, action or proceeding, and the suit, action or proceeding shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee, the Issuer, the Trustee, the Agent and the Holders
shall be restored to their former positions and rights hereunder, respectively,
and all rights, remedies and powers of the Trustee shall continue as if no suit,
action or proceeding had been taken.
Section 7.10. Waivers of Events of Default. Except as hereinafter
provided, at any time, in its discretion, the Trustee, but only with the express
prior consent of the Agent, may (and, upon the written request of the Holders of
a majority in aggregate principal amount of all Bonds outstanding, shall) waive
any Event of Default hereunder and its consequences and annul any corresponding
acceleration of maturity of principal of the Bonds. There shall not be so
waived, however, any Event of Default described in Subsection 7.01(a), (b), (c),
(f), (g) or (h) nor shall any acceleration in connection therewith be annulled,
except with written consent of the Agent (and, in the case of an Event of
Default under Subsection 7.01(g) only, with written notice from the LC Issuers
to the Trustee that the Letters of Credit have been reinstated to their full
stated amounts) and unless at the time of that waiver or annulment payments of
the amounts and satisfaction of the other conditions provided in Section 7.03
for annulment have been made or provision has been made therefor. No waiver
shall extend to any subsequent or other Event of Default or impair any right
consequent thereon.
Section 7.11. Trustee's Right to Appointment of Receiver. The Trustee
shall be entitled as of right to the appointment of a receiver.
<PAGE>
Section 7.12. Trustee's Obligation to Agent Upon Payment of All Amounts
Due Holders. Once the principal of and premium, if any, and interest on all
Bonds issued hereunder have been paid, or provision has been made pursuant to
Article X for payment of the same and any purchase price of Bonds that is
payable pursuant to Article IV, together with the compensation and expenses of
the Trustee and all other sums payable hereunder by the Issuer or the Company,
the Trustee's sole obligation hereunder shall be to assign promptly and turn
over to the Agent, as successor, subrogee or otherwise, (i) all of the Trustee's
right, title and interest under this Indenture, (ii) all balances held hereunder
not required for the payment of the Bonds and such other obligations and (iii)
the Trustee's right, title and interest in, to and under the Lease.
Section 7.13. Agent's Right to Control Proceedings. Notwithstanding any
of the provisions contained in this Indenture, during the Agent Consent Period,
all rights and remedies granted to the Trustee under this Article VII (excepting
rights and remedies with respect to the payment of fees, expenses or indemnity
to the Trustee), and all elective rights of the Holders to direct the Trustee to
exercise any such rights or remedies, shall be exercised and exercisable solely
by the Agent by written notice to the Trustee, the Issuer, the Indexing Agent
and the Remarketing Agent.
(End of Article VII)
<PAGE>
ARTICLE VIII
TRUSTEE, REMARKETING AGENT AND INDEXING AGENT
SECTION 8.01. Trustee's Acceptance and Responsibilities
(a) The Trustee accepts the trusts imposed upon it by this
Indenture, and agrees to observe and perform those trusts, but only upon and
subject to the terms and conditions set forth in this Article, to all of which
the parties hereto and the Holders agree. In its capacity as Trustee hereunder,
the Trustee shall authenticate the Bonds and shall act as Bond registrar,
transfer agent, tender agent and paying agent, all as provided herein.
(b) Prior to the occurrence of a default or an Event of
Default of which the Trustee has been notified, as provided in Subsection
8.02(f), or of which by that Subsection the Trustee is deemed to have notice,
and after the cure or waiver of all defaults or Events of Default which may have
occurred,
(i) the Trustee undertakes to perform only those duties
and obligations which are set forth specifically in this Indenture, and no
duties or obligations shall be implied to the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may rely conclusively, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any provision hereof are
required specifically to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture.
(c) In case a default or an Event of Default has occurred and
is continuing hereunder (of which the Trustee has been notified, or is deemed to
have notice), the Trustee shall exercise those rights and powers vested in it by
this Indenture and shall use the same degree of care and skill in their exercise
as a prudent Person would exercise or use under the circumstances in the conduct
of its own affairs.
(d) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own grossly negligent action, its own
grossly negligent failure to act, or its own willful misconduct, except that
(i) this Subsection shall not be construed to affect the
limitation of the Trustee's duties and obligations provided in Subsection
8.01(b)(i) or the Trustee's right to rely on the truth of statements and the
correctness of opinions as provided in Subsection 8.01(b)(ii);
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by any one of its officers, unless it shall be
established that the Trustee was grossly negligent in ascertaining the pertinent
facts;
<PAGE>
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in principal amount of the
Bonds then outstanding relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; provided that this clause (iv) shall
not relieve the Trustee of its duties to take actions required to be taken under
Section 7.03 and with respect to drawings to be made under the Letters of Credit
and making payments on the Bonds when due.
(e) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
(f) The Trustee accepts and agrees to perform any and all
duties which are imposed upon the Trustee under the Representation Letter.
Section 8.02. Certain Rights and Obligations of Trustee. Except as
otherwise provided in Section 8.01:ligations of Trustee
(a) The Trustee (i) may execute any of the trusts or powers
hereof and perform any of its duties by or through attorneys, agents, receivers
or employees (but shall be answerable therefor only in accordance with the
standard specified above), (ii) shall be entitled to the advice of counsel
concerning all matters of trusts hereof and duties hereunder, and (iii) may pay
reasonable compensation in all cases to all of those attorneys, agents,
receivers and employees reasonably employed by it in connection with the trusts
hereof. The Trustee may act upon the opinion or advice of any attorney (who may
be the attorney or attorneys for the Issuer or the Company) approved by the
Trustee in the exercise of reasonable care. The Trustee shall not be responsible
for any loss or damage resulting from any action taken or omitted to be taken in
good faith in reliance upon that opinion or advice.
(b) Except for its certificate of authentication on the Bonds,
the Trustee shall not be responsible for (i) any recital in this Indenture or in
the Bonds, (ii) the validity, priority, recording, rerecording, filing or
refiling of this Indenture or any Supplemental Indenture, (iii) any instrument
or document of further assurance or collateral assignment, (iv) any financing
statements, amendments thereto or continuation statements, (v) the validity of
the execution by the Issuer of this Indenture, any Supplemental Indenture or
instruments or documents of further assurance, (vi) the sufficiency of the
security for the Bonds issued hereunder or intended to be secured hereby, (vii)
the value of or title to the Leased Property, or insurance of the Leased
Property or collection of insurance moneys, or (viii) the maintenance of the
security hereof. The Trustee shall not be bound to ascertain or inquire as to
the observance or performance of any covenants, agreements or obligations on the
part of the Issuer or the Company under the Lease except as set forth
hereinafter; but the Trustee may require of the Issuer or the Company full
information and advice as to the observance or performance of those covenants,
agreements and obligations. Except as otherwise provided in Section 7.04, the
Trustee shall have no obligation to observe or perform any of the duties of the
Issuer under the Lease.
<PAGE>
(c) The Trustee shall not be accountable for the application
by the Company or any other Person of the proceeds of any Bonds authenticated or
delivered hereunder.
(d) The Trustee may, in the absence of bad faith or gross
negligence on its part, act upon any notice, request, consent, certificate,
order, affidavit, letter, telegram or other paper or document reasonably
believed by it to be genuine and correct and to have been signed or sent by the
proper Person or Persons. Any action taken by the Trustee pursuant to this
Indenture upon the request or authority or consent of any Person who is the
Holder of any Bonds at the time of making the request or giving the authority or
consent, shall be conclusive and binding upon all future Holders of the same
Bond and of Bonds issued in exchange therefor or in place thereof.
(e) As to the existence or nonexistence of any fact for which
the Issuer, the Agent or the Company may be responsible or as to the sufficiency
or validity of any instrument, document, report, paper or proceeding, the
Trustee, in the absence of bad faith or gross negligence on its part, shall be
entitled to rely upon a certificate signed on behalf of the Issuer, the Agent or
the Company by an Authorized Representative or authorized officer thereof, as
applicable, as sufficient evidence of the facts recited therein. Prior to the
occurrence of a default or Event of Default hereunder of which the Trustee has
been notified, as provided in Subsection 8.02(f), or of which by that Subsection
the Trustee is deemed to have notice, the Trustee may accept a similar
certificate to the effect that any particular dealing, transaction or action is
necessary or expedient; provided that the Trustee in its discretion may require
and obtain any further evidence which it deems to be necessary or advisable; and
provided further that the Trustee shall not be bound to secure any further
evidence. The Trustee may accept a certificate of the officer, or an assistant
thereto, having charge of the appropriate records, to the effect that a
resolution has been adopted by the Issuer in the form recited in that
certificate, as conclusive evidence that the resolution has been duly adopted
and is in full force and effect.
(f) The Trustee shall not be required to take notice, and
shall not be deemed to have notice, of any default or Event of Default
hereunder, except Events of Default described in Subsections 7.01(a), (b), (c),
(f), (g) and (h), unless the Trustee shall be notified specifically of the
default or Event of Default in a written instrument or document delivered to it
by the Issuer, the Agent or by the Holders of at least 10% of the aggregate
principal amount of Bonds outstanding. In the absence of delivery of a notice
satisfying those requirements, the Trustee may assume conclusively that there is
no default or Event of Default, except as noted above.
(g) At any reasonable time, the Trustee and its duly
authorized agents, attorneys, experts, engineers, accountants and
representatives (i) may inspect and copy fully all books, papers and records of
the Issuer pertaining to the Leased Property and the Bonds, and (ii) may make
any memoranda from and in regard thereto as the Trustee may desire.
(h) The Trustee shall not be required to give any bond or
surety with respect to the execution of these trusts and powers or otherwise in
respect of the premises.
(i) Notwithstanding anything contained elsewhere in this
Indenture to the contrary, the Trustee may demand any showings, certificates,
reports, opinions, appraisals and other information, and any corporate action
and evidence thereof, in addition to that required by the terms hereof, as a
<PAGE>
condition to the authentication of any Bonds or the taking of any action
whatsoever within the purview of this Indenture, if the Trustee deems it to be
desirable for the purpose of establishing the right of the Issuer to the
authentication of any Bonds or the right of any Person to the taking of any
other action by the Trustee; provided that the Trustee shall not be required to
make any such demand.
(j) Before taking action hereunder pursuant to Section 8.04 or
Article VII (with the exception of any action required to be taken under Section
7.03 and except with respect to drawings made under the Letters of Credit and
with respect to payment on the Bonds when due), the Trustee may require that a
satisfactory indemnity bond be furnished to it for the reimbursement of all
expenses which it may incur and to protect it against all liability by reason of
any action so taken, except liability which is adjudicated to have resulted from
its gross negligence or willful misconduct; provided that no such bond shall be
required from the Issuer. The Trustee may take action without that indemnity,
and in that case, the Issuer shall cause the Company to reimburse the Trustee
for all of the Trustee's expenses pursuant to Section 8.03. The Trustee shall
not be required to expend its own funds for the enforcement of this Indenture,
absent such indemnity.
(k) Unless otherwise provided herein, all moneys received by
the Trustee under this Indenture shall be held in trust for the purposes for
which those moneys were received, until those moneys are used, applied or
invested as provided herein; provided that those moneys need not be segregated
from other moneys, except to the extent required by this Indenture or by law.
The Trustee shall not have any liability for interest on any moneys received
hereunder, except to the extent expressly provided herein or agreed with the
Issuer or the Company.
(l) Any resolution of the Issuer, and any opinions,
certificates and other instruments and documents for which provision is made in
this Indenture, may be accepted by the Trustee, in the absence of bad faith on
its part, as conclusive evidence of the facts and conclusions stated therein and
shall be full warrant, protection and authority to the Trustee for its actions
taken hereunder.
(m) The Trustee may construe any ambiguous or inconsistent
provisions of this Indenture in such manner as it deems reasonable, and any such
construction of such provisions by the Trustee shall be binding upon the Issuer,
the Company, the Agent and the Holders.
(n) The permissive right of the Trustee to do any thing under
this Indenture shall not be construed as a duty.
(o) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder.
(p) The Trustee shall not be under any obligation to effect or
maintain insurance or to renew any policies of insurance or to inquire as to the
sufficiency of any policies of insurance carried by the Company, or to report,
or make or file claims or proof of loss for, any loss or damage insured against
or which may occur, or, to keep itself informed or advised as to the payment of
any taxes or assessments, or to require any such payment to be made.
<PAGE>
(q) The Trustee shall not be personally liable for any claims
by or on behalf of any person, firm, corporation or other legal entity arising
from the conduct or management of, or from any work or thing done on, the
Project, and shall have no affirmative duty with respect to compliance of the
Project under state or federal laws pertaining to the transport, storage,
treatment of disposal of pollutants, contaminants, waste or hazardous materials,
or regulations, permits or licenses issued under such laws.
SECTION 8.03. Fees, Charges and Expenses of Trustee
(a) The Trustee shall be entitled to payment or reimbursement
by the Company, as provided in the Lease, for reasonable fees for the Ordinary
Services of the Trustee and its agents rendered hereunder and for all advances,
counsel fees and other Ordinary Expenses reasonably and necessarily paid or
incurred by it and its agents in connection with the provision of Ordinary
Services. For purposes hereof, fees for Ordinary Services provided for by their
respective standard fee schedule shall be considered reasonable. In the event
that it should become necessary for any of them to perform Extraordinary
Services, they shall be entitled to reasonable extra compensation therefor and
to reimbursement for reasonable and necessary Extraordinary Expenses incurred in
connection therewith. The Trustee shall not be entitled to compensation or
reimbursement for Extraordinary Services or Extraordinary Expenses occasioned by
its gross negligence or willful misconduct.
(b) The fees for the Trustee's Ordinary Services and Ordinary
Expenses and Extraordinary Services and Extraordinary Expenses shall be entitled
to payment and reimbursement only from (i) the Project Fund, (ii) payments made
by the Company pursuant to the Lease, or (iii) from other moneys available
therefor; provided that following the occurrence of an Event of Default the
Trustee shall have a first priority lien on all of the Trust Estate, excepting
only drawings on the Letters of Credit, for the payment of such fees and
expenses. Any amounts payable to the Trustee pursuant to this Section shall be
payable upon demand and shall bear interest from five Business Days following
the date of demand therefor at the interest rate then in effect for the Bonds.
The initial or acceptance fees of the Trustee and the fees, charges and expenses
of the Trustee and its agents described above, may be paid by the Trustee from
the Project Fund as and when due to the extent that those fees, charges and
expenses become due prior to the Final Project Completion Date.
Section 8.04. Intervention by Trustee. The Trustee may intervene on
behalf of the Holders, and shall intervene if requested to do so in writing by
the Holders of at least 25% of the aggregate principal amount of Bonds
outstanding, in any judicial proceeding to which the Issuer or the Company is a
party and which in the opinion of the Trustee and its counsel has a substantial
bearing on the interests of Holders of the Bonds, provided, however, that at all
times during the Agent Consent Period, the Trustee shall take such actions as,
and only as, directed by the Agent in writing. The rights and obligations of the
Trustee under this Section are subject to the approval of that intervention by a
court of competent jurisdiction. The Trustee may require that a satisfactory
indemnity bond be provided to it in accordance with Sections 8.01 and 8.02
before it takes action hereunder.
SECTION 8.05. Successor Trustee
(a) Anything herein to the contrary notwithstanding:
(i) any corporation or association (A) into which the
Trustee may be converted or merged, (B) with which the Trustee or any successor
to it may be consolidated, or (C) to which the Trustee may sell or transfer its
assets and trust business as a whole or substantially as a whole, or any
<PAGE>
corporation or association resulting from any such conversion, merger,
consolidation, sale or transfer, ipso facto, shall be and become successor
Trustee hereunder and shall be vested with all of the title to the whole
property or trust estate hereunder; and
(ii) that corporation or association, as successor
Trustee, shall be vested further, as was its predecessor, with each and every
trust, property, remedy, power, right, duty, obligation, discretion, privilege,
claim, demand, cause of action, immunity, estate, title, interest and lien
expressed or intended by this Indenture to be exercised by, vested in or
conveyed to the Trustee, without the execution or filing of any instrument or
document or any further act on the part of any of the parties hereto.
(b) Any successor Trustee, however, (i) shall be a trust
company or a bank having the powers of a trust company, (ii) shall be in good
standing within the State of Georgia, (iii) shall be duly authorized to exercise
trust powers within the State of Georgia, and (iv) shall have a reported capital
and surplus of not less than $50,000,000 and a rating assigned to its long-term
unsecured debt by Moody's Investors Service, Inc. at least equal to "Baa3" (if
the Bonds are then rated by Moody's Investors Service, Inc.) and by Standard &
Poor's Corporation at least equal to "BBB-" (if the Bonds are then rated by
Standard & Poor's Corporation) unless the Issuer receives written confirmation
from the respective Rating Agencies that the appointment of a particular
successor trustee not meeting such rating requirement will not result in a
reduction or withdrawal of its rating of the Bonds.
Section 8.06. Resignation of Trustee. The Trustee may resign at any
time from the trusts created hereby by giving written notice of the resignation
to the Issuer, the Company, the Agent, the Indexing Agent and the Remarketing
Agent and by mailing written notice of the resignation to the Holders as their
names and addresses appear on the Register at the close of business 15 days
prior to the mailing. The resignation shall take effect only upon the
appointment of a successor Trustee.
SECTION 8.07. Removal of Trustee
(a) The Trustee may be removed at any time by an instrument or
document or concurrent instruments or documents delivered to the Trustee at
least five Business Days prior to the date of removal, with copies thereof
mailed to the Issuer, the Company, the Agent, the Indexing Agent and the
Remarketing Agent, and signed by or on behalf of the Holders of not less than a
majority in aggregate principal amount of the Bonds outstanding.
(b) The Trustee also may be removed at any time for any breach
of trust or for acting or proceeding in violation of, or for failing to act or
proceed in accordance with, any provision of this Indenture with respect to the
duties and obligations of the Trustee by any court of competent jurisdiction
upon the application of the Issuer or the Holders of not less than 25% in
aggregate principal amount of the Bonds outstanding.
(c) The removal of the Trustee pursuant to this Section shall
take effect only upon the appointment of a successor Trustee.
SECTION 8.08. Appointment of Successor Trustee
(a) If (i) the Trustee shall resign, shall be removed, shall
be dissolved, or shall become otherwise incapable of acting hereunder, (ii) the
Trustee shall be taken under the control of any public agency, or (iii) a
receiver shall be appointed for the Trustee by a court, then a successor Trustee
<PAGE>
shall be appointed by the Issuer, with the written consent of the Company and
the Agent; provided that if a successor Trustee is not so appointed within 10
days after (A) a notice of resignation or an instrument or document of removal
is received by the Issuer, as provided in Sections 8.06 and 8.07, respectively,
or (B) the Trustee is dissolved, taken under control, becomes otherwise
incapable of acting or a receiver is appointed, in each case, as provided above,
then, so long as the Issuer shall not have appointed a successor Trustee, the
Holders of a majority in aggregate principal amount of Bonds outstanding may
designate a successor Trustee by an instrument or document or concurrent
instruments or documents in writing signed by or on behalf of those Holders. If
no appointment of a successor Trustee shall be made pursuant to the foregoing
provisions of this Section, the Holder of any Bond outstanding or any retiring
Trustee may apply to any court of competent jurisdiction to appoint a successor
Trustee. Such court may thereupon, after such notice, if any, as such court may
deem proper and prescribe, appoint a successor Trustee.
(b) Every successor Trustee appointed pursuant to this Section
(i) shall be a trust company or a bank having the powers of a trust company,
(ii) shall be in good standing within the State of New York, (iii) shall be duly
authorized to exercise trust powers within the State of New York, (iv) shall
have a reported capital and surplus of not less than $50,000,000 and a rating
assigned to its long-term unsecured debt by Moody's Investors Service, Inc. at
least equal to "Baa3" (if the Bonds are then rated by Moody's Investors Service,
Inc.) and by Standard & Poor's Corporation at least equal to "BBB-" (if the
Bonds are then rated by Standard & Poor's Corporation) unless the Issuer
receives written confirmation from the Rating Agencies that the appointment of a
particular successor trustee not meeting such rating requirement will not result
in a reduction or withdrawal of its rating of the Bonds, and (vi) shall be
willing to accept the trusteeship under the terms and conditions of this
Indenture.
(c) Every successor Trustee appointed hereunder shall execute
and acknowledge, and shall deliver to its predecessor, the Issuer, the Company,
the Agent, the Indexing Agent and the Remarketing Agent, an instrument or
document in writing accepting the appointment. Thereupon, without any further
act, the successor shall become vested with all of the trusts, properties,
claims, demands, causes of action, immunities, estates, titles, interests and
liens of its predecessor. Upon the written request of its successor, the Issuer,
the Company, the Agent, the Indexing Agent or the Remarketing Agent, the
predecessor Trustee (i) shall execute and deliver an instrument or document
transferring to its successor all of the trusts, properties, remedies, powers,
rights, duties, obligations, discretions, privileges, claims, demands, causes of
action, immunities, estates, titles, interests and liens of the predecessor
Trustee hereunder, and (ii) shall take any other action necessary to duly
assign, transfer and deliver to its successor all property (including, without
limitation, all securities and moneys and the Letters of Credit) held by it as
Trustee. Should any instrument or document in writing from the Issuer be
requested by any successor Trustee for vesting and conveying more fully and
certainly in and to that successor the trusts, properties, remedies, powers,
rights, duties, obligations, discretions, privileges, claims, demands, causes of
action, immunities, estates, titles, interests and liens vested or conveyed or
intended to be vested or conveyed hereby in or to the predecessor Trustee, the
Issuer shall execute, acknowledge and deliver that instrument or document.
<PAGE>
(d) In the event of a change in the Trustee, the predecessor
Trustee shall cease to be custodian of any moneys which it may hold pursuant to
this Indenture and shall cease to be Bond registrar, transfer agent, tender
agent, authenticating agent and paying agent for the Bonds. The successor
Trustee shall become custodian for moneys held under this Indenture and Bond
registrar, transfer agent, tender agent, authenticating agent and paying agent
as and to the extent provided herein.
Section 8.09. Adoption of Authentication. In case any of the Bonds
shall have been authenticated, but shall not have been delivered, any successor
Trustee may adopt the certificate of authentication of any predecessor Trustee
and may deliver those Bonds so authenticated as provided herein. In case any
Bonds shall not have been authenticated, any successor Trustee may authenticate
those Bonds either in the name of any predecessor or in its own name. In all
cases, the certificate of authentication shall have the same force and effect as
provided in the Bonds or in this Indenture with respect to the certificate of
authentication of the predecessor Trustee.
SECTION 8.10. Designation and Succession of Authenticating Agent, Bond
Registrar, Transfer Agent and Paying Agent
(a) The Trustee may, with the consent of the Issuer, appoint
an agent or agents, with power to act on the Trustee's behalf and subject to the
Trustee's direction in the authentication, registration, transfer and exchange
and tender of Bonds and payment of Debt Service under the provisions of this
Indenture; provided that any tender agent or paying agent so appointed shall
have and maintain a rating assigned to its long-term unsecured debt by Moody's
Investors Service, Inc. at least equal to "Baa3" (if the Bonds are then rated by
Moody's Investors Service, Inc.) and by Standard & Poor's Corporation at least
equal to "BBB-" (if the Bonds are then rated by Standard & Poor's Corporation)
unless the Issuer receives written confirmation from the Rating Agencies that
the appointment of a tender agent or paying agent not meeting such rating
requirement will not result in a reduction or withdrawal of its rating of the
Bonds; and provided further, however, that the Trustee may serve as tender
agent, paying agent or any other such agent pursuant to this Indenture. For all
purposes of this Indenture, the authentication, registration and delivery of
Bonds by any such agent pursuant to this Section shall be deemed to be
authentication, registration and delivery of those Bonds by the Trustee.
(b) Any corporation or association with or into which any such
agent may be merged or converted or with which it may be consolidated, or any
corporation or association resulting from any merger, consolidation or
conversion to which any such agent shall be a party, or any corporation or
association succeeding to the trust business of any such agent, shall be the
successor of that agent hereunder, if that successor corporation or association
is otherwise eligible hereunder, without the execution or filing of any paper or
any further act on the part of the parties hereto or the such agent or such
successor corporation.
(c) Any such agent may at any time resign by giving written
notice of resignation to the Trustee and to the Issuer, the Company, the
Indexing Agent and the Remarketing Agent. The Trustee may at any time terminate
the agency of any such agent by giving written notice of termination to such
agent and to the Issuer, the Company, the Indexing Agent and the Remarketing
Agent. Upon receiving such a notice of resignation or upon such a termination,
<PAGE>
or in the case at any time any such agent shall cease to be eligible under this
Section, the Trustee may appoint a successor agent. The Trustee shall give
written notice of appointment of a successor agent to the Issuer, the Company,
the Indexing Agent and the Remarketing Agent and shall mail, within 10 days
after that appointment, notice thereof to all Holders as their names and
addresses appear on the Register on the date of that appointment.
(d) The Trustee shall pay to any such agent from time to time
reasonable compensation for its services, and the Trustee shall be entitled to
be reimbursed for such payments as Ordinary Expenses, subject to Section 8.03.
(e) The pertinent provisions of Subsections 8.02(b), (c), (d),
(h) and (i) shall be applicable to any such agent.
Section 8.11. Dealing in Bonds. The Trustee, the Agent, the Indexing
Agent and the Remarketing Agent, their respective affiliates, and any directors,
officers, employees or agents thereof, in good faith, may become the owners of
Bonds secured hereby with the same rights which it or they would have hereunder
if the Trustee, the Agent, the Indexing Agent or the Remarketing Agent did not
serve in those capacities. The Trustee may serve as, or be affiliated with, the
Remarketing Agent, the Indexing Agent or the Agent. The Trustee may also engage
in or be interested in any financial or other transaction with the Issuer, the
Company or any related party.
Section 8.12. Representations, Agreements and Covenants of Trustee. The
Trustee hereby represents and covenants that it is a national banking
association duly organized and validly existing under the laws of the United
States of America, in good standing and duly authorized to exercise corporate
trust powers in the State of Georgia, that it will take such action, if any, as
is necessary to remain in good standing and duly authorized to exercise
corporate trust powers in the State of Georgia.
SECTION 8.13. Appointment of Remarketing Agent
(a) The Issuer shall, with the consent of the Company, appoint
the Remarketing Agent for the Bonds, subject to the conditions set forth in
Section 8.14. The Remarketing Agent shall designate to the Trustee its Principal
Office and signify its acceptance of the duties and obligations imposed upon it
hereunder by a written instrument of acceptance delivered to the Issuer, the
Company, the Indexing Agent and the Trustee under which the Remarketing Agent
will agree, particularly:
(i) to direct all Holders of Bonds which are to be
tendered pursuant to Article IV hereof to deliver such Bonds to the Trustee;
(ii) to direct all Persons purchasing such Bonds to direct
payment therefor to the Trustee to be applied as provided in Section 4.03; and
(iii) to keep such books and records as shall be
consistent with prudent industry practice and to make such books and records
available for inspection by the Issuer, the Trustee, the Company and the Agent
at all reasonable times.
(b) In addition, the Remarketing Agent will enter into the
Remarketing Agreement with the Company in form and substance mutually
satisfactory to them. The Remarketing Agent shall be entitled to advice of legal
counsel on any matter relating to the Remarketing Agent's obligations hereunder
and shall be entitled to act upon the opinion of such counsel in the exercise of
reasonable care in fulfilling such obligations.
<PAGE>
SECTION 8.14. Qualifications of Remarketing Agent
(a) The Remarketing Agent (other than the original Remarketing
Agent identified herein) shall be a national banking association or a bank or
trust company or a member of the National Association of Securities Dealers,
Inc., authorized by law to perform all the duties imposed upon it by this
Indenture. The Remarketing Agent may at any time resign and be discharged of the
duties and obligations created by this Indenture by giving at least 30 days'
prior written notice by registered or certified mail to the Trustee, the Issuer,
the Indexing Agent, the Company and the Agent. The Remarketing Agent may be
removed at any time by the Issuer or the Company, with the consent of the other
and, during the Agent Consent Period, the Agent upon 30 days' notice which shall
be in writing, signed by the Issuer and delivered to the Remarketing Agent, the
Indexing Agent, the Company, the Trustee and the Agent.
(b) In the event of the resignation or removal of the
Remarketing Agent, the Issuer, with the consent of the Company and the Agent,
shall appoint a successor Remarketing Agent meeting the qualifications set forth
in this Section and the Remarketing Agent shall pay over, assign and deliver any
moneys and Bonds held by it in such capacity to its successor or, if there be no
successor, to the Trustee as hereinafter provided.
(c) In the event that the Remarketing Agent shall resign or be
removed, or be dissolved, or if the property or affairs of the Remarketing Agent
shall be taken under the control of any state or federal court or administrative
body because of bankruptcy or insolvency, or for any other reason, and the
Issuer shall not have appointed its successor as Remarketing Agent, the Trustee,
notwithstanding the provisions of Subsection 8.14(a) shall ipso facto be deemed
to be the Remarketing Agent for all purposes of this Indenture until the
appointment by the Issuer of the successor Remarketing Agent; provided that the
Trustee, in its capacity as Remarketing Agent, shall not be required to remarket
Bonds nor to establish the Weekly Rate or the Term Rate.
Section 8.15. Compensation and Expenses of Remarketing Agent. The terms
of the Company's obligation to pay reasonable compensation to and the reasonable
expenses of the Remarketing Agent may be set forth in the Remarketing Agreement.
SECTION 8.16. Appointment of Indexing Agent
(a) The Issuer shall, with the consent of the Company, appoint
the Indexing Agent for the Bonds, subject to the conditions set forth in Section
8.18. The Indexing Agent shall designate to the Trustee its Principal Office and
signify its acceptance of the duties and obligations imposed upon it hereunder
by a written instrument of acceptance delivered to the Issuer, the Company, the
Remarketing Agent and the Trustee under which the Indexing Agent will agree,
particularly:
(i) to determine the Weekly Rate and the Term Rate in
accordance with Sections 2.03 and 2.04 of this Indenture, and to give notice to
the Trustee and the Remarketing Agent of the Weekly Rate, and to the Trustee,
the Remarketing Agent, the Issuer, the Company and the Agent of the Term Rate,
on the date of the determination thereof; and
(ii) to keep such books and records as shall be consistent
with prudent industry practice and to make such books and records available for
inspection by the Issuer, the Trustee, the Remarketing Agent, the Company and
the Agent at all reasonable times.
<PAGE>
(b) In addition, the Indexing Agent will enter into the
Indexing Agreement with the Company in form and substance mutually satisfactory
to them. The Indexing Agent shall be entitled to advice of legal counsel on any
matter relating to the Indexing Agent's obligations hereunder and shall be
entitled to act upon the opinion of such counsel in the exercise of reasonable
care in fulfilling such obligations.
SECTION 8.17. Qualifications of Indexing Agent
(a) The Indexing Agent shall be an investment banking firm, a
firm of financial consultants, a national banking association or a bank or trust
company, authorized by law to perform all the duties imposed upon it by this
Indenture and the Indexing Agreement. The Indexing Agent may at any time resign
and be discharged of the duties and obligations created by this Indenture by
giving at least 30 days' prior written notice by registered or certified mail to
the Trustee, the Issuer, the Remarketing Agent, the Company and the Agent. The
Indexing Agent may be removed at any time by the Issuer or the Company, with the
consent of the other and, during the Agent Consent Period, the Agent upon 30
days' notice which shall be in writing, signed by the Issuer and delivered to
the Indexing Agent, the Remarketing Agent, the Company, the Trustee and the
Agent.
(b) In the event of the resignation or removal of the Indexing
Agent, the Issuer, with the consent of the Company and, during the Agent Consent
Period, the Agent, shall appoint a successor Indexing Agent meeting the
qualifications set forth in this Section.
(c) In the event that the Indexing Agent shall resign or be
removed, or be dissolved, or if the property or affairs of the Indexing Agent
shall be taken under the control of any state or federal court or administrative
body because of bankruptcy or insolvency, or for any other reason, and the
Issuer shall not have appointed its successor as Indexing Agent, the Trustee,
notwithstanding the provisions of Subsection 8.17(a), shall ipso facto be deemed
to be the Indexing Agent for all purposes of this Indenture until the
appointment by the Issuer of the successor Indexing Agent; provided that the
Trustee, in its capacity as Indexing Agent, shall not be required to establish
the Weekly Rate or the Term Rate.
Section 8.18. Compensation and Expenses of Indexing Agent. The terms of
the Company's obligation to pay reasonable compensation to and the reasonable
expenses of the Indexing Agent may be set forth in the Indexing Agreement.
(End of Article VIII)
<PAGE>
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS
Section 9.01. Supplemental Indentures Not Requiring Consent of Holders.
Without the consent of or notice to any Holders, the Issuer and the Trustee may
enter into indentures supplemental to this Indenture for any one or more of the
following purposes:
(a) To cure any ambiguity, inconsistency or formal defect or
omission in this Indenture;
(b) To grant to or confer upon the Trustee for the benefit of
the Holders any additional rights, remedies, powers or authority;
(c) To authorize the issuance of a Series of Additional Bonds
or Refunding Bonds;
(d) To confirm any pledge of or lien on the Revenues, to
assign additional revenues under this Indenture or to accept additional security
or instruments of further assurance;
(e) To add to the covenants, agreements and obligations of the
Issuer under this Indenture, other covenants, agreements and obligations to be
observed for the protection of the Holders, or to surrender or limit any right,
power or authority reserved to or conferred upon the Issuer in this Indenture;
(f) To permit the use of a book entry system to identify the
owner of an interest in an obligation issued by the Issuer under this Indenture,
whether that obligation was formerly, or could be, evidenced by a tangible
security;
(g) To permit the Trustee to comply with any obligations
imposed upon it by law;
(h) To specify further the duties and responsibilities of, and
to define further the relationship among, the Trustee, the Indexing Agent and
the Remarketing Agent;
(i) To achieve compliance of this Indenture with any
applicable federal securities or tax laws;
(j) To evidence the appointment of a new Remarketing Agent or
Indexing Agent;
(k) To provide for Alternate Letters of Credit or any other
credit enhancement permitted by the terms of this Indenture;
(l) To make any amendments required to secure a rating on the
Bonds from a Rating Agency equal to the rating of the Agent's unsecured
indebtedness;
(m) To implement a conversion to a Term Mode Rate; or
(n) To permit any other amendment which is not materially
adverse to the interests of the Trustee or the Holders.
<PAGE>
Before the Issuer and the Trustee shall enter into any Supplemental Indenture
pursuant to this Section, there shall have been delivered to the Trustee and the
Issuer an opinion of counsel to the Issuer to the effect that such Supplemental
Indenture is authorized or permitted by this Indenture, and will, upon the
execution and delivery thereof, be valid and binding upon the Issuer in
accordance with its terms.
Section 9.02. Supplemental Indentures Requiring Consent of Holders.
Subject to Section 9.09, and in addition to the Supplemental Indentures
permitted by Section 9.01, this Indenture may be amended or supplemented from
time to time by a Supplemental Indenture consented to by the Company and
approved by Holders of a majority in aggregate principal amount of the Bonds
then outstanding, except that, other than as permitted by Section 9.01, this
Indenture may not be amended with respect to (1) the principal or redemption
price or interest payable upon any Bonds, (2) the Interest Payment Dates, the
dates of maturity or the redemption or purchase provisions of any Bonds, and (3)
this Article. This Indenture may be amended with respect to the matters
enumerated in clauses (1) to (3) of the preceding sentence only with the
unanimous consent of all Holders. Before the Issuer and the Trustee may enter
into such Supplemental Indenture, there shall have first been delivered to the
Trustee (a) the required consents, in writing, of Holders and (b) an opinion of
counsel to the Issuer to the effect that such Supplemental Indenture is
authorized or permitted by this Indenture, and will, upon the execution and
delivery thereof, be valid and binding upon the Issuer in accordance with its
terms.
Section 9.03. Consent of Company. Anything contained herein to the
contrary notwithstanding, a Supplemental Indenture executed and delivered in
accordance with this Article which affects any rights of the Company or directly
or indirectly imposes any additional obligations or liabilities on the Company
shall not become effective unless and until the Company shall have consented in
writing to the execution and delivery of that Supplemental Indenture.
Section 9.04. Authorization to Trustee; Effect of Supplement. The
Trustee is authorized to join with the Issuer in the execution and delivery of
any Supplemental Indenture in accordance with this Article and to make the
further agreements and stipulations which may be contained therein. Thereafter,
(a) such Supplemental Indenture shall form a part of this Indenture; (b) all
terms and conditions contained in that Supplemental Indenture as to any
provision authorized to be contained therein shall be deemed to be a part of the
terms and conditions of this Indenture for any and all purposes; (c) this
Indenture shall be deemed to be modified and amended in accordance with the
Supplemental Indenture; and (d) the respective rights, duties and obligations
under this Indenture of the Issuer, the Company, the Trustee, the Remarketing
Agent, the Indexing Agent, the Agent and all Holders of Bonds outstanding shall
be determined, exercised and enforced hereunder in a manner which is subject in
all respects to those modifications and amendments made by the Supplemental
Indenture. The Trustee shall not be required to execute any Supplemental
Indenture containing provisions adverse to the Trustee.
Section 9.05 Modification by Unanimous Consent. Notwithstanding
anything contained elsewhere in this Indenture, the rights and obligations of
the Issuer and of the Holders, and the terms and provisions of the Bonds and
this Indenture or any Supplemental Indenture, may be modified or altered in any
respect with the consent of (i) the Issuer, (ii) the Holders of all of the Bonds
outstanding, (iii) the Agent and (iv) the Company.
<PAGE>
Section 9.06. Amendment of Lease. Subject to Section 9.09, if the
Issuer and the Company propose to amend the Lease, the Trustee shall consent
thereto; provided that if such proposal would amend the Lease in such a way as
would materially adversely affect the interests of the Holders, the Trustee
shall notify the Holders of the proposed amendment and may consent thereto with
the consent of Holders of a majority in aggregate principal amount of the Bonds
then Outstanding, except that no amendment materially adversely affecting the
interests of the Holders shall be consented to by the Trustee without the
unanimous consent of all Holders if such materially adverse amendment would (1)
decrease the amounts payable under the Lease constituting Revenues, (2) change
the date of payment or prepayment provisions under the Lease, or (3) change any
provisions with respect to amendment of the Lease. Before the Issuer shall enter
into, and the Trustee shall consent to, any modification, alteration, amendment
or supplement to the Lease pursuant to this Section, there shall have been
delivered to the Issuer and the Trustee an opinion of counsel to the Issuer to
the effect that such amendment is authorized or permitted by this Indenture.
Section 9.07. Amendment of Letters of Credit. If the LC Issuers propose
to amend the Letters of Credit, the Trustee shall consent thereto, provided that
(a) if such proposal would amend the Letters of Credit in such a way as would
materially adversely affect the interests of the Holders, the Trustee shall
notify the Holders and the Rating Agencies (if the Bonds are then rated by a
Rating Agency) of the proposed amendment and may consent thereto only with (i)
the prior written consent of Holders of a majority in aggregate principal amount
of the Bonds then outstanding and (ii) the confirmation by such Rating Agencies
that such amendment will not result in a withdrawal or reduction of their rating
of the Bonds, and (b) the Trustee shall not, without the unanimous consent of
all Holders, consent to any amendment materially adversely affecting the
interests of the Holders which would decrease or delay the amounts payable under
the Letters of Credit in respect of outstanding Bonds on any Interest Payment
Date or on any date of redemption, acceleration, payment at maturity or purchase
of the Bonds, or advance the Expiration Date of the Letters of Credit to an
earlier date. No consent of the Holders shall be required for amendments to the
Letters of Credit which are provided for or contemplated by this Indenture.
Section 9.08. Trustee Authorized to Join in Supplements and Amendments;
Reliance on Counsel. The Trustee is authorized to join with the Issuer in the
execution and delivery of any Supplemental Indenture or amendment permitted by
this Article and in so doing shall be fully protected by an opinion of counsel
that such Supplemental Indenture or amendment is so permitted.
Section 9.09. Consent of Agent. Notwithstanding anything herein
contained, during the Agent Consent Period, no supplement or amendment or other
modification shall be made to the Indenture without the prior written consent of
the Agent.
Section 9.10. Notice to Rating Agencies. The Trustee shall promptly
notify the Rating Agencies (if the Bonds are then rated by a Rating Agency) of
any material supplement or amendment to this Indenture, the Lease, the
Remarketing Agreement, the Letters of Credit or the Reimbursement Agreement.
(End of Article IX)
<PAGE>
ARTICLE X
DEFEASANCE
Section 10.01 Defeasance. When the principal of, and premium (if any)
and interest on, all Bonds issued hereunder have been paid, or provision has
been made for payment of the same and any tender purchase price which may become
payable pursuant to Article IV, together with the compensation and expenses of
the Trustee and all other sums payable hereunder by the Issuer or the Company,
the right, title and interest of the Trustee in and to the Trust Estate shall
thereupon cease and the Trustee, on demand of the Issuer or the Company, shall
release this Indenture and shall execute such documents to evidence such release
as may be reasonably required by the Issuer or the Company and shall turn over
to the Company or to such person, body or authority as may be entitled to
receive the same all balances then held by it hereunder not required for the
payment of the Bonds and such other sums and shall surrender the Letters of
Credit to the Agent for the account of the LC Issuers; provided that (a) any
proceeds of the Letters of Credit not required for payment of the Bonds shall be
turned over to the LC Issuers and (b) in the event there has been a drawing
under the Letters of Credit for which the LC Issuers have not been fully
reimbursed pursuant to the Reimbursement Agreement or the Reimbursement Notes or
any other obligations are then due and owing to the Agent under the
Reimbursement Agreement, the Trustee shall assign and turn over to the Agent, as
successor, subrogee or otherwise, all of the Trustee's right, title and interest
under this Indenture, all balances held hereunder not required for the payment
of the Bonds and such other sums and the Trustee's right, title and interest in,
to and under the Lease and any other property comprising the Trust Estate. If
payment or provision therefor is made with respect to less than all of the
Bonds, the particular Bonds (or portions thereof) for which provision for
payment shall have been considered made shall be selected by lot or by such
other method as the Trustee deems fair and appropriate, and thereupon the
Trustee shall take similar action for the release of this Indenture with respect
to such Bonds.
SECTION 10.02. Provision for Payment
(a) Provision for the payment of Bonds shall be deemed to have
been made when the Trustee holds in the Bond Fund (1) cash in an amount
sufficient to make all payments (including principal, premium, if any, interest
and tender purchase price payments, if any) specified in Section 10.01 with
respect to such Bonds, or (2) noncallable, direct obligations issued by the
United States of America, maturing on or before the date or dates when the
payments specified above shall become due, the principal amount of which and the
interest thereon, when due, is or will be, in the aggregate, sufficient without
reinvestment to make all such payments, or (3) any combination of cash and such
obligations the amounts of which and interest thereon, when due, are or will be,
in the aggregate, sufficient without reinvestment to make all such payments;
provided that (i) such amount on deposit shall be deemed sufficient only if (A)
while the Bonds bear interest at a Weekly Rate, it provides for payment of
interest at the Maximum Rate and the Issuer shall have surrendered any power
hereunder to thereafter change the Maximum Rate, or (B) while the Bonds bear
interest at a Term Rate, it provides for payment of interest at such Term Rate
and the Bonds have been irrevocably called or designated for redemption in
accordance with Subsection 10.02(c) on or before the end of the Term Rate Period
for which such Term Rate has been set and (ii) provision for payment of Bonds
shall be deemed to be made only if (A) the Trustee holds in the Bond Fund cash
constituting Available Moneys and/or such obligations purchased with Available
Moneys for payment of such Bonds pursuant to Section 5.04 in amounts sufficient
to make all payments specified above with respect to such Bonds, as verified by
<PAGE>
an accountant's certification in form and by an accountant acceptable to the
Trustee and the Rating Agencies, and (B) in the case of Bonds in the Weekly
Mode, the Bonds have been called for redemption on a date not more than 60 days
from the date provision for payment is being made pursuant to this Section and,
in determining the sufficiency of amounts held to make payments with respect to
the Bonds, there shall be excluded any and all interest expected to be earned on
obligations held by the Trustee.
(b) Neither the moneys nor the obligations deposited with the
Trustee pursuant to this Article shall be withdrawn or used for any purpose
other than, and such obligations and moneys shall be segregated and held in
trust for, the payment of the principal or redemption price of, premium, if any,
on and interest on, the Bonds (or portions thereof), or for the payment of the
purchase price of such Bonds in accordance with Article IV. While the Bonds are
in the Weekly Mode, such moneys, if not then needed for such purpose, shall, but
only to the extent practicable, be invested and reinvested in direct obligations
issued by the United States of America maturing on or prior to the earlier of
(i) the date moneys may be required for the purchase of Bonds pursuant to
Article IV and (ii) the Interest Payment Date next succeeding the date of
investment or reinvestment.
(c) Whenever moneys or obligations shall be deposited with the
Trustee for the payment or redemption of Bonds more than 60 days prior to the
date that such Bonds are to mature or be redeemed, the Trustee shall mail a
notice to the Holders of Bonds for the payment of which such moneys or
obligations are being held at their registered addresses stating that such
moneys or obligations have been deposited. Such notice shall also be sent by the
Trustee to the Rating Agencies. Notwithstanding the foregoing, no delivery to
the Trustee under this Section shall be deemed a payment of any Bonds which are
to be redeemed prior to their stated maturity until such Bonds shall have been
irrevocably called or designated for redemption on a date thereafter on which
such Bonds may be redeemed in accordance with the provisions of this Indenture
and proper notice of such redemption shall have been given in accordance with
Article III or the Issuer shall have given the Trustee, in form satisfactory to
the Trustee, irrevocable instructions to give, in the manner and at the times
prescribed by Article III, notice of redemption.
(d) Notwithstanding anything to the contrary contained herein,
if the principal or purchase price of the Bonds, together with the premium (if
any) thereon and all interest accruing thereon, has been paid or provision
therefor made in accordance with this Section 10.02 at any time during which (i)
the Bonds bear interest at a Weekly Rate and (ii) the Bonds are rated by one or
more Rating Agencies, then no release of this Indenture shall be effective
pursuant to this Article X without the written confirmation of each such Rating
Agency that such release will not cause such Rating Agency to withdraw or lower
its rating on the Bonds.
Section 10.03. Deposit of Funds for Payment of Bonds. If the principal
or purchase price of any Bonds becoming due, either at maturity or by call for
redemption or tender or otherwise, together with the premium (if any) thereon
and all interest accruing thereon to the due date, has been paid or provision
therefor made in accordance with Section 10.02, all interest on such Bonds shall
cease to accrue on the due date and all liability of the Issuer with respect to
such Bonds shall likewise cease, except as hereinafter provided. Thereafter, (a)
any surplus balance held by the Trustee with respect to such Bonds over the
principal of, premium (if any) on and actual interest accrued on such Bonds
<PAGE>
shall be paid to the Agent as a return of excess funds drawn under the Letters
of Credit (or, if the Rating Agencies shall have confirmed their ratings of the
Bonds in connection with the provision for payment of the Bonds, such surplus
shall be paid as may otherwise be approved by the Rating Agencies in connection
with such confirmation) and (b) the Holders of such Bonds shall be restricted
exclusively to the funds so deposited for any claim of whatsoever nature with
respect to such Bonds, and the Trustee shall hold such funds in trust for such
Holders uninvested and without liability for interest thereon. Moneys so
deposited with the Trustee which remain unclaimed five years after the date
payment thereof becomes due shall, at the request of the Company (or the Agent)
and if neither the Issuer nor the Company is at the time to the knowledge of the
Trustee in default with respect to any covenant contained in the Indenture, the
Bonds or the Lease, be paid to the Company (or to the Agent as provided in
Section 10.01 with respect to surplus balances), and the Holders of the Bonds
for which the deposit was made shall thereafter be limited to a claim against
the Company; provided that the Trustee, before making payment to the Company,
may, at the expense of the Company, cause a notice to be given to the Holders at
their registered addresses, stating that the moneys remaining unclaimed will be
returned to the Company after a specified date.
Section 10.04. Survival of Certain Provisions. Notwithstanding the
foregoing, any provisions of this Indenture which relate to the maturity of
Bonds, interest payments and dates thereof, optional and mandatory redemption
provisions, credit against mandatory sinking fund requirements, exchange,
transfer and registration of Bonds, replacement of mutilated, lost, wrongfully
taken or destroyed Bonds, safekeeping and cancellation of Bonds, nonpresentment
of Bonds, holding of moneys in trust, payment of moneys to the Company and the
Agent, and the duties of the Trustee in connection with all of the foregoing,
shall remain in effect and be binding upon the Trustee and the Holders
notwithstanding the release and discharge of this Indenture. The provisions of
this Article shall survive the release, discharge and satisfaction of this
Indenture.
(End of Article X)
<PAGE>
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Limitation of Rights; No Personal Recourse
(a) With the exception of rights conferred expressly in this
Indenture, nothing expressed or mentioned in or to be implied from this
Indenture or the Bonds is intended or shall be construed to give to any Person
other than the parties hereto, the Company, the Remarketing Agent, the Indexing
Agent, the Agent and the Holders of the Bonds any legal or equitable right,
remedy, power or claim under or with respect to this Indenture or any covenants,
agreements, conditions and provisions contained herein.
(b) This Indenture does not pledge the general credit of the
Issuer. The liability of the Issuer hereunder and under the Bonds and the Lease
shall be limited to its interest in the Trust Estate.
(c) No covenant or agreement contained in this Indenture, the
Bonds or the Lease shall be deemed to be the covenant or agreement of any
manager, member, director, officer, attorney, agent or employee of the Issuer in
an individual capacity. No recourse shall be had for the payment of any claim
based thereon against any manager, member, director, officer, agent, attorney or
employee of the Issuer past, present or future, or its successors or assigns, as
such, either directly or through the Issuer, or any successor entity, whether by
virtue of any constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty, or otherwise.
Section 11.02. Severability. In case any section or provision of this
Indenture, or any covenant, agreement, stipulation, obligation, act or action,
or part thereof, made, assumed, entered into or taken under this Indenture, or
any application thereof, is held to be illegal or invalid for any reason, or is
inoperable at any time, such illegality, invalidity or inoperability shall not
affect the remainder thereof or any other section or provision of this Indenture
or any other covenant, agreement, stipulation, obligation, act or action, or
part thereof, made, assumed, entered into or taken under this Indenture, all of
which shall be construed and enforced at the time as if the illegal, invalid or
inoperable portion were not contained therein.
SECTION 11.03. Notices
(a) Any notice, request, complaint, demand or other instrument
or document to be given hereunder shall be given and shall be deemed given if
hand delivered, transmitted by confirmed facsimile (with written confirmation to
follow) or sent by nationally recognized private overnight courier or certified
or registered mail, in each case with confirmation of delivery and delivery
charges prepaid, addressed to the Issuer, the Trustee, the Company, the Agent,
the Indexing Agent and the Remarketing Agent, as the case may be, as follows:
(i) If to the Issuer, at Movieplex Realty Leasing, L.L.C.,
Two World Trade Center, Suite 2112, New York, New York 10048, Attention: Mr.
Roger J. Burns, Vice President.
(ii) If to the Trustee, at First Union National Bank,
Trustee, 999 Peachtree Street, N.E., Suite 1100, Atlanta, Georgia 30309
Attention: Corporate Trust Department;
<PAGE>
(iii) If to the Company, at Carmike Cinemas, Inc., 1301
First Avenue, Columbus, Georgia 31901-2109, Attention: Mr. John O. Barwick, III;
(iv) If to the Agent, at Wachovia Bank, N.A., 191
Peachtree Street, N.E., Atlanta, Georgia 30303-1757, Attention: Syndications
Group; with a copy to Wachovia Bank, N.A., 191 Peachtree Street, N.E., 30th
Floor, Atlanta, Georgia 30303-1757, Attention: Mr. Doug Strickland;
(v) If to the Remarketing Agent, at RealVest Securities
Corporation, Two World Trade Center, New York, New York 10048-0203, Attention:
Mr. Gilbert Sandler.
(vi) If to the Indexing Agent, at RealVest Securities
Corporation, Two World Trade Center, New York, New York 10048-0203, Attention:
Mr. Gilbert Sandler.
(b) The foregoing parties may designate, by notice given
hereunder, any further or different addresses to which any subsequent notice,
request, demand or other instrument or document shall be sent. The Trustee shall
designate, by notice to the Issuer, the Company, the Agent, the Indexing Agent
and the Remarketing Agent addresses to which notices or copies thereof shall be
sent to the Trustee's agents hereunder.
(c) The Trustee hereby agrees to send written notice to the
Rating Agencies upon the occurrence of any of the following events: (1) any
change in the Trustee, the Indexing Agent or the Remarketing Agent or any tender
agent or paying agent; (2) any amendment to the Indenture, the Lease, the
Reimbursement Agreement or the Letters of Credit; (3) any termination,
expiration or extension of the Letters of Credit; (4) the conversion of the
interest rate on the Bonds from the Weekly Mode to the Term Note; and (5)
payment of all principal, interest and premium, if any, on all of the Bonds.
(d) Bondholder notices shall be given by first class mail
addressed to each Holder at his, her or its address as it appears on the
Register. Copies of all notices to the Trustee, the Issuer, the Company, the
Remarketing Agent, the Indexing Agent or the Holders shall also be given to the
Agent.
Section 11.04. Suspension of Mail If because of the suspension of
delivery of first class mail or, for any other reason, the Trustee shall be
unable to mail by first class mail any notice required to be mailed by the
provisions of this Indenture, the Trustee shall give such notice in such other
manner as in the judgment of the Trustee shall most effectively approximate
first class mailing thereof, and the giving of that notice in that manner for
all purposes of this Indenture shall be deemed to be in compliance with the
requirement for the mailing thereof. Except as otherwise provided herein, the
mailing of any notice shall be deemed complete upon deposit of that notice in
the mail and the giving of any notice by any other means of delivery shall be
deemed complete upon receipt of the notice by the delivery service.
Section 11.05. Payments Due on Saturdays, Sundays and Holidays. If any
Interest Payment Date, date of maturity of any Bonds, or date fixed for
redemption of any Bonds is a Saturday, Sunday or a day on which the Trustee or
any paying agent is required or authorized by law (including without limitation
executive orders) to close and is closed, then payment of interest, principal
and any redemption premium need not be made by the Trustee or any paying agent
<PAGE>
on that date, but that payment may be made on the next succeeding Business Day
on which the Trustee or any paying agent is open for business with the same
force and effect as if that payment were made on the Interest Payment Date, date
of maturity or date fixed for redemption, and no interest shall accrue for the
period after that date; provided that if the Trustee is open for business on the
applicable Interest Payment Date, date of maturity or date fixed for redemption,
it shall make any payment required hereunder with respect to payment of interest
on outstanding Bonds and payment of principal of and premium on Bonds presented
to it for payment, regardless of whether any paying agent shall be open for
business or closed on the applicable Interest Payment Date, date of maturity or
date fixed for redemption.
SECTION 11.06. Instruments of Holders
(a) Any writing, including without limitation any consent,
request, direction, approval, objection or other instrument or document,
required under this Indenture to be executed by any Holder may be in any number
of concurrent writings of similar tenor and may be executed by that Holder in
person or by an agent or attorney appointed in writing. Proof of (1) the
execution of any such writing, (2) the execution of any writing appointing any
agent or attorney, and (3) the ownership of Bonds, shall be sufficient for any
of the purposes of this Indenture, if made in the following manner, and if so
made, shall be conclusive in favor of the Trustee with regard to any action
taken thereunder, namely:
(i) The fact and date of the execution by any person of
any writing may be proved by the certificate of any officer in any jurisdiction,
who has power by law to take acknowledgments within that jurisdiction, that the
person signing the writing acknowledged that execution before that officer, or
by affidavit of any witness to that execution; and
(ii) The fact of ownership of Bonds shall be proved by the
Register maintained by the Trustee.
(b) Nothing contained herein shall be construed to limit the
Trustee to the foregoing proof, and the Trustee may accept any other evidence of
the matters stated therein which it deems to be sufficient. Any writing,
including without limitation any consent, request, direction, approval,
objection or other instrument or document, of the Holder of any Bond shall bind
every future Holder of the same Bond, with respect to anything done or suffered
to be done by the Issuer, the Trustee, the Indexing Agent or the Remarketing
Agent pursuant to that writing.
Section 11.07. Binding Effect. This Indenture shall inure to the
benefit of and shall be binding upon the Issuer and the Trustee and their
respective successors and assigns, subject, however, to the limitations
contained herein.
Section 11.08. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be regarded as an original and all
of which shall constitute but one and the same instrument.
Section 11.09. Governing Law. This Indenture and the Bonds shall be
deemed to be contracts made under the laws of the New York and for all purposes
shall be governed by and construed in accordance with the laws of the New York.
(End of Article XI)
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Indenture to be executed
and delivered on its behalf by one of its Authorized Representatives and the
Trustee has caused this Indenture to be executed and delivered on its behalf by
one of its duly authorized officers and its corporate seal to be hereunto
affixed and attested by one of its duly authorized officers all as of the day
and year first above written.
[SEAL] MOVIEPLEX REALTY LEASING,
L.L.C., Issuer
By: RANDOLPH, HUDSON & CO.,
INC., Manager
WITNESS:
/s/Susan Forsyth By: /s/Roger J. Burns
---------------- -----------------
Name: Susan Forsyth Name: Roger J. Burns
Title: Asst. Secretary Title: Vice President
[SEAL] FIRST UNION NATIONAL BANK,
as Trustee
WITNESS:
/s/Douglas Milner By: /s/Emily E. Katt
----------------- ----------------
Name: Douglas Milner Name: Emily E. Katt
Title: Vice President Title: Vice President
This execution page is part of the Trust Indenture dated as of November
1, 1997 between Movieplex Realty Leasing, L.L.C., as Issuer, and First Union
National Bank, as Trustee.
[BOND FORM]
REGISTERED United States of America REGISTERED
NO. State of New York $
MOVIEPLEX REALTY LEASING, L.L.C.
Adjustable Rate Tender Securities
(Carmike Cinemas, Inc.)
1997 Series ____
SERIES ISSUE DATE MATURITY DATE CUSIP
[---------------] ----------, ----
INTEREST RATE:
REGISTERED OWNER:
PRINCIPAL AMOUNT:
Movieplex Realty Leasing, L.L.C., a New Jersey limited liability
company (the "Issuer"), for value received, promises to pay to the registered
owner specified above, or registered assigns, upon surrender hereof, but solely
from the sources and in the manner referred to herein, the Principal Amount
specified above on ____________, unless this Bond has been called for earlier
redemption and payment of the redemption price shall have been duly made or
provided for, and to pay from those sources interest thereon from the most
recent Interest Payment Date (hereinafter defined) to which interest has been
paid or duly provided for or from the Series Issue Date specified above if no
interest has been paid, at the rates determined as provided herein, until the
Principal Amount is paid or duly provided for, commencing on the first Interest
Payment Date after the Date of Authentication hereof.
So long as this Bond bears interest at a Weekly Rate (hereinafter
defined) as specified above, this Bond shall be purchased on demand of the
registered owner hereof as hereinafter described.
The principal of and any premium on this Bond are payable upon
presentation and surrender hereof at the principal corporate trust office of
First Union National Bank (the "Trustee"), or at the duly designated office of
any duly appointed alternate or successor trustee. Interest on this Bond is
payable on each Interest Payment Date by check or draft mailed to the registered
owner of this Bond (the "Holder") in whose name ownership of this Bond is
registered, at such Holder's address as it appears on the registration books
(the "Register") for this issue maintained by the Trustee at the close of
business on the Regular Record Date which shall be (i) while this Bond is in the
Weekly Mode (as hereinafter defined), the last Business Day preceding an
Interest Payment Date and (ii) while this Bond is in the Term Mode (as
hereinafter defined), the fifteenth day of the calendar month next preceding the
Interest Payment Date (the "Regular Record Date"). Any interest which is not
timely paid or duly provided for shall cease to be payable to the Holder as of
<PAGE>
the Regular Record Date, and shall be payable to the Holder in whose name this
Bond is registered at the close of business on a Special Record Date to be fixed
by the Trustee for the payment of such overdue interest. Notice of the Special
Record Date shall be mailed to Holders not less than ten nor more than fifteen
days prior thereto. The interest and the principal or redemption price and
purchase price becoming due with respect to the Bonds (as hereinafter defined)
shall, at the written request of the Holder of at least $1,000,000 aggregate
principal amount of such Bonds, be paid by wire transfer within the continental
United States in immediately available funds to the bank account number of such
Holder appearing on the Register, but, in the case of principal or redemption
price and purchase price, only upon presentation and surrender of such Bonds at
the principal corporate trust office of the Trustee. The principal, redemption
price or purchase price of and interest and any premium on this Bond are payable
in lawful money of the United States of America.
This Bond is one of a duly authorized issue of Adjustable Rate Tender
Securities (Carmike Cinemas, Inc.) 1997 Series A and Series B (the "Bonds"),
issued under and secured by an Indenture of Trust dated as of November 1, 1997
(the "Indenture") between the Issuer and the Trustee, in the aggregate principal
amount of $72,750,000. Pursuant to the Indenture, the proceeds of the Bonds will
be used to finance the Costs (as defined in the Indenture) of certain projects
consisting of the acquisition or ground leasing of certain properties and the
construction, renovation or installation thereon by Carmike Cinemas, Inc. (the
"Company") of multiplex movie theaters. The Issuer shall enter into a Lease
dated November 20, 1997 (the "Lease") with the Company pursuant to which the
Issuer shall lease the Leased Property to the Company, and the Company shall pay
Rent (as defined in the Indenture) to the Issuer. The Rent shall be in amounts
sufficient to pay, when due, the principal of, premium, if any, on and interest
on the Bonds.
THIS BOND IS A LIMITED OBLIGATION OF THE ISSUER AND IS PAYABLE SOLELY
FROM THE SOURCES REFERRED TO HEREIN. THIS BOND SHALL NOT BE OR BE DEEMED AN
OBLIGATION OR A CHARGE AGAINST THE GENERAL CREDIT OF THE ISSUER.
No recourse shall be had for the payment of the principal of or
interest or any premium on this Bond, or for any claim based hereon or on the
Indenture, against any manager, member, director, officer or employee, past,
present or future, of the Issuer or of any successor entity, as such, either
directly or through the Issuer or any such successor entity.
The Bonds are payable solely from moneys pledged to or held by the
Trustee under the Indenture for such purpose, and there shall be no other
recourse against the Issuer or any other property now or hereafter owned by it.
Except as otherwise specified in the Indenture, this Bond is entitled to the
benefits of the Indenture equally and ratably as to principal, premium, if any,
and interest with all other Bonds issued under the Indenture. Additional Bonds
and Refunding Bonds may be issued pursuant to the terms of the Indenture.
Reference is made to the Indenture and the Lease for a description of the rights
of the Holders of the Bonds; the rights and obligations of the Issuer and the
Company; the rights, duties and obligations of the Trustee; and the provisions
relating to amendments and modifications thereof. The acceptance of the terms
and conditions of such documents and the Letters of Credit described below,
copies of which are on file at the principal corporate trust office of the
Trustee, is an explicit and material part of the consideration of the Issuer's
<PAGE>
issuance hereof, and each Holder by acceptance of this Bond accepts and assents
to all such terms and conditions as if fully set forth herein. The Holder shall
have no right to enforce the provisions of the Indenture, the Lease or the
Letters of Credit or the rights and remedies thereunder, except as provided in
the Indenture. Capitalized terms used in this Bond which are not defined herein
but which are defined in the Indenture shall have the respective meanings set
forth in the Indenture.
The Issuer has caused to be issued and delivered to the Trustee by the
LC Issuers (as defined in the Indenture) certain irrevocable, direct-pay letters
of credit pursuant to which the Trustee is authorized, subject to the terms and
conditions thereof, to draw up to (a) an amount equal to the principal amount of
the Bonds (i) to enable the Trustee to pay the principal amount of the Bonds
when due at maturity or upon redemption or acceleration and (ii) to enable the
Trustee to pay the portion of the purchase price of Bonds tendered to it and not
remarketed corresponding to the principal amount of such Bonds, plus (b) an
amount equal to 43 days accrued interest on the outstanding Bonds at the Maximum
Rate while the Bonds bear interest at the Weekly Rate, (i) to enable the Trustee
to pay interest on the Bonds when due and (ii) to enable the Trustee to pay the
portion of the purchase price of Bonds tendered to it and not remarketed
corresponding to the accrued interest on such Bonds. Such irrevocable letter of
credit or any alternate letter of credit delivered to the Trustee in accordance
with the terms of the Indenture is herein called the "Letters of Credit". The
Indenture provides that, while the Bonds bear interest at a Term Rate, the
Letters of Credit must be increased to provide for (i) 210 days accrued interest
on the outstanding Bonds at a rate not less than the applicable Term Rate and
(ii) coverage of premium in an amount equal to the sum of the optional
redemption premium (if any) and supplemental premium (if any) which would become
payable on the Bonds upon mandatory redemption if such Letters of Credit were
not extended beyond the Expiration Date set forth therein. The Letters of Credit
expire on _______________, unless terminated earlier pursuant to their terms or
extended. Subject to the provisions of the Indenture, the Issuer may, but is not
required to, cause the Letters of Credit to be extended or replaced with
Alternate Letters of Credit having substantially the same terms. The LC Issuers
are under no obligation to extend the Letters of Credit. Unless the Letters of
Credit are extended or replaced in accordance with the terms of the Indenture,
this Bond will become subject to mandatory redemption, as described below. The
Letters of Credit are being issued pursuant to a Reimbursement Agreement dated
November 20, 1997 (as the same may be amended or replaced, the "Reimbursement
Agreement") among the Agent, the Lenders (as defined in the Indenture), the
Issuer and certain other parties.
INTEREST ON BONDS
General. This Bond shall bear interest at a Weekly Rate or a Term Rate,
as specified above and described below. The Bonds shall initially bear interest
at a Weekly Rate, subject to conversion to a Term Rate, as described herein. A
"Weekly Rate" is an interest rate for a Weekly Rate Period determined and
adjusted weekly as described below. A "Term Rate" is an interest rate for a Term
Rate Period determined as described below. The Bonds are in the "Weekly Mode" if
they bear interest at a Weekly Rate and a "Term Mode" if they bear interest at a
Term Rate. The Weekly Mode and each Term Mode are each a "Rate Mode". All
computations of interest at a Weekly Rate shall be based on a year of 360 days;
and all computations of interest at a Term Rate shall be based on a 360-day year
of twelve 30-day months. As used in this Bond, the term "Interest Payment Date"
means (i) with respect to Weekly Rate Interest, the first Monday of each
calendar month commencing January 5, 1998 and (ii) with respect to Term Rate
Interest, each ________ and __________.
<PAGE>
Weekly Rate. A Weekly Rate shall be determined for each Weekly Rate
Period as described below. For each Weekly Rate Period and so long as the Bonds
are in the Weekly Mode, the interest rate on the Bonds shall be the current
market rate determined by the Indexing Agent on the immediately preceding Weekly
Rate Calculation Date, in accordance with this Section. On each Weekly Rate
Calculation Date, the Indexing Agent shall determine the Weekly Rate for the
next succeeding Weekly Rate Period. The Weekly Rate shall be a percentage per
annum equal to the Money Market Equivalent Yield, plus or minus the Special
Adjustment Factor, if any, determined by the Indexing Agent. The Special
Adjustment Factor will be the amount, if any, which when added to or subtracted
from the Money Market Equivalent Yield, would result in a Weekly Rate for the
applicable Weekly Rate Period, sufficient, in the opinion of the Indexing Agent,
to enable the Remarketing Agent to remarket the Bonds at 100% of the principal
amount thereof. In determining the Special Adjustment Factor on the Bonds, the
Indexing Agent is to have due regard for general financial and credit market
conditions and such other factors, including the credit rating and financial
condition of the Agent and applicable tender provisions, which, in the judgment
of the Indexing Agent may have a bearing on the interest rate on the Bonds.
Notice of such Weekly Rate shall be given by the Indexing Agent to the Trustee
and the Remarketing Agent by the close of business on the Weekly Rate
Calculation Date. No notice of Weekly Rates will be given to the Issuer, the
Agent or the Holders; however, the Issuer, the Agent and the Holders may obtain
Weekly Rates from the Trustee or the Indexing Agent upon request therefor.
Anything herein to the contrary notwithstanding, in no event shall the
Weekly Rate borne by the Bonds exceed the Maximum Rate.
At the direction of the Issuer (which direction shall be given by the
Issuer upon the request of the Agent), the Maximum Rate shall be increased to a
rate per annum specified by the Agent which does not exceed the maximum
non-usurious rate allowed by applicable law; provided that, if the Bonds are
then rated by a Rating Agency, the Trustee shall receive a written notice from
each Rating Agency then maintaining a rating on the Bonds stating that the
proposed increase of the Maximum Rate will not cause the rating then assigned to
the Bonds to be lowered or withdrawn prior to any increase in the Maximum Rate.
The consent of the Bondholders shall not be required for any such increase in
the Maximum Rate. The Trustee shall not be responsible for determining such
Maximum Rate or obtaining such Rating Agency notices.
If for any reason the Indexing Agent does not determine a Weekly Rate
for any Weekly Rate Period as aforesaid, or if a court holds a rate for any
Weekly Rate Period to be invalid or unenforceable, the Weekly Rate for that
Weekly Rate Period shall be equal to the Weekly Rate in effect for the
immediately preceding Weekly Rate Period. The Weekly Rate for any consecutive
succeeding Weekly Rate Period for which the Indexing Agent does not determine a
Weekly Rate, or a court holds a rate to be invalid or unenforceable, shall be
the sum of (i) the daily unweighted average of the Federal Funds Rate (as
defined in the Indenture), for each Business Day of the preceding week plus (ii)
.125%.
The determination of the Weekly Rate by the Indexing Agent pursuant to
the Indenture shall be conclusive and binding upon the Issuer, the Trustee, the
Company, the Remarketing Agent, the Agent and the Holders of the Bonds.
Term Rate. A Term Rate shall be determined as described below. The Term
Rate shall be determined by the Indexing Agent, on the Term Rate Calculation
Date, as the lowest rate of interest that, in the judgment of the Indexing Agent
taking into account prevailing financial market conditions, would be necessary
to enable the Remarketing Agent to arrange for the sale of the Bonds in the Term
<PAGE>
Mode in a secondary market sale at a price equal to the principal amount thereof
on the first Business Day of the Term Rate Period; provided that (1) if the
Indexing Agent fails for any reason to determine the Term Rate for the Term Rate
Period, such Term Rate shall be equal to 125% of the average annual bond
equivalent yield calculations at par as of the first day of the corresponding
Term Rate Period or, if such day is not a Business Day, the next preceding
Business Day, of United States Treasury obligations having a term to maturity
similar to such Term Rate Period, and (2) the Term Rate shall not exceed the
lesser of (i) the maximum interest rate at which the Letters of Credit then in
effect provides coverage for at least forty three (43) days interest and (ii)
10% per annum. Determination of the Term Rate by the Indexing Agent shall be
conclusive and binding upon the Issuer, the Company, the Trustee, the
Remarketing Agent, the Agent and the Holders. "Term Rate Calculation Date" means
a Business Day not more than 15 days and not less than one day prior to the
first day of the Term Rate Period; "Term Rate Period" means the period from and
after the Conversion Date until the Bonds have been paid or deemed paid.
Conversion. The Indenture provides that the Company shall have the
option to convert the Bonds from the Weekly Mode to a Term Mode on any
Conversion Date the Company shall select; provided that the Conversion Date
shall be an Interest Payment Date. The Company may exercise such option by
giving written notice to the Issuer, the Trustee, the Remarketing Agent, the
Indexing Agent and the Agent, stating its election to convert the Rate Mode of
the Bonds to the Term Rate and stating the Conversion Date therefor, not less
than 45 days (or such shorter period as shall be acceptable to the Trustee)
prior to such Conversion Date. Notice of the exercise of the option to convert
shall not be effective unless certain conditions set forth in the Indenture are
satisfied with respect to such conversion. The Trustee shall give notice by
first class mail to the Holders of the Bonds not less than 30 days prior to the
proposed Conversion Date stating (i) the interest rate on the Bonds is scheduled
to be converted to a Term Rate, (ii) the proposed Conversion Date, (iii) stating
the method of computation which will take effect on the Conversion Date, (iv)
stating that from and after the Conversion Date, the Bonds will no longer be
subject to purchase on demand of the Holder, (v) if the Bonds will be secured by
Letters of Credit after the Conversion Date, so stating and stating the identity
of the LC Issuers issuing such Letters of Credit or if the Bonds will not be
secured by Letters of Credit after the Conversion Date, so stating, (vi) if the
Bonds will be subject to optional redemption after the Conversion Date, so
stating, (vii) stating that the Company on or before the tenth day prior to the
proposed Conversion Date, may determine not to convert the Bonds in which case
the Trustee shall notify the Holders in writing to such effect, and (viii) that
all outstanding Bonds will be subject to a mandatory purchase on the Conversion
Date, or if such Conversion Date is not a Business Day, the first Business Day
immediately following such Conversion Date, at a price of par plus accrued
interest. As used in this Bond, "Conversion Date" means any Interest Payment
Date on which the Rate Mode of the Bonds is converted from the Weekly Mode to
the Term Mode.
<PAGE>
OPTIONAL AND MANDATORY TENDER
Optional Tender for Purchase in Weekly Mode. While the Bonds bear
interest at a Weekly Rate, any Bond shall be purchased on the demand of the
Holder thereof on any Business Day designated by such Holder in a Bondholder
Tender Notice (hereinafter defined) at a purchase price equal to 100% of the
principal amount thereof plus accrued interest, if any, to the date of purchase,
if there is delivered to the Trustee at its Principal Office or Delivery Office,
and to the Remarketing Agent at its Principal Office, a written notice (the
"Bondholder Tender Notice") which (i) states the principal amount (or portion
thereof) of such Bond and (ii) states the date on which such Bond (or portion
thereof) shall be purchased, which date shall be a Business Day not prior to the
seventh day next succeeding the date of the delivery of such notice to the
Trustee and the Remarketing Agent. By delivering the Bondholder Tender Notice,
the Holder irrevocably agrees to deliver such Bond, if held in certificated
form, duly endorsed for transfer in blank and with guarantee of signature
satisfactory to the Trustee, to the Principal Office or the Delivery Office of
the Trustee or any other address designated by the Trustee at or prior to 12:00
noon eastern time on the Business Day specified in the Bondholder Tender Notice.
The determination by the Trustee of a Holder's compliance with such Bondholder
Tender Notice and Bonds delivery requirements is in the sole discretion of the
Trustee and binding on the Company, the Issuer, the Remarketing Agent, the Agent
and the Holder. Any Bondholder Tender Notice which the Trustee determines is not
in compliance with the provisions of this paragraph shall be of no force or
effect.
Any election by a Holder to tender a Bond (or portion thereof) for
purchase on a Business Day shall be irrevocable and shall be binding on the
Holder making such election and on any transferee of such Holder. Each
Bondholder Tender Notice shall automatically constitute (i) an irrevocable offer
to sell the Bond (or portion thereof) to which such notice relates on the
purchase date at a price equal to the purchase price of such Bond (or portion
thereof) described above, (ii) an irrevocable authorization and instruction to
the Trustee to effect transfer of such Bond (or portion thereof) upon payment of
the purchase price to the Trustee on the purchase date, (iii) with respect to a
tender of a portion of a Bond, an irrevocable authorization and instruction to
the Trustee to effect the exchange of such Bond in part for other Bonds in a
principal amount equal to the retained portion so as to facilitate the sale of
the tendered portion of such Bond, and (iv) an acknowledgment that such Holder
will have no further rights with respect to such Bond (or portion thereof) upon
payment of the purchase price thereof to the Trustee on the purchase date,
except for the right of such Holder to receive such purchase price upon
surrender of such Bond, if held in certificated form, to the Trustee endorsed
for transfer in blank and with guarantee of signature satisfactory to the
Trustee and that after the purchase date such Holder will hold such Bond as
agent for the Trustee. If the Bonds are not held in book-entry form and, after
delivery to the Trustee and the Remarketing Agent of such Bondholder Tender
Notice, the Holder making such election shall fail to deliver such Bond or Bonds
described in the Bondholder Tender Notice to the Trustee on or before 12:00 noon
eastern time on the applicable purchase date as described herein, then the
undelivered Bond or portion thereof (the "Undelivered Bond") described in such
Bondholder Tender Notice shall be deemed to have been tendered for purchase to
the Trustee and, to the extent that there shall be held by the Trustee on or
before the applicable purchase date an amount sufficient to pay the purchase
price thereof and available for such purpose pursuant to the Indenture, such
<PAGE>
Undelivered Bond (or portion thereof) shall on such purchase date cease to bear
interest and no longer shall be considered to be outstanding under the
Indenture. Moneys held by the Trustee for the purchase of the Undelivered Bonds
in accordance with the foregoing shall be held in a special separate trust
account for the Holders of such Undelivered Bonds. Such moneys shall be held by
the Trustee uninvested and without liability for interest pending delivery of
such Undelivered Bonds to the Trustee.
Mandatory Tender. This Bond is subject to mandatory tender for
purchase, at a price equal to the principal amount hereof plus accrued interest,
(a) on the Conversion Date, or if the Conversion Date is not a Business Day, the
first Business Day immediately following the Conversion Date, (b) on the
Interest Payment Date next preceding the Expiration Date of the Letters of
Credit or, if earlier, the 30th day next preceding such Expiration Date, unless
the Trustee has received notice that the Letters of Credit have been or will be
extended or Alternate Letters of Credit will be provided pursuant to the
Indenture; (c) on the Expiration Date of the Letters of Credit unless the
Trustee has received by 11:00 a.m. on such Expiration Date a written extension
of the Letters of Credit or Alternate Letters of Credit; and (d) on the Purchase
Date stipulated by the Agent pursuant to the Indenture in the event the Agent
directs the Trustee pursuant to the Indenture to call the Bonds for mandatory
purchase. Any Bond which is not delivered for purchase prior to 12:00 noon
eastern time on the applicable purchase date shall be deemed to have been
tendered to the Trustee as of such purchase date and interest on such
Undelivered Bond shall cease to accrue on such purchase date. Thereafter, the
Holder of such Undelivered Bond shall not be entitled to any payment other than
the purchase price for such Undelivered Bond upon surrender thereof to the
Trustee endorsed for transfer in blank and with guaranty of signature
satisfactory to the Trustee. Except for payment of such purchase price from
moneys held by the Trustee for such purpose, such Undelivered Bond shall no
longer be outstanding and entitled to the benefits of the Indenture.
BY ACCEPTANCE OF THIS BOND, THE HOLDER HEREOF AGREES THAT THIS BOND
WILL BE PURCHASED, WHETHER OR NOT SURRENDERED, ON ANY DATE SPECIFIED BY THE
HOLDER HEREOF IN THE EXERCISE OF THE OPTIONAL TENDER FOR PURCHASE DESCRIBED
ABOVE AND ON THE PURCHASE DATE IN CONNECTION WITH ANY MANDATORY TENDER FOR
PURCHASE. IN SUCH EVENT, THE HOLDER OF THIS BOND SHALL NOT BE ENTITLED TO
RECEIVE FURTHER INTEREST HEREON, SHALL HAVE NO FURTHER RIGHTS UNDER THIS BOND OR
THE INDENTURE EXCEPT FOR PAYMENT OF THE PURCHASE PRICE HELD THEREFOR, AND, IF
THIS BOND IS NOT SURRENDERED ON SUCH DATE, SHALL THEREAFTER HOLD THIS BOND AS
AGENT FOR THE TRUSTEE.
OPTIONAL REDEMPTIONS
Extraordinary Optional Redemption.
(i) The Bonds are subject to extraordinary optional redemption
by the Issuer, in the event of the exercise by the Company of its option to
direct that redemption upon the occurrence of certain events as provided in
Section 15.5 of the Lease at any time in whole or on any Interest Payment Date
in part, upon damage, destruction or condemnation of part of the Project, in
each case, at a redemption price of 100% of the principal amount redeemed plus
accrued interest to the redemption date.
<PAGE>
(ii) The Series A Bonds are subject to partial redemption in the
event the Company elects to purchase one or more Subperforming Theater
Properties pursuant to Section 15.4 of the Lease. The aggregate principal amount
of Series A Bonds to be so redeemed shall be equal to the aggregate purchase
prices received by the Issuer from the Company for the Subperforming Theater
Property or Properties so purchased in accordance with Section 15.4 of the
Lease.
Partial Redemption Upon Purchase. The Series A Bonds are subject to
partial redemption after the Final Project Completion Date in the event the
Company elects to purchase one or more Individual Properties pursuant to
Subsection 4.3(b) of the Lease. The aggregate principal amount of Series A Bonds
to be so redeemed shall be equal to the aggregate purchase prices actually
received by the Issuer from the Company for the Individual Property or
Properties so purchased in accordance with Subsection 4.3(b) of the Lease.
Optional Redemption During Weekly Mode. Prior to the Conversion Date,
the Bonds may be redeemed by the Issuer, at the direction of the Company
(subject to Section 3.03) in whole at any time or in part on any Interest
Payment Date, prior to maturity at a redemption price equal to 100% of the
principal amount thereof plus accrued interest to the redemption date. In the
case of the optional redemption of Bonds in part, the Company may direct that
the Trustee only redeem Series A Bonds and not Series B Bonds to the extent that
the aggregate principal amount of the Series A Bonds Outstanding exceeds the
aggregate principal amount of Series B Bonds Outstanding, and thereafter all
optional redemptions shall be applied to the Series A Bonds and the Series B
Bonds in equal amounts.
Optional Redemption After Conversion Date. From and after the
Conversion Date, the Bonds shall be subject to optional redemption prior to
maturity by the Issuer, at the direction of the Company, if, and to the extent
and at such redemption prices as are set forth in the notice to Bondholders of
the conversion of the Bonds.
Optional Redemption on Special Right of Termination and Purchase. The
Bonds are subject to optional redemption prior to maturity, at a redemption
price equal to 100% of the principal amount thereof plus accrued interest to the
redemption date, in the event the Company exercises its option to terminate the
Lease pursuant to Section 15.7 of the Lease.
MANDATORY REDEMPTIONS
Mandatory Sinking Fund Redemption. The Series A Bonds are subject to
mandatory sinking fund redemption prior to maturity at a redemption price of
100% of the principal amount redeemed plus accrued interest to the redemption
date, on the Annual Payment Dates in the years and in the principal amounts
specified in the Indenture. In the event that any Series A Bonds are redeemed
(other than through sinking fund redemption pursuant to this Section) and are
cancelled by the Trustee, the Trustee shall cause the Issuer to receive a credit
against its sinking fund redemption obligations in the aggregate principal
amount of Bonds so redeemed, such credits to be given in such order of maturity
as may be directed by the Issuer, at the direction of the Company, with the
consent of the Agent which consent shall not be unreasonably withheld or
delayed. Also, at its option, the Company may deliver to the Trustee for
cancellation Series A Bonds purchased by the Company pursuant to the Indenture.
Such Series A Bonds so purchased, delivered and cancelled shall be credited by
the Trustee at 100% of the principal amount thereof against the sinking fund
<PAGE>
redemption obligations of the Issuer in such order of maturity as may be
directed by the Company with the consent of the Agent which consent shall not be
unreasonably withheld or delayed, and the principal amount of Series A Bonds to
be redeemed by sinking fund redemption shall be accordingly reduced.
Concurrently with the events described above, the Trustee shall take such action
as may be necessary to cause the Company to receive corresponding credits
against its obligations to make Lease Payments (as defined in the Indenture).
Anything herein to the contrary notwithstanding, the Issuer and the Company
shall not receive credits pursuant to this section for sinking fund redemption
obligations in respect of which the Trustee has given notice of redemption to
Holders prior to the accrual of such credits. The Series B Bonds are not subject
to mandatory sinking fund redemption.
Partial Redemption on Final Project Completion Date. The Series A Bonds
are subject to partial redemption after the Final Project Completion Date in
accordance with Section 3.9 of the Lease. The aggregate principal amount of
Series A Bonds to be so redeemed shall be equal to (i) the total amount of
moneys remaining in the Project Fund (including investment earnings thereon)
after the Final Project Completion Date which are transferred to the Bond Fund
pursuant to Section 5.03, plus (ii) moneys remaining in the Capitalized Interest
Account and the Capitalized Interest Reserve Account (including investment
earnings thereon) after the Final Project Completion Date which are transferred
to the Bond Fund pursuant to Sections 5.02A and 5.02B, respectively, plus (iii)
all investment earnings on amounts in the Bond Fund through and including the
Final Project Completion Date.
Partial Redemption from Uncompleted Project Purchase Price. The Series
A Bonds are subject to partial redemption after the Final Project Completion
Date in accordance with Subsection 4.2(a) of the Lease. The aggregate principal
amount of Series A Bonds to be so redeemed shall be equal to the aggregate
Uncompleted Project Purchase Price actually received by the Issuer from the
Company pursuant to Subsection 4.2(a) of the Lease.
GENERAL PROVISIONS
If less than all Bonds are to be redeemed at one time, the selection of
the Bonds to be redeemed shall be made by lot or by such other method as the
Trustee deems fair and appropriate; provided that any Bonds pledged to the Agent
shall be redeemed first and any Bonds owned by the Company shall be redeemed
second.
If Bonds or portions thereof are called for redemption and if on the
redemption date moneys for the redemption thereof are held by the Trustee,
thereafter those Bonds or portions thereof to be redeemed shall cease to bear
interest, and shall cease to be secured by, and shall not be deemed to be
outstanding under, the Indenture.
Any notice of redemption shall be given at least 15 days (30 days if
the Bonds are in the Term Mode) prior to the date fixed for redemption, by
mailing a copy of the redemption notice by first class mail, postage prepaid, to
the Holder of each Bond to be redeemed in whole or in part at the address shown
on the Register. Notice of optional redemption may be conditioned upon the
deposit of moneys in the Bond Fund established under the Indenture, in an amount
sufficient for such redemption not later than 12 noon on the redemption date and
such notice shall be of no effect and the redemption shall be deemed cancelled
unless such moneys are so deposited.
<PAGE>
If an Event of Default as defined in the Indenture occurs, the
principal of all Bonds issued under the Indenture may be declared due and
payable upon the conditions and in the manner and with the effect provided in
the Indenture.
If at any time the Trustee holds moneys or securities as described in
the Indenture sufficient to pay at redemption or maturity the principal or
redemption price of and premium, if any, and interest on all Bonds outstanding
under the Indenture and any purchase price payable pursuant to the Indenture in
respect thereof, and if all other sums then payable by the Issuer under the
Indenture have been paid, then subject to the provisions of the Indenture the
lien of the Indenture and other security held by the Trustee for the benefit of
the Holders will be discharged. After such discharge, Holders must look only to
the deposited moneys and securities for payment.
The Indenture permits certain amendments or supplements to the Lease
and the Indenture not materially prejudicial to the Holders to be made without
the consent of or notice to the Holders, and other amendments or supplements
thereto to be made with the consent of the Holders of not less than a majority
in aggregate principal amount of the Bonds outstanding.
The Holder of each Bond has only those remedies provided in the
Indenture.
The Bonds are issuable only as fully registered bonds in the
denominations of $100,000 and any integral multiple thereof and are exchangeable
for Bonds of other authorized denominations in equal aggregate principal amounts
at the Principal Office of the Trustee, but only in the manner and subject to
the limitations provided in the Indenture. This Bond is transferable at the
Principal Office of the Trustee, by the Holder in person or by his attorney,
duly authorized in writing, upon presentation and surrender hereof to the
Trustee. While the Bonds bear interest at the Term Rate, the Trustee is not
required to transfer or exchange (i) any Bond during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Bonds and ending at the close of business on the day of such
mailing, (ii) any Bonds selected for redemption in whole or in part, or (iii)
any Bond during the period of 15 days preceding any Interest Payment Date.
This Bond shall not be entitled to any security or benefit under the
Indenture or be valid or become obligatory for any purpose until the Certificate
of Authentication hereon shall have been signed.
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Bond to be executed in
its name by the manual or facsimile signature of its Authorized Representative
and attested by the manual or facsimile signature of another Authorized
Representative.
[Seal] MOVIEPLEX REALTY LEASING,
L.L.C.
Attest
By:
____________________ ____________________
Title Title
[Form of Certificate of Authentication]
This Bond is one of the Bonds described in the
within-mentioned Indenture.
Date of Authentication: [____________________________]
as Trustee
By:___________________________
Authorized Signature
MASTER LEASE
BETWEEN
MOVIEPLEX REALTY LEASING, L.L.C.,
as Landlord
AND
CARMIKE CINEMAS, INC.,
as Tenant
Dated: November 20, 1997
THIS LEASE AND THE LEASED PROPERTY COVERED HEREBY HAVE BEEN ASSIGNED TO
AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF WACHOVIA BANK, N.A., AS AGENT
(THE "AGENT") UNDER AND TO THE EXTENT SET FORTH IN MORTGAGES AND ASSIGNMENTS OF
RENTS, EACH DATED THE DATE HEREOF, BY LANDLORD IN FAVOR OF THE AGENT AS SUCH
AGREEMENTS MAY BE SUPPLEMENTED, AMENDED, OR MODIFIED FROM TIME TO TIME IN
ACCORDANCE WITH THE PROVISIONS THEREOF. TO THE EXTENT, IF ANY, THAT THIS LEASE
CONSTITUTES CHATTEL PAPER (AS SUCH TERM IS DEFINED IN THE UNIFORM COMMERCIAL
CODE AS IN EFFECT IN ANY APPLICABLE STATE), NO SECURITY INTEREST IN THIS LEASE
MAY BE CREATED THROUGH THE TRANSFER OR POSSESSION OF ANY COUNTERPART HEREOF
OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE
COUNTERPART CONTAINING THE RECEIPT THEREFOR EXECUTED BY THE AGENT ON OR
IMMEDIATELY FOLLOWING THE SIGNATURE PAGE HEREOF OR THEREOF.
<PAGE>
MASTER LEASE
THIS MASTER LEASE is dated November 20, 1997 between MOVIEPLEX REALTY
LEASING, L.L.C., a New Jersey limited liability company having an address at 2
World Trade Center, Suite 2112, New York, New York 10048, as Landlord, and
CARMIKE CINEMAS, INC., a Delaware corporation having an address at 1301 First
Avenue, Columbus, Georgia 31901-2105, as Tenant.
FOR AND IN CONSIDERATION of the premises and of the mutual
representations, covenants and agreements herein set forth, the Landlord and the
Tenant, each binding itself, its successors and assigns, do mutually promise,
covenant and agree as follows; provided that in the performance of the
agreements of the Landlord herein contained, any obligation it may incur for the
payment of money with respect to the Bonds shall be payable solely from the
Trust Estate or from the liquidation of collateral pledged by the Landlord as
security for its performance under the Indenture:
ARTICLE 1. DEFINITIONS AND USAGE
Section 1.1. Definitions. Capitalized terms used but not defined in
this Lease shall have the meanings given to them in the Indenture or the
Reimbursement Agreement, as the case may be. In addition, the following terms
shall have the meanings specified in this Article, unless the context otherwise
requires.
"Account" means any account established in any of the Funds established
under the Indenture.
"Additional Bonds" means any Series of Additional Bonds issued pursuant
to Section 2.05(A) of the Indenture.
"Additional Rent" has the meaning given to it in Section 3.8(a)(ii).
"Adjusted Cash Flow" means, for any period, Consolidated Operating
Income for such period, plus, to the extent deducted in determining the amount
thereof, (i) Rental Obligations (less any principal portion of any Off-Balance
Sheet Leases), (ii) depreciation and amortization, and (iii) any aggregate net
income during such period arising from the sale, exchange or other distribution
of capital assets, provided that the total amount so included pursuant to this
clause (iii) shall not exceed 5% of Consolidated Operating Income for such
period.
"Affiliate" of any Person means (i) any other Person which directly, or
indirectly through one or more intermediaries, controls such Person, (ii) any
other Person which directly, or indirectly through one or more intermediaries,
is controlled by or is under common control with such Person, or (iii) any other
Person of which such Person owns, directly or indirectly, 20% or more of the
common stock or equivalent equity interests. As used herein, the term "control"
means possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agency and Development Agreement" means the Agency and Development
Agreement dated the date hereof between the Landlord and the Tenant, a copy of
which is attached hereto as Exhibit A, pursuant to which, among other things,
the Tenant agrees to act as development agent for the Landlord for the purpose
of selecting the Individual Properties and constructing the Applicable Projects.
<PAGE>
"Agent" means, (i) initially, Wachovia Bank, N.A., and its successors
and assigns in that capacity as agent for the Financial Institutions issuing the
Letters of Credit, and (ii) thereafter, either (A) in the event that only one
Alternate Letter of Credit is outstanding, the Financial Institution issuing
such Alternate Letter of Credit or (B) in the event that there are no Letters of
Credit or Alternate Letters of Credit outstanding, the Trustee.
"Aggregate Fair Market Value" means the aggregate fair market value of
the Individual Properties comprising the Leased Property, as determined and
confirmed by the appraisals delivered by the Tenant to the Landlord and the
Agent pursuant to Sections 6(b) and 7(e)(v) of the Agency and Development
Agreement.
"Allocable Costs" means, with respect to any Individual Property, the
Costs allocable to such Individual Property.
"Alterations" shall have the meaning given to such term in Section
11.1.
"Alternate Letters of Credit" means, collectively, any and all
irrevocable, direct-pay letters of credit issued in confirmation of, or in
replacement or substitution for, any Letters of Credit or Alternate Letters of
Credit, which (i) authorize drawings thereunder by the Trustee, (ii) are issued
by one or more national banking associations, banks, trust companies or other
financial institutions which are Eligible Lenders and (iii) satisfy the
requirements of Section 5.08 of the Indenture.
"Applicable Acquisition Agreement" means, with respect to each
Individual Property, the agreement between the Landlord, as purchaser or ground
lessee, as the case may be, and the seller of such Individual Property, as
seller or ground lessor, as the case may be, pursuant to which the Landlord has
agreed or will agree to purchase or ground lease such Individual Property.
"Applicable Approvals" means, with respect to each Individual Property,
all permits, approvals and authorizations, including without limitation site
plan approval or similar land development approvals, which are required under
Legal Requirements or by Governmental Authorities in connection with the
acquisition or lease of such Individual Property, the construction of the
Improvements and the Off-Site Improvements and the other activities constituting
part of the Applicable Project.
"Applicable Assignment of Rents" means, with respect to each Individual
Property, the assignment of rents pursuant to which the Landlord assigns to the
Agent all of the Landlord's right, title and interest in and to all leases
affecting or relating to such Individual Property.
"Applicable Completion Date" means, with respect to each Individual
Property, the date as of which the Improvements thereon are substantially
completed, as such date shall be evidenced by a final certificate of occupancy
issued by the applicable Governmental Authority and certified by the Tenant to
the Landlord and the Agent pursuant to Section 7(e) of the Agency and
Development Agreement.
"Applicable Construction Agreement" means, with respect to each
Individual Property, the agreement or agreements between the Landlord and any
contractor(s) with respect to the construction of the Improvements on or at such
Individual Property.
<PAGE>
"Applicable Margin" means the Applicable Margin as set forth on the
Letter of Credit Fee Pricing Schedule Matrix attached hereto and made a part
hereof as Exhibit B, as the same may be amended or replaced from time to time.
"Applicable Mortgage" means, with respect to each Individual Property,
the fee or leasehold mortgage and security agreement, deed of trust or similar
document pursuant to which the Landlord grants to the Agent a first lien on and
security interest in and to its interest in such Individual Property.
"Applicable Plans and Specifications" means, with respect to each
Individual Property, the architectural and engineering drawings and
specifications describing the construction of the Improvements thereon which
have been prepared for and accepted by the Tenant and which are approved by the
Landlord and the Agent prior to the commencement of any construction with
respect to the Applicable Project.
"Applicable Project" means, with respect to each Individual Property,
the acquisition or lease, construction, renovation or installation of such
Individual Property, the Improvements thereon and the Off-Site Improvements
relating thereto, including any expansion of, or additional equipment installed
in, any Individual Property, which is funded in whole or in part by the proceeds
of the issuance of the Bonds, for use by the Tenant pursuant to this Lease or
any Lease Supplement.
"Applicable State" means, with respect to each Individual Property, the
state or commonwealth within which such Individual Property, or any portion
thereof, is located.
"Assignments of Rents" means, collectively, all of the Applicable
Assignments of Rents from time to time.
"Assumed Rate" shall mean six (6%) percent per annum.
"Authorized Officer" or "Authorized Representative" means, (1) with
respect to the Landlord: any manager of the Landlord; (2) with respect to the
Tenant: the President, any Executive Vice President or any Vice President or
such other person at the time and from time to time designated by written
certificate furnished to the Landlord and the Trustee containing the specimen
signatures of such person and signed on behalf of the Tenant by the Secretary or
Assistant Secretary of the Tenant; (3) with respect to the Trustee: any officer
of the Trustee authorized by the Trustee to act or execute documents on behalf
of the Trustee; and (4) with respect to the Agent: any officer.
"Bankruptcy Code" means Title 11 of the United States Code (11 U.S.C.
ss.ss.101 et seq.) as amended from time to time, and any successor statute
thereto.
"Basic Rent" means the rent required to be paid pursuant to the
provisions of Section 3.5.
"Basic Rent Commencement Date" means the earlier of (i) the Final
Project Completion Date or (ii) the date on which there are insufficient moneys
available in the Capitalized Interest Account or the Capitalized Interest
Reserve Account to make a payment then due on the Bonds or (iii) the date on
which there are insufficient funds in the Financing Costs Account to make a
payment of Financing Costs then due and payable.
"Basic Rent Payment" means the payment of Basic Rent.
<PAGE>
"Basic Rent Payment Date" means, on and after the Basic Rent
Commencement Date, (A) the first Monday of each month, or if such Monday is not
a Business Day, the next succeeding Business Day, and (B) on and after any date,
with respect to a prepayment of Rent or acceleration of amounts due under this
Lease, the Prepayment Date or date of acceleration, as the case may be.
"Board of Directors" means the Board of Directors of the Tenant or a
duly authorized committee of directors lawfully exercising the relevant powers
of such Board.
"Bond" or "Bonds" means any one or more of the Series A Bonds or the
Series B Bonds or of any Series of Additional Bonds or Refunding Bonds or any
Bonds which are thereafter authenticated and delivered in lieu of or in
substitution for such Bonds pursuant to the Indenture.
"Bond Fund" means the Fund so designated and established by the
Indenture.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in Georgia are authorized by law to close.
"Capital Lease" as applied to any Person, means any lease of any
property (whether real, personal or mixed) by such Person as lessee which would,
in accordance with GAAP, be required to be classified and accounted for as a
capital lease on the balance sheet of such Person, other than, in the case of
the Tenant or a Restricted Subsidiary, any such lease under which the Tenant or
a Wholly Owned Restricted Subsidiary is the lessor.
"Capital Lease Obligations" means, with respect to any Capital Lease,
the amount of the obligations of the lessee thereunder which would, in
accordance with GAAP, appear on a balance sheet of such lessee (or the notes
thereto) in respect of such Capital Lease.
"Capitalization Rate", as used in Section 8.2, means the rate of return
on investment required by a purchaser or an owner of income-producing real
property, which return consists of Net Operating Income to be generated by such
real property.
"Capitalized Interest Account" means the account within the Project
Fund so designated and established by the Indenture.
"Capitalized Interest Costs" means all deposits in the appropriate
Funds and Accounts established under the Indenture for payment of capitalized
interest on the Bonds.
"Certificate," "Order," "Request," "Requisition" and "Statement" means,
respectively, a written certificate, order, request, requisition or statement
signed by an Authorized Representative of the Landlord, the Trustee or the
Agent. Any such instrument and supporting opinions or representations, if any,
may, but need not, be combined in a single instrument with any other instrument,
opinion or representation, and the instruments so combined shall be read and
construed as a single instrument. Any requisition signed by an Authorized
Representative of the Tenant requesting the disbursement of funds from the
Project Fund for Costs of the Projects shall have also been signed by an
Authorized Representative of the Landlord and of the Agent evidencing their
approval thereof.
<PAGE>
"Change of Control" means the occurrence of either of the following:
(i) the consummation of any transaction (including, without limitation, any
merger or consolidation) the result of which is that any "person" or "group" (as
such terms are used in Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended) becomes the beneficial owner of more of the voting power of the
outstanding voting stock of the Tenant than that beneficially owned by the
"Patrick Family" (as defined in the Credit Agreement) or (ii) the first day on
which more than a majority of the members of the Board of Directors of the
Tenant are not Continuing Directors.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commencement Date" means the date of the issuance of the Bonds.
"Communications" shall have the meaning given to such term in Section
26.1.
"Compliance Certificate" shall have the meaning given to such term in
Section 2.1(s)(iii).
"Consolidated Cash Flow" means, for any period, the sum of Consolidated
Operating Income of the Tenant, and its Restricted Subsidiaries, plus to the
extent deducted in determining such Consolidated Operating Income (i)
depreciation and amortization and (ii) any aggregate net income during such
period arising from the sale, exchange or other distribution of capital assets;
provided, however, that the total amount so included pursuant to this clause
(ii) shall not exceed 5% of Consolidated Operating Income for such period;
provided further, however, that, in calculating Consolidated Cash Flow for any
such period, any acquisition or disposition of assets that shall have occurred
during such period will be deemed to have occurred at the beginning of such
period; provided further, however, that (x) for purposes of determining the
ratio of Consolidated Funded Debt to Consolidated Cash Flow, Rent paid under
this Lease or any other Off-Balance Sheet Lease which has been deducted in
computing Consolidated Net Income shall be added back in computing Consolidated
Cash Flow, and (y) with respect to any Individual Property which was acquired or
ground leased by the Landlord within the 12-month period ending on the date of
the determination of Consolidated Cash Flow. Consolidated Cash Flow shall
include Theater-Level EBITDA with respect to such Individual Property and shall
be determined on the basis of actual Theater-Level EBITDA within such period and
projected Theater-Level EBITDA for the remainder of such period (with such
projections being based on the average Theater-Level EBITDA of comparable
theater properties of the Tenant which were operated during the entire 12-month
period).
"Consolidated Funded Debt" means at any date the Funded Debt of the
Tenant and its Restricted Subsidiaries, determined on a consolidated basis as of
such date.
"Consolidated Net Income" means for any period, the net income (or
deficit) of the Tenant and its Restricted Subsidiaries for such period in
question (taken as a cumulative whole) after deducting, without duplication, all
operating expenses, provisions for all taxes and reserves (including reserves
for deferred income taxes) and all other proper deductions, all determined in
accordance with GAAP on a consolidated basis, after eliminating material
inter-company items in accordance with GAAP and after deducting portions of
income properly attributable to outside minority interests, if any, in
Subsidiaries; provided, however, that there shall be excluded (a) any income or
<PAGE>
deficit of any other Person accrued prior to the date it becomes a Subsidiary or
merges into or consolidates with the Tenant or another Subsidiary, (b) the net
income in excess of an amount equal to 5% of Consolidated Net Income for such
period before giving effect to this clause (b) (or deficit) of any Person (other
than a Subsidiary) in which the Tenant or any Subsidiary has any ownership
interest, except to the extent that any such income has been actually received
by the Tenant or such Subsidiary in the form of cash dividends or similar
distributions, and provided that the resulting income is generated by lines of
businesses substantially similar to those of the Tenant and its Restricted
Subsidiaries taken as a whole during the fiscal year ended December 31, 1996,
(c) any restoration to income of any contingency reserve, except to the extent
that provision for such reserve was made out of income accrued during such
period, (d) any deferred credit or amortization thereof from the acquisition of
any properties or assets of any Person, (e) any aggregate net income (but not
any aggregate net loss) during such period arising from the sale, exchange or
other distribution of capital assets (such term to include all fixed assets,
whether tangible or intangible, all inventory sold in conjunction with the
disposition of fixed assets and all securities) to the extent the aggregate
gains from such transactions exceed losses from such transactions, (f) any
impact on the income statement resulting from any write-up of any assets after
the Effective Date (as defined in the Credit Agreement), (g) any items properly
classified as extraordinary in accordance with GAAP, (h) proceeds of life
insurance policies to the extent such proceeds exceed premiums paid to maintain
such life insurance policies, (i) any portion of the net income of a Restricted
Subsidiary which is unavailable for the payment of dividends to the Tenant or a
Restricted Subsidiary, (j) any gain arising from the acquisition of any debt
securities for a cost less than principal and accrued interest, (k) in the case
of a successor to the Tenant by permitted consolidation or merger or transfer of
assets pursuant to Section 2.1(bb), any earnings, of such successor or
transferee prior to the consolidation, merger or transfer of assets and (1) any
earnings on any Investments of the Tenant or any Subsidiary except to the extent
that such earnings are received by the Tenant or such Subsidiary as cash,
provided that earnings which would otherwise be excluded from Consolidated Net
Income pursuant to the preceding provisions of this clause (1) shall be included
in Consolidated Net Income but only to the extent that such earnings are
attributable to the net income of any Person (other than a Subsidiary) in which
the Tenant or any Subsidiary has any ownership interest and such net income is
not otherwise excluded from Consolidated Net Income by virtue of clause (b) of
this definition.
"Consolidated Net Worth" means as of any date of determination (a) the
sum of (i) the net book value (after deducting related depreciation,
obsolescence, amortization, valuation and other proper reserves other than any
such reserve maintained in accordance with GAAP in connection with the use of
the last-in-first-out method of inventory valuation) at which the assets of the
Tenant and its Restricted Subsidiaries would be shown on a consolidated balance
sheet at such date prepared in accordance with GAAP, but excluding any amount on
account of write-ups of assets after the date of the most recent audited
financial statements delivered pursuant to Section 2.1(s), and (ii) the net book
value of the Leased Property and all other property leased by the Tenant and its
Subsidiaries pursuant to Off-Balance Sheet Leases minus (b) the sum of (i) the
net book value of all items of the following character to the extent, if any,
they are included in consolidated assets of the Tenant and its Restricted
Subsidiaries or deducted from consolidated liabilities of the Tenant and its
Restricted Subsidiaries: (A) Investments which, solely by reason of the
description in clause (c) of the definition of Restricted Investments, do not
constitute Restricted Investments, and (B) Restricted Investments made as
<PAGE>
permitted by the provisions of Section 2.1(w), and (ii) the amount at which the
consolidated liabilities of the Tenant and its Restricted Subsidiaries (other
than capital stock and surplus) would be shown on such balance sheet, and
including as liabilities all reserves for contingencies and other potential
liabilities and all minority interests in Restricted Subsidiaries.
"Consolidated Operating Income" means, for any period, Consolidated Net
Income for such period plus, to the extent deducted in determining the amount
thereof, (i) the aggregate amount paid, or required to be paid, in cash by the
Tenant and its Restricted Subsidiaries in respect of income taxes (including
deferred taxes) during such period plus (ii) Interest Expense.
"Consolidated Subsidiary" means, for any Person, each Subsidiary of
such Person (whether now existing or hereafter created or acquired) the
financial statements of which shall be (or should have been) consolidated with
the financial statements of such Person in accordance with GAAP.
"Consolidated Total Capitalization" means, at any time, the sum of: (i)
Consolidated Net Worth, and (ii) Consolidated Funded Debt.
"Continuing Director" means, as of any date of determination, any
member of the Board of Directors of the Tenant who (i) was a member of such
Board of Directors on the Commencement Date or (ii) was nominated for election
or elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"Contractor" means, with respect to each Applicable Project, any
contractor selected by the Tenant, with the approval of the Landlord and the
Agent, to construct, renovate and install such Applicable Project.
"Costs" or "Costs of the Projects" means (i) all Hard and Soft Costs,
plus (ii) all Financing Costs, plus (iii) all Capitalized Interest Costs, minus
(iv) all interest earned prior to the Final Project Completion Date on all
amounts held in the Funds and Accounts under the Indenture.
"Credit Agreement" means the Credit Agreement dated October 17, 1997
among Tenant, each of the banks listed therein and Wachovia Bank, N.A., as
agent, as heretofore amended, modified and supplemented.
"Current Debt" means as at any date of determination all Debt for
borrowed money maturing or payable on demand or within one year from the date of
the creation thereof including any Debt that is by its terms or by the terms of
any instrument or agreement relating thereto directly or indirectly renewable or
extendible, at the option of the debtor, to a date beyond such year, including
any outstanding amounts of any revolving credit facility, but excluding any
fixed or contingent payments maturing or required to be made not more than one
year after such date in respect of the principal and premium, if any, on any
Funded Debt. Any Debt that is extended or renewed shall be deemed to have been
created at the date of such extension or renewal.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee under Capital Leases,
<PAGE>
(v) all obligations of such Person to reimburse any bank or other Person in
respect of amounts payable under a banker's acceptance, (vi) all Redeemable
Preferred Stock of such Person (in the event such Person is a corporation),
(vii) all obligations (absolute or contingent) of such Person to reimburse any
bank or other Person in respect of amounts paid under a letter of credit or
similar instrument, (viii) all Debt of others secured by a Lien on any asset of
such Person, whether or not such Debt is assumed by such Person, and (ix) all
Debt of others Guaranteed by such Person. In determining the Debt and assets of
any Person, no effect shall be given to deposits, trust arrangements or similar
arrangements which, in accordance with GAAP, extinguish Debt for which such
Person remains legally liable, except Debt shall not include the promissory note
of the Tenant in a principal amount not to exceed $3,622,974 and bearing
interest at the rate of 10.083% per annum payable to Columbus Bank and Trust
Company, and any extensions and renewals thereof, provided the proceeds of such
promissory note are used to pay the full purchase price of a certificate of
deposit (the "IRB Certificate of Deposit"), such promissory note (and any such
extension or renewal thereof) is secured by the pledge of such IRB Certificate
of Deposit issued by Columbus Bank and Trust Company in an amount and bearing
interest at a rate sufficient to pay all obligations under such promissory note,
such promissory note is nonrecourse to the Tenant or to any Restricted
Subsidiary except to such IRB Certificate of Deposit and the obligation under
such promissory note is not, in accordance with GAAP, to be classified on its
balance sheet as debt.
"Default" means an event or condition the occurrence of which would,
with the lapse of time or the giving of notice or both, become an Event of
Default.
"Deferred Maintenance Obligation" *[material omitted]
"EastWynn" means EastWynn Theaters, Inc., an Alabama corporation and a
wholly owned subsidiary of the Tenant.
"Environmental Requirements" means all present and future statutes,
regulations, rules, ordinances, permits, approvals and similar items of all
Governmental Authorities relating to the protection of the environment
including, without limitation, those statutes regulating the use, transport,
storage, disposal, discharge, release or threatened release of Hazardous
Substances applicable to the Leased Property and the Off-Site Improvements
(until legal title to any portion of the Off-Site Improvements shall have been
transferred to a Governmental Authority) and/or the use thereof.
"Equipment" means, collectively, all furniture, fixtures and equipment,
including all additions and modifications and accessions thereto and
substitutions and replacements thereof, purchased or acquired, or to be
purchased or acquired, by the Tenant (excluding any such items acquired with the
proceeds from the issuance of the Bonds) and located on, installed at or
otherwise used in connection with any Individual Property, including without
limitation all seats, movie screens, projection equipment and concession
equipment.
"Equity Return Rate" * [material omitted]
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
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* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
<PAGE>
"ERISA Affiliate" means (i) any corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the Code) as the Tenant; (ii) a partnership or other trade or business (whether
or not incorporated) which is under common control (within the meaning of
Section 414(c) of the Code) with the Tenant; and (iii) solely for purposes of
liability under Section 12(c)(11) of the Code, the Lien created under Section
412(n) of the Code, or for tax imposed for failure to meet minimum funding
standards under Section 4971 of the Code, a member of the same affiliated
service group (within the meaning of Section 414(m) of the Code) as the Tenant,
any corporation described in clause (i) above or any partnership or trade or
business described in clause (ii) above.
"Event of Default" means the happening or occurrence of one of the
events or circumstances described in Section 17.1.
"Expiration Date" means the day preceding the sixteenth (16th)
anniversary of the Final Project Completion Date; provided, however, that if the
Initial Term is extended pursuant to the renewal provisions of Article 8 of this
Lease, the Expiration Date shall mean the last day of any such Renewal Term.
"Fair Market Value" shall have the meaning given to such term in
Section 15.2(b).
"Final Disbursement" means, with respect to each Individual Property,
the final disbursement by the Trustee from the Project Fund for the Costs of the
Applicable Project.
"Final Project Completion Date" means the date which is twenty-four
(24) months after the Commencement Date.
"Financial Advisor" means RealVest Capital Corporation, a New Jersey
corporation.
"Financing Costs" means and includes all fees and expenses necessary to
issue, offer and sell the Bonds and to arrange for the Landlord's Equity Amount,
including without limitation (i) the fees and reimbursable expenses of the
Financial Advisor, the Placement Agent, the Agent and the LC Issuers and LC
Participants, (ii) the fees and reimbursable expenses of the attorneys for the
Landlord, the Tenant, the Agent and the LC Issuers and LC Participants and (iii)
all other costs relating to the issuance and sale of the Bonds, including Rating
Agency fees, printing expenses, Trustee setup fees and Trustee's counsel fees.
"First Renewal Term" shall have the meaning set forth in Article 8.
"Fiscal Quarter" means any fiscal quarter of the Tenant.
"Fixed Charges" for any period, means without duplication, the sum of
(i) the aggregate amount of Interest Expense during such period plus (ii) the
aggregate amount of Rental Obligations (less any principal portion of any
Off-Balance Sheet Leases) for such period.
"Fund" means any of the funds established under the Indenture.
"Funded Debt" of any Person means (i) all Debt of such Person which in
accordance with GAAP would be classified on a balance sheet of such Person as of
such date as long-term debt, and including in any event all Debt of such Person,
whether secured or unsecured, having a final maturity (or which, pursuant to its
terms, is renewable or extendible at the option of such Person for a period
ending) more than one year after the date of the creation thereof (including any
<PAGE>
portion thereof which is on such date included in current liabilities of such
Person), plus (ii) all Current Debt of such Person; it being understood and
agreed that, with respect to the Tenant, the term "Funded Debt" shall include,
in addition to all Debt which would otherwise be included pursuant to the
foregoing definition, but without duplication, (x) the sum of the principal
amount of the Outstanding Bonds and the Tenant's obligations under any
Off-Balance Sheet Leases, less amounts in the Project Fund (and any comparable
funds and accounts under documentation executed and delivered in connection with
any Off-Balance Sheet Leases) and (y) the Landlord's Equity Amount.
"GAAP" means generally accepted accounting principles applied on a
basis consistent with those which, in accordance with Section 1.3, are to be
used in making the calculations for purposes of determining compliance with this
Lease.
"Governmental Authority" means any and all courts, boards, agencies,
commissions, offices or authorities of any nature whatsoever for any government
unit (federal, state, county, district, municipal, city or otherwise) whether
now or hereafter in existence.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
secure, purchase or pay (or advance or supply funds for the purchase or payment
of) such Debt or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods, securities
or services, to provide collateral security, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hard and Soft Costs" means and shall be deemed to include, together
with any other proper item of cost which is not specifically mentioned herein,
whether incurred prior to or after the date of this Lease, (a) the cost of the
acquisition or the ground leasing of the Leased Property, fees and expenses
related thereto; (b) the costs and expenses of the Landlord which are incurred
for labor and materials and payments to Contractors, builders and materialmen in
connection with the acquisition or leasing, construction, renovation and
installation of any Individual Property; (c) the cost of contract bonds and of
insurance of any kind that may be required or that may be necessary during the
course of acquisition, construction, renovation and installation of any
Individual Property which is not paid by the Contractor or Contractors; (d) the
costs and expenses of the Landlord for test borings, surveys, estimates, plans
and specifications and preliminary investigations therefor, and for supervising
construction, as well as for the performance of all other duties which are
required by or which are consequent to the proper construction, acquisition,
renovation and installation of any Individual Property; (e) [Intentionally
Omitted]; (f) all other costs which the Landlord shall be required to pay under
the terms of any Acquisition Agreement or Construction Agreement for the
acquisition, construction, renovation or installation of any Individual
Property; (g) any sums which are required to reimburse the Landlord or the
Tenant for any advances which are made by either of them for any of the above
<PAGE>
items, or for any other costs which are incurred and for work which has been
done by either or both of them, provided that same is properly chargeable to any
Individual Property; and (h) such other expenses which are not specified in this
Lease or the Agency and Development Agreement and which may be necessary or
incidental to the construction, acquisition, renovation and installation of any
Individual Property, the financing thereof and the placing of the same in use
and operation. "Hard and Soft Costs" shall also include the costs and expenses
incurred by any agent of the Landlord or any other Person for any of the
above-mentioned items.
"Hazardous Substances" means any hazardous or toxic substance, waste,
pollutant or contaminated material, including without limitation, those
substances within the scope of any federal, state or local environmental laws,
regulations and ordinances, including the Resource Conservation and Recovery
Act, as amended, the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, the Superfund Amendment and Reauthorization Act of
1986, as amended, the Federal Water Pollution Control Act, as amended, the Clean
Air Act, as amended, and the Safe Drinking Water Act, as amended.
"Impositions" means:
(i) all real estate taxes, payments in lieu of real estate
taxes, water and sewer rents and special assessments for public improvements or
benefits levied against the Leased Property, any taxes levied against any other
personal property owned by the Tenant and located at or upon the Leased
Property, charges for public utilities, excises, levies, license and permit fees
and other charges, ordinary or extraordinary, whether foreseen or unforeseen, of
any kind and nature whatsoever, which during the Term may be levied, charged,
confirmed, assessed or imposed upon or become due and payable out of or in
respect of, or become a Lien upon, the Leased Property or any part thereof
(together with any interest and penalties thereon), including, without
limitation, any taxes or assessments hereafter assessed in lieu of any of the
foregoing;
(ii) all charges for water, gas, light, heat, telephone,
electricity, power and other utilities and communications services rendered or
used on or about the Leased Property or any part thereof;
(iii) all state and local taxes (specifically excluding taxes
imposed upon or measured by net income) imposed upon the Landlord or any member,
manager or other principal of the Landlord by reason or as a result of (A) the
payments of Rent to the Landlord hereunder or (B) the ownership or leasing of
the Leased Property by the Landlord hereunder;
(iv) all actual, reasonable costs, fees and expenses incurred
by or on behalf of the Landlord in connection with the Landlord's compliance
with any and all tax laws, rules and regulations (specifically excluding the
costs, fees and expenses of compliance with federal income tax laws, rules and
regulations and state and local taxes imposed upon or measured by net income),
including without limitation the costs, fees and expenses of preparing and
submitting any reports or other filings in connection therewith; and
(v) monetary obligations of the Tenant as to the insurance
required to be maintained pursuant to the provisions hereof.
"Improvements" means (i) with respect to each Individual Property, all
buildings, structures and other improvements (and additions thereto or
substitutions or modifications thereof) presently existing thereon, and all
buildings, structures and other improvements (and additions thereto or
<PAGE>
substitutions or modifications thereof) to be constructed thereon as part of the
Applicable Project in accordance with the Applicable Construction Agreement, the
Applicable Approvals and the Applicable Plans and Specifications, and (ii) with
respect to the Leased Property, all Improvements constructed or to be
constructed, collectively, on all of the Individual Properties; provided,
however, that the Improvements shall not include any Equipment.
"Indemnified Party" or "Indemnified Parties" shall have the meanings
given to such terms in Section 25.1 hereof.
"Indenture" means the indenture of trust dated as of November 1, 1997
by and between the Landlord and the Trustee, pursuant to which the Bonds are to
be issued, including any indentures supplemental thereto as therein permitted.
"Individual Commencement Date" means, with respect to each Individual
Property, the effective date of the Lease Supplement relating to such Individual
Property.
"Individual Property" means, individually, (i) each Supplemental
Property and (ii) each Substitute Property which is substituted for an
Individual Property pursuant to Section 4.4.
"Initial Rent" means Rent payable by the Tenant during the Initial
Term, including Basic Rent and Supplemental Rent.
"Initial Term" means the initial term of this Lease commencing on the
Commencement Date and expiring on the Expiration Date (determined without regard
to the proviso contained in the definition thereof).
"Interest Expense" for any period, means the aggregate amount
(determined in accordance with GAAP on a consolidated basis after eliminating
all intercompany items) of all interest accrued (whether or not actually paid)
by the Tenant and its Restricted Subsidiaries during such period in respect of
Debt of the Tenant and its Restricted Subsidiaries (including Capital Lease
Obligations), provided that the term "Interest Expense" shall (i) include,
without limitation, net amounts paid or accrued during such period in connection
with interest rate protection products (including, without limitation, interest
rate swaps, caps, floors and collars), amortized (if appropriate under GAAP)
appropriately over the term of the applicable Debt, any amortized discount in
respect of Debt issued at a discount and any fees or commissions payable in
connection with any letters of credit, the portion of any Capital Lease
Obligation allocable to interest in accordance with GAAP, the amount of interest
costs incurred by any Person during any period that is capitalized in accordance
with GAAP and is not included as an interest cost in calculating Consolidated
Net Income for such period, and (ii) shall exclude all costs associated with the
prepayment of fixed-rate debt.
"Interest Payment Date" means an Interest Payment Date as defined in
the Indenture.
"Investment" means as to any Person, (a) any direct or indirect
purchase or other acquisition by such Person, for cash or other property, of
stock or other securities of any other Person, or (b) any direct or indirect
loan, advance or capital contribution by such Person to any other Person,
including all Debt and accounts receivable from such other Person which are not
<PAGE>
current assets or did not arise from sales to such other Person in the ordinary
course of business. In computing the amount involved in any Investment, (i)
undistributed earnings of, and interest accrued in respect of Debt owing by,
such other Person accrued after the date of such Investment shall not be
included, (ii) there shall not be deducted from the amounts invested in such
other Person any amounts received as earnings (in the form of dividends,
interest or otherwise) on such Investment or as loans from such other Person and
(iii) unrealized increases or decreases in value, or write-ups, write-downs or
write-offs, of Investments in such other Person shall be disregarded.
"Land Acquisition Disbursement" means, with respect to each Individual
Property, a disbursement by the Trustee from the Project Fund for the Costs of
acquiring title to, or ground leasing, such Individual Property.
"Landlord" means Movieplex Realty Leasing, L.L.C., a New Jersey limited
liability company, and its successors and assigns.
"Landlord's Equity Amount" * [material omitted]
"LC Issuers" shall have the meaning given to such term in the
Reimbursement Agreement.
"LC Participants" shall have the meaning given to such term in the
Reimbursement Agreement.
"Lease" means this Master Lease between the Landlord, as lessor, and
the Tenant, as lessee, and any amendments or supplements hereto in accordance
with the terms hereof, including without limitation all Lease Supplements.
"Leased Property" means, collectively, all of the Individual Properties
now or from time to time hereafter leased by the Landlord to the Tenant pursuant
to this Lease or any Lease Supplement hereafter entered into between the
Landlord and the Tenant.
"Lease Supplement" means each Lease Supplement, substantially in the
form attached hereto as Exhibit E, entered into between the Landlord and the
Tenant in connection with the leasing, on or after the date hereof, of an
Individual Property by the Landlord to the Tenant; it being understood and
agreed that, upon execution and delivery of each Lease Supplement by the
Landlord and the Tenant, such Lease Supplement shall be deemed to become, and
shall in fact become, a part of this Lease.
"Lease Year" means a 12 month period during the Initial Term. The first
Lease Year shall begin on the Basic Rent Commencement Date and shall end on the
date preceding the first anniversary of the Basic Rent Commencement Date.
Subsequent Lease Years shall begin and end on the same dates as the first Lease
Year but in succeeding calendar years.
"Legal Requirements" means, as to the Tenant in the conduct of its
business wherever situated, and as to the Leased Property and the construction,
ownership, use, occupancy, possession, environmental condition, operation,
maintenance, alteration, repair or reconstruction thereof, (i) any and all
present and future judicial decisions, statutes, rulings, rules, regulations,
permits, certificates or ordinances of any Governmental Authority and applicable
- --------------
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
<PAGE>
to the Tenant or the Leased Property or by which the Tenant or the Leased
Property is bound, (ii) any and all terms, provisions, agreements or
restrictions created or imposed pursuant to any lease, contract, instrument of
restrictive covenants or other document applicable to and enforceable against
the Leased Property or the operator of the Leased Property, or applicable to the
Tenant or by which the Tenant is bound, (iii) all terms and provisions of the
Applicable Approvals and (iv) all Environmental Requirements.
"Lenders" shall have the meaning given to such term in the
Reimbursement Agreement.
"Letters of Credit" means, collectively, the irrevocable, direct-pay
letters of credit issued by the LC Issuers to the Trustee on the date of
execution and delivery of the Indenture and any Alternate Letters of Credit,
under which the Trustee is authorized, subject to the terms and conditions
thereof, to draw, in the aggregate, up to (a) an amount equal to the principal
amount of the Outstanding Bonds (i) to enable the Trustee to pay the principal
amount of the Bonds when due, at maturity, upon redemption or upon acceleration
and (ii) to enable the Trustee to pay the portion of the purchase price of Bonds
tendered to it and not remarketed corresponding to the principal amount of such
Bonds, plus (b) an amount equal to interest to accrue at the Maximum Rate on the
Outstanding Bonds for 42 days (i) to enable the Trustee to pay interest on the
Bonds when due and (ii) to enable the Trustee to pay the portion of the purchase
price of Bonds tendered to it and not remarketed corresponding to the accrued
interest on such Bonds, as the same may be amended, transferred, reissued or
extended in accordance with the Indenture.
"Letter of Credit Fees" means all fees payable in connection with the
issuance, origination, maintenance or renewal of the Letters of Credit and any
Alternate Letters of Credit, including without limitation, the fees payable in
the amounts and at the times set forth in Section 2.03(h) of the Reimbursement
Agreement.
"LIBOR" means the rate per annum determined on the basis of the offered
rate for deposits in Dollars of amounts equal or comparable to the amount of the
then Landlord's Equity Amount offered for a term of three months, which rate
appears on the Telerate Page 3750 effective as of 11:00 a.m. London time as of
the first Business Day of each calendar quarter.
"Lien" means, with respect to any asset, any mortgage, deed to secure
debt, deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, servitude or encumbrance of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. The
Tenant or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, Capital Lease or other title retention
agreement relating to such asset.
"Master Assignment" means the master assignment of contracts and
agreements of even date herewith from the Landlord and the Tenant, as assignors,
to the Agent, as assignee, in the form set forth as Exhibit I hereto.
"Material Adverse Effect" means, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
<PAGE>
condition or conditions, occurrence or occurrences, whether or not related, a
material adverse change in, or a material adverse effect upon, any of (a) the
financial condition, operations, business, properties or prospects of the Tenant
and its Restricted Subsidiaries taken as a whole, (b) the rights and remedies of
the Landlord or the Agent under the Transaction Documents, or the ability of the
Tenant to perform its obligations under the Transaction Documents to which it is
a party, as applicable, or (c) the legality, validity or enforceability of any
Transaction Document.
"Maximum Rate" shall have the meaning ascribed thereto in the
Indenture.
"Mortgages" means, collectively, all of the Applicable Mortgages from
time to time.
"Movie Theater(s)" means, individually and collectively, as the context
may require, state-of-the-art (as of the Final Project Completion Date)
multiplex movie theaters operated or to be operated by the Tenant containing
approximately eight (8) to sixteen (16) movie screens each (it being understood
and agreed that entertainment facilities other than movie screens may occupy no
more than fifteen (15%) percent of the usable square footage of the building
housing such movie theater).
"Multiemployer Plan" means any Plan which is a "multiemployer plan" (as
such term is defined in section 4001(a)(3) of ERISA).
"Net Operating Income" means net rental income for leased real property
generated by such property for the benefit of the owner thereof, net of
Impositions and operating and maintenance expenses, if any, assumed by the owner
of such real property.
"Net Proceeds" means any insurance proceeds or condemnation award paid
with respect to any Individual Property remaining after payment therefrom of all
expenses incurred in the collection thereof.
"Obligations" means, when used with respect to a Party hereto, any and
all of the covenants, warranties, representations and other obligations made or
undertaken by such Party to the other Party hereto pursuant to the provisions
hereof.
"Off-Balance Sheet Lease" means any lease which is treated as an
operating lease for accounting purposes and as a financing instrument for
property law and bankruptcy purposes.
"Off-Site Improvements" means (i) with respect to each Individual
Property, those improvements required to be constructed or installed pursuant to
the Applicable Approvals on land other than such Individual Property, and (ii)
with respect to the Leased Property, all Off-Site Improvements constructed or to
be constructed, collectively, on all of the Individual Properties.
"Offering Statement" means, collectively, the Preliminary and Final
Offering or Placement Memorandum prepared and circulated by the Placement Agent
in connection with the issuance of the Bonds.
"Operating Agreement" means the amended and restated operating
agreement of the Landlord dated November 20, 1997.
<PAGE>
"Operating Lease" means a lease of real or personal property other
than, in the case of the Tenant or a Restricted Subsidiary, (a) any such lease
under which the Tenant or a Wholly Owned Restricted Subsidiary is the lessor and
(b) any Capital Lease.
"Outstanding Bonds", "Bonds Outstanding" or "Outstanding" shall have
the meaning ascribed thereto in the Indenture.
"Parties" or "Party" means the Landlord and the Tenant collectively or
individually as the context may require.
"Payment Direction Agreement" means the payment direction agreement
dated November 20, 1997 by and among the Landlord, the Tenant, the Trustee and
the Agent in the form set forth as Exhibit J hereto.
"PBGC" means the Pension Benefit Guaranty Corporation or any Person
succeeding to any or all of its functions under ERISA.
"Permitted Encumbrances" means, with respect to each Supplemental
Property, only those liens, easements, building lines, restrictions, security
interests and other matters accepted or approved by the Landlord and the Agent
in writing.
"Person" means any individual, corporation, company, limited liability
company, voluntary association, partnership, limited liability partnership,
joint venture, trust, unincorporated organization or government (or any agency,
instrumentality or political subdivision thereof).
"Placement Agent" means RealVest Securities Corporation, a New York
corporation.
"Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3 of ERISA) which is or has been established or maintained,
or to which contributions are or have been made, by the Tenant or any ERISA
Affiliate.
"Preferred Member" *[material omitted]
"Preferred Membership Interest" *[material omitted]
"Preferred Member's Unrecovered Capital Account" *[material omitted]
"Preferred Return Rate" shall have the meaning given to such term in
the Operating Agreement.
"Preferred Stock" means, as applied to any corporation, shares of such
corporation which are entitled to preference or priority over any other shares
of such corporation in respect of either the payment of dividends or the
distribution of assets upon liquidation.
"Premier Theater Facility" *[material omitted]
"Prepayment Date" means any date on which the Rent is subject to
optional, mandatory or extraordinary optional prepayment pursuant to Article 20.
- ----------
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
<PAGE>
"Prepayment Ratio" means, with respect to any Individual Property, the
greater of: (i) the ratio, expressed as a percentage, that the fair market value
for such Individual Property (as determined and confirmed by the appraisals
delivered by the Tenant to the Landlord and the Agent pursuant to Sections 6(d)
and 7(e)(v) of the Agency and Development Agreement) bears to the Aggregate Fair
Market Value of the Leased Property, or (ii) the ratio, expressed as a
percentage, that the Allocable Costs for such Individual Property bear to the
total aggregate Costs of the Projects.
"Principal Office" means, when used with reference to the Landlord and
the Tenant, the addresses set forth in Section 26.1 and with reference to the
Trustee, or any other Fiduciary, the respective addresses of such parties as set
forth in the Indenture, and any further or different addresses as such parties
may designate pursuant hereto or thereto.
"Principal Payment Date" means, a date on which a principal installment
of the Bonds is required to be paid to the holders thereof as set forth in the
Indenture, but shall not include a Purchase Date.
"Project Fund" means the Fund so designated and established by the
Indenture.
"Property" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"Qualified Investments" shall have the meaning ascribed thereto in the
Indenture.
"Rating Agencies" means Moody's Investor Service, Inc., if the Bonds
are rated by such Person at the time, Standard & Poor's Ratings Group, if the
Bonds are rated by such Person at the time, and Fitch Investors Service, if the
Bonds are rated by such Person at the time, and their respective successors and
assigns, or if either shall be dissolved or no longer assigning credit ratings
to long term debt, then any other nationally recognized Person assigning credit
ratings to long term debt designated by the Landlord.
"Redeemable Preferred Stock" of any Person means any preferred stock
issued by such Person which is at any time prior to the Maturity Date (as
defined in the Credit Agreement) either (i) mandatorily redeemable (by sinking
fund or similar payments or otherwise) or (ii) redeemable at the option of the
holder thereof.
"Refunding Bonds" means all Bonds, whether issued in one or more
Series, authenticated and delivered on original issuance pursuant to Section
2.05(B) of the Indenture, and any Bonds thereafter authenticated and delivered
in lieu of or in substitution for such Bonds.
"Reimbursement Agreement" means, initially, the reimbursement and
credit agreement dated the date hereof among the Agent, as agent for the LC
Issuers, the LC Issuers, the LC Participants and the Landlord, as the same may
be amended or supplemented from time to time in accordance with the provisions
thereof, and means, with respect to any Alternate Letters of Credit, the
reimbursement agreement, if any, relating to the issuance of such Alternate
Letters of Credit as the same may be amended or supplemented from time to time
in accordance with the provisions thereof.
<PAGE>
"Reimbursement Notes" shall have the meaning given to such term in the
Reimbursement Agreement.
"Reimbursement Obligations" shall mean (i) the "Reimbursement
Obligations" and (ii) all other "Obligations", as those terms are defined in the
Reimbursement Agreement.
"Renewal Rent" means Rent payable by the Tenant during the Renewal
Terms pursuant to Section 8.2.
"Renewal Term" means each period for which the Tenant elects to extend
the Term pursuant to Article 8.
"Rent" means, collectively, Basic Rent and Supplemental Rent.
"Rent Differential" *[material omitted]
"Rent Payments" means the payments of Rent.
"Rental Obligations" means for any period, the total amount (whether or
not designated as rentals or additional or supplemental rentals) payable by the
Tenant or any Restricted Subsidiary under any Operating Lease during such period
(in each case exclusive of amounts so payable on account of maintenance,
repairs, insurance, taxes, assessments and other similar charges); if and to the
extent that the amount of any Rental Obligation during any future period is not
definitely determinable under the Operating Lease in question, the amount of
such Rental Obligation shall be estimated in such reasonable manner as the Board
of Directors in good faith may determine.
"Required Lenders" shall have the meaning given to such term in the
Reimbursement Agreement.
"Reserve Fund" means the reserve fund referred to in Article 19, to be
held by the Landlord as security for the payment of the Deferred Maintenance
Obligation.
"Reserved Rights" means (i) subject to the terms of the Payment
Direction Agreement, the Landlord's right to receive Supplemental Rent hereunder
(other than Supplemental Rent which is payable to or for the account of the
Agent), (ii) the Landlord's rights of reimbursement and indemnity hereunder or
under any Transaction Document, (iii) [Intentionally Omitted], (iv) any rights
of the Landlord to be released from liabilities and obligations hereunder or
under the Transaction Documents and to indemnity contained in this Lease or the
Transaction Documents and (v) the concurrent right of the Landlord to receive
any and all notices, reports, surveys, certificates, financial statements and
evidences of performance which the Tenant may be required to furnish pursuant to
the terms hereof.
"Restricted Investment" means any Investment by the Tenant or a
Restricted Subsidiary in any Person (including a Subsidiary) other than (a)
Investments existing on February 29, 1996 and set forth in Exhibit F hereto; (b)
Investments in (i) any Restricted Subsidiary or any Person which is or
simultaneously therewith becomes a Restricted Subsidiary; (ii) readily
marketable direct obligations issued by the United States of America or by any
agency thereof which in the case of the latter are unconditionally guaranteed
by, or backed by the full faith and credit of, the United States of America, in
each case having a maturity not in excess of one year from the date of
acquisition thereof; (iii) open market commercial paper maturing not later than
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* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
<PAGE>
270 days from the date of creation thereof of corporations that are organized
under the laws of the United States of America or any state thereof, and having
the rating of P-1 or A-1 or such other comparable rating by the Rating Agencies;
(iv) obligations of municipalities or corporations organized under the laws of
the United States of America or any state thereof maturing not later than one
year from the date of acquisition thereof by the Tenant or any Restricted
Subsidiary, and having the rating of AA or Aa or such other comparable rating by
the Rating Agencies; (v) certificates of deposit maturing within one year from
the date of acquisition thereof ("Certificates of Deposit") issued by commercial
banks or trust companies organized under the laws of the United States of
America or any state thereof having not less than $100,000,000 of capital,
surplus and undivided profits and currently having the rating not less than A or
such other comparable rating by the Rating Agencies; (vi) Certificates of
Deposit not to exceed in aggregate principal amount $1,500,000 issued by
Columbus Bank and Trust Company; (vii) Certificates of Deposit issued by
SunTrust Bank, Atlanta and Wachovia Bank, N.A., provided that each such bank is
owned by a "bank holding company" (within the meaning of the Bank Holding
Company Act of 1956, as amended), which shall have a rating of not less than A
or such other comparable rating by each of the Rating Agencies; (viii)
Eurodollar certificates of deposit maturing within one year of the date of
acquisition thereof issued by any bank having not less than $1,000,000,000 of
capital, surplus and undivided profits; and (ix) the IRB Certificate of Deposit
acquired as provided in the proviso set forth in the definition of "Debt"; and
(c) Investments acquired after the Effective Date (as defined in the Credit
Agreement) in exchange for, or out of the net cash proceeds of the substantially
concurrent sale of, capital stock of the Tenant or a Restricted Subsidiary.
"Restricted Payment" means any payment or the incurrence of any
liability to make any payment, in cash, property or other assets (other than in
shares of any class of capital stock, other than Preferred Stock, of the Tenant)
upon or in respect of any share of any class of capital stock of the Tenant,
including without limiting the generality of the foregoing, payments as
dividends and payments (other than out of the net cash proceeds from the
substantially concurrent sale of common shares of the Company) for the purpose
of purchasing, retiring or redeeming any such shares of stock (or any warrants,
options or other rights evidencing a right to purchase any such shares of stock)
or the making of any other distribution in respect of any such shares of stock
(or any warrants, options or other rights evidencing a right to purchase any
such shares of stock).
"Restricted Subsidiary" means any Subsidiary (i) which is organized
under the laws of, and which at the time in question conducts substantially all
of its business and maintains substantially all of its property and assets
within, the United States of America, or any state thereof, Canada, or any
province thereof, or Puerto Rico and (ii) at least 80% of the Voting Stock of
which is at the time owned by the Tenant or by one or more Wholly Owned
Restricted Subsidiaries or by the Tenant and one or more Wholly Owned Restricted
Subsidiaries.
"Return on Landlord's Equity Amount" *[material omitted]
"Revenues" means all (a) the Rent Payments, (b) other moneys received
or to be received by the Landlord or the Trustee in respect of Rent Payments,
including without limitation, all moneys and investments in the Bond Fund, (c)
the payments pursuant to the Security Documents received or receivable by the
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* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
<PAGE>
Landlord from the Tenant, (d) any proceeds of Bonds originally deposited with
the Trustee for the payment of interest accrued on the Bonds or otherwise paid
to the Trustee by or on behalf of the Tenant or the Landlord for deposit in the
Bond Fund or any excess moneys remaining in the Project Fund following Final
Project Completion Date, and (e) investment income with respect to any moneys
held by the Trustee under the Indenture.
"Second Renewal Term" shall have the meaning set forth in Section 8.1.
"Secured Interests" shall have the meaning given to such term in
Section 18.1.
"Security Documents" means, collectively, the Mortgages, the
Assignments of Rents and the Master Assignment.
"Series" means all of the Bonds authenticated and delivered on original
issuance and identified pursuant to the Indenture or a Supplemental Indenture
authorizing such Bonds as a separate Series of Bonds, and any Bonds thereafter
authenticated and delivered in lieu of or in substitution for such Bonds
pursuant to the Indenture, or a Supplemental Indenture, regardless of variations
in maturity, interest rate, principal installments or other provisions.
"Series A Bonds" means the Landlord's Adjustable Rate Tender Securities
Bonds (Carmike Cinemas, Inc.) 1997 Series A (consisting of a Series A-1, a
Series A-2 and a Series A-3) in the aggregate principal amount of $59,775,000,
to be issued by the Landlord pursuant to the Indenture.
"Series B Bonds" means the Landlord's Adjustable Tender Securities
Bonds (Carmike Cinemas, Inc.) 1997 Series B (consisting of a Series B-1, a
Series B-2 and a Series B-3) in the aggregate principal amount of $12,975,000,
to be issued by the Landlord pursuant to the Indenture.
"Stipulated Loss Value" means, with respect to any purchase of an
Individual Property pursuant to Section 15.5, an amount equal to (i) the
Unamortized Total Project Cost, multiplied by (ii) the Prepayment Ratio.
"Subperforming Theater Property" means any Individual Property with
respect to which Theater EBITDA shall be negative for the most recent
consecutive 12-month period.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.
"Substitute Property" means any parcel of real property, together with
any and all Improvements constructed thereon and any and all personal property
acquired by the Landlord in connection therewith, substituted for any Individual
Property pursuant to the terms of Section 4.4.
<PAGE>
"Supplemental Indenture" means any indenture amending or supplementing
the Indenture, which may be entered into in accordance with the provisions of
the Indenture.
"Supplemental Property" means each property hereafter acquired or
ground leased by the Landlord and leased to the Tenant pursuant to a Lease
Supplement, together with any and all Improvements constructed thereon and any
and all personal property acquired by the Landlord in connection therewith.
"Supplemental Rent" shall have the meaning given to such term in
Section 3.8.
"Supplemental Rent Payments" means all payments of Supplemental Rent.
"Tenant" means Carmike Cinemas, Inc., a Delaware corporation and its
successors and assigns.
"Tenant's Visitors" means persons invited by the Tenant and/or its
permitted subtenants onto the Leased Property as guests or doing lawful business
with the Tenant and/or its permitted subtenants including, without limitation,
the agents, servants, employees, contractors, invitees and licensees of the
Tenant and/or its permitted subtenants.
"Term" means the period of time covered by the Initial Term and, if the
Term is extended pursuant to Article 8 hereof, all of the Renewal Terms.
"Theater-Level EBITDA" means with respect to any Individual Property,
operating income derived therefrom, without provision for any interest, taxes
related to income, depreciation, amortization and corporate general and
administrative expenses.
"Title Company" means, with respect to each Individual Property, the
title insurance company, which shall be authorized to transact business in the
Applicable State and satisfactory to the Landlord and the Agent, that issues the
title insurance policy in connection with the acquisition of such Individual
Property and the recording of the Applicable Mortgage.
"Transaction Documents" means this Lease, the Indenture, the
Reimbursement Agreement, the Reimbursement Notes, the Applicable Construction
Agreements, the Lessee Undertaking, the Mortgages, the Assignments of Rents, the
Master Assignment, the Agency and Development Agreement, the Payment Direction
Agreement, the Placement, Indexing and Remarketing Agreement and all agreements,
documents or contracts between the Landlord and the Tenant or the Landlord and
the Agent and, if applicable, the Lenders in connection with the transactions
contemplated by any of the foregoing.
"Trustee" means First Union National Bank and its successors and any
corporation resulting from or surviving any consolidation or merger to which it
or its successors may be a party and any successor trustee at any time serving
as successor trustee under the Indenture.
"Trust Estate" shall have the meaning ascribed to such term in the
Indenture.
<PAGE>
"Unamortized Total Project Cost" means, as of any date of calculation,
an amount equal to (i) the aggregate principal balance of the Outstanding Bonds,
together with all interest accrued thereon, plus (ii) the balance of the
Preferred Member's Unrecovered Capital Account, plus (iii) all accrued and
unpaid Supplemental Rent, plus (iv) all amounts payable pursuant to Section
2.05(b) of the Reimbursement Agreement.
"Uncompleted Project Purchase Price" means, with respect to each
Applicable Project that has not been completed and accepted for occupancy on or
before the Final Project Completion Date or the first anniversary of the Final
Project Completion Date in accordance with Section 4.2, as the case may be, an
amount equal to the aggregate amount of funds advanced by the Trustee from the
Project Fund for or with respect to such Applicable Project.
"Voting Stock" means capital stock of a corporation the holders of
which are ordinarily, in the absence of contingencies, entitled to elect the
corporate directors (or persons performing similar functions).
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary,
all of the equity securities (except directors' qualifying shares) of which are
owned by the Tenant or another Wholly Owned Restricted Subsidiary.
"Wholly Owned Subsidiary" means, with respect to any Person, any such
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are owned or controlled by such Person or one or
more Wholly Owned Subsidiaries of such Person.
Section 1.2. Number and Gender; Captions; References; Capitalized
Terms. Pronouns, wherever used herein, and of whatever gender, shall include
natural persons, corporations and associations of every kind and character, and
the singular shall include the plural wherever and as often as may be
appropriate. Article and section headings in this Lease are for convenience of
reference only and shall not affect the construction or interpretation of this
Lease. Whenever the terms "hereof", "hereby", "herein", or words of similar
import are used in this Lease, they shall be construed as referring to this
Lease in its entirety rather than to a particular section or provision, unless
the context specifically indicates to the contrary. Unless otherwise indicated,
any reference to a particular "Article" or "Section" shall be construed as
referring to the indicated article or section of this Lease.
Section 1.3. Accounting Terms and Determinations. Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Tenant's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Tenant and its Consolidated Subsidiaries delivered
to the Landlord and the Agent, unless with respect to any such change concurred
in by the Tenant's independent public accountants or required by GAAP, in
determining compliance with any of the provisions of this Lease or any of the
other Transaction Documents: (i) the Tenant shall have objected to determining
such compliance on such basis at the time of delivery of such financial
statements, or (ii) the Required Lenders shall so object in writing within 30
days after the delivery of such financial statements, in either of which events
<PAGE>
such calculations shall be made on a basis consistent with those used in the
preparation of the latest financial statements as to which such objection shall
not have been made; provided that, if either the Tenant or the Required Lenders
shall so object, then the Tenant and the Landlord shall negotiate in good faith
to modify the relevant covenants set forth in Article V in order to
appropriately reflect such changes in GAAP and, in the event such covenants are
so modified, upon execution of an amendment to this Agreement effectuating such
modification, the related changes in GAAP will be effective for calculation and
reporting purposes under this Lease.
ARTICLE 2. REPRESENTATIONS, COVENANTS AND WARRANTIES; DISCLAIMERS
Section 2.1. Representations, Covenants and Warranties of Tenant. The
Tenant represents, covenants and warrants as follows:
(a) Corporate Existence and Power. The Tenant is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, is duly qualified to transact business in
every jurisdiction where, by the nature of its business, such qualification is
necessary, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, unless the failure to be so qualified or to have such corporate
powers or governmental licenses, authorizations, consents or approvals would not
have a Material Adverse Effect.
(b) Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Tenant of this
Lease and the other Transaction Documents (i) are within the Tenant's corporate
powers, (ii) have been duly authorized by all necessary corporate action, (iii)
require no action by or in respect of, or filing with, any governmental body,
agency or official, (iv) do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the certificate of incorporation
or by-laws of the Tenant or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Tenant or any of its Subsidiaries,
and (v) do not result in the creation or imposition of any Lien on any asset of
the Tenant or any of its Subsidiaries other than the Lien created by or arising
as a result of the Transaction Documents.
(c) Binding Effect. This Lease and the other Transaction
Documents constitute valid and binding agreements of the Tenant enforceable in
accordance with their respective terms, provided that the enforceability hereof
and thereof is subject in each case to general principles of equity and to
bankruptcy, insolvency and similar laws affecting the enforcement of creditors'
rights generally.
(d) Financial Information.
(i) The consolidated balance sheet of the Tenant and
its Restricted Subsidiaries as of December 31, 1996 and the related consolidated
statements of income, shareholders' equity and cash flows for the Fiscal Year
then ended, reported on by Ernst & Young, copies of which have been delivered to
the Agent, and the unaudited consolidated financial statements of the Tenant and
its Restricted Subsidiaries for the interim period ended June 30, 1997, fairly
present, in conformity with GAAP, the consolidated financial position of the
Tenant and its Restricted Subsidiaries as of such dates and their consolidated
results of operations and cash flows for such periods stated.
<PAGE>
(ii) Since December 31, 1996, there has been no
event, act, condition or occurrence having a Material Adverse Effect (other than
any such event, act, condition or occurrence which is disclosed in the
consolidated financial statements of the Tenant and its Restricted Subsidiaries
for that portion of the Fiscal Year ended on June 30, 1997).
(e) Litigation. There is no action, suit or proceeding
pending, or to the knowledge of the Tenant threatened, against or affecting the
Tenant or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official which could have a Material Adverse Effect
or which in any manner draws into question the validity or enforceability of, or
could impair the ability of the Tenant to perform its obligations under, this
Lease or any of the other Transaction Documents.
(f) Compliance with ERISA.
(i) The Tenant and each member of the Controlled
Group have fulfilled their obligations under the minimum funding standards of
ERISA and the Code with respect to each Plan and are in compliance in all
material respects with the presently applicable provisions of ERISA and the
Code, and have not incurred any liability to the PBGC or a Plan under Title IV
of ERISA.
(ii) Neither the Tenant nor any member of the
Controlled Group is or ever has been obligated to contribute to any
Multiemployer Plan.
(g) Taxes. There have been filed on behalf of the Tenant and
its Subsidiaries all Federal, state and local income, material excise, material
property and other material tax returns which are required to be filed by them
and all taxes due pursuant to such returns or pursuant to any assessment
received by or on behalf of the Tenant or any Subsidiary have been paid prior to
the same becoming delinquent, other than (i) those presently payable without
penalty or interest and (ii) those being contested in good faith by appropriate
proceedings with respect to which adequate reserves have been established in
accordance with GAAP. The charges, accruals and reserves on the books of the
Tenant and its Subsidiaries in respect of taxes or other governmental charges
are, in the opinion of the Tenant, adequate. United States income tax returns of
the Tenant and its Subsidiaries (other than Westwynn Theaters, Inc.) have been
examined and closed through the Fiscal Year ended December 31, 1993.
(h) Subsidiaries. Each of the Tenant's Subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, is duly qualified to transact business in
every jurisdiction where, by the nature of its business, such qualification is
necessary, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, unless the failure to be so qualified or to have such corporate
powers or governmental licenses, authorizations, consents or approvals would not
have a Material Adverse Effect. The Tenant has no Subsidiaries as of the date
hereof except those Subsidiaries listed on Exhibit G hereto, which accurately
sets forth (i) each such Subsidiary's complete name and jurisdiction of
incorporation and (ii) whether such Subsidiary is a Restricted Subsidiary or an
Unrestricted Subsidiary.
(i) Not an Investment Company. Neither the Tenant nor any of
its Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
<PAGE>
(j) Public Utility Holding Company Act. Neither the Tenant nor
any of its Subsidiaries is a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", as such terms are defined in the Public Utility
Holding Company Act of 1935, as amended.
(k) Ownership of Property; Liens. Each of the Tenant and its
Subsidiaries has title to its properties sufficient for the conduct of its
business, and none of such property is subject to any Lien except as permitted
in Section 5.07 of the Credit Agreement.
(l) No Default. Neither the Tenant nor any of its Subsidiaries
is in default under or with respect to any agreement, instrument or undertaking
to which it is a party or by which it or any of its property is bound which
could have or cause a Material Adverse Effect. No Default or Event of Default
has occurred and is continuing.
(m) Full Disclosure. All information heretofore furnished by
the Tenant to the Landlord, the Agent or the Lenders for purposes of or in
connection with this Lease or any transaction contemplated hereby is, and all
such information hereafter furnished by the Tenant to the Landlord, the Agent or
the Lenders will be, true, accurate and complete in every material respect or
based on reasonable estimates on the date as of which such information is stated
or certified. The Tenant has disclosed to the Landlord, the Agent and the
Lenders in writing any and all facts which could have or cause a Material
Adverse Effect.
(n) Environmental Matters.
(i) Except as otherwise provided in Exhibit 4.14A to
the Credit Agreement, (1) neither the Tenant nor any of its Subsidiaries is
subject to Environmental Liabilities which could cause a Material Adverse
Effect, (2) to the best of the Tenant's knowledge, neither the Tenant nor any
Subsidiary has been designated a potentially responsible party under CERCLA or
under any state statute similar to CERCLA, and (3) to the best of the Tenant's
knowledge, none of the Individual Properties has been identified on any current
National Priorities List or CERCLIS List.
(ii) Except as otherwise provided in Exhibit 4.14(B)
to the Credit Agreement, to the best of the Tenant's knowledge, (1) the Tenant,
and each of its Subsidiaries, have used, managed, stored and otherwise handled
Hazardous Materials at the Individual Properties in compliance with applicable
Environmental Laws, excluding any violation of Environmental Laws which did not
cause a Material Adverse Effect, and (2) neither the Tenant nor any of its
Subsidiaries has caused an Environmental Release of Hazardous Materials into the
subsurface soil or groundwater underlying the Individual Properties which could
reasonably be expected to cause a Material Adverse Effect.
(iii) Except as otherwise provided in Exhibit 4.14(C)
to the Credit Agreement, to the best of the Tenant's knowledge, the Tenant and
each of its Subsidiaries maintain all Environmental Authorizations necessary for
the conduct of their respective businesses and are in compliance with all
Environmental Laws applicable to the operation of the Individual Properties and
their respective businesses, excluding any omission of Environmental
Authorizations or violation of Environmental Requirements which could not
reasonably be expected to cause a Material Adverse Effect.
<PAGE>
(o) Compliance with Laws. The Tenant and each of its
Subsidiaries is in compliance with all Legal Requirements, including, without
limitation, all Environmental Requirements, except where any failure to comply
with any such laws would not, alone or in the aggregate, have a Material Adverse
Effect. The Tenant shall also maintain in full force and effect all of its
governmental and other authorizations, approvals, consents, permits, licenses,
certifications and qualifications necessary for the operation and leasing of the
Leased Property. Tenant has not received, has no knowledge of any violation, nor
is there any notice or other record of any violation, of any zoning,
subdivision, environmental, building, fire, safety, health or other statute,
ordinance, regulation, restrictive covenant or other restriction applicable to
the Leased Property except for those constituting Permitted Encumbrances.
(p) Capital Stock. All Capital Stock, debentures, bonds, notes
and all other securities of the Tenant and its Subsidiaries presently issued and
outstanding are validly and properly issued in accordance with all applicable
laws, including, but not limited to, the "Blue Sky" laws of all applicable
states and the federal securities laws; provided that this representation shall
not extend to any violation of applicable laws in connection with any such
issuance occurring by reason of the action or inaction of any Person other than
the Tenant, any Subsidiary or any Person retained or employed by the Tenant or
any Subsidiary. The issued shares of Capital Stock of the Tenant's Wholly Owned
Subsidiaries are owned by the Tenant free and clear of any Lien or adverse
claim. At least a majority of the issued shares of capital stock of each of the
Tenant's other Subsidiaries (other than Wholly Owned Subsidiaries) is owned by
the Tenant free and clear of any Lien or adverse claim.
(q) Margin Stock. Not more than 25% of the aggregate fair
market value of the assets of the Tenant and its Restricted Subsidiaries which
are subject to the provisions of Section 5.07 of the Credit Agreement consists
of Margin Stock. Neither the Tenant nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of
purchasing or carrying any Margin Stock.
(r) Insolvency. After giving effect to the execution and
delivery of the Transaction Documents, including this Lease, the Tenant will not
be "insolvent," within the meaning of such term as used in O.C.G.A. 18-2-22 or
as defined in 101 of Title 11 of the United States Code or Section 2 of the
Uniform Fraudulent Transfer Act, or any other applicable state law pertaining to
fraudulent transfers, as each may be amended from time to time, or be unable to
pay its debts generally as such debts become due, or have an unreasonably small
capital to engage in any business or transaction, whether current or
contemplated.
(s) Information. The Tenant will deliver to the Landlord and
the Agent:
(i) as soon as available and in any event within 90
days after the end of each Fiscal Year, a consolidated balance sheet of the
Tenant and its Restricted Subsidiaries as of the end of such Fiscal Year and the
related consolidated statements of income, shareholders' equity and cash flows
for such Fiscal Year, setting forth in each case in comparative form the figures
for the previous fiscal year, all certified by Ernst & Young or other
independent public accountants of nationally recognized standing, with such
certification to be free of exceptions and qualifications not acceptable to the
Landlord and the Agent;
<PAGE>
(ii) as soon as available and in any event within 45
days after the end of each of the first 3 Fiscal Quarters of each Fiscal Year, a
condensed consolidated balance sheet of the Tenant and its Restricted
Subsidiaries as of the end of such Fiscal Quarter and the related condensed
statement of income and condensed statement of cash flows for such Fiscal
Quarter and for the portion of the Fiscal Year ended at the end of such Fiscal
Quarter, setting forth in each case in comparative form the figures for the
corresponding Fiscal Quarter and the corresponding portion of the previous
Fiscal Year, all certified (subject to normal year-end adjustments) as to
fairness of presentation, GAAP and consistency by the chief financial officer or
the chief executive officer of the Tenant;
(iii) simultaneously with the delivery of each set of
financial statements referred to in clauses (i) and (ii) above, a certificate,
substantially in the form as shall be mutually satisfactory to the Tenant, the
Landlord and the Agent (a "Compliance Certificate"), of the chief financial
officer or the chief executive officer of the Tenant (A) setting forth in
reasonable detail the calculations required to establish whether the Tenant was
in compliance with the requirements of Sections 2.1(u) through 2.1(x),
inclusive, on the date of such financial statements and (B) stating whether any
Default exists on the date of such certificate and, if any Default then exists,
setting forth the details thereof and the action which the Tenant is taking or
proposes to take with respect thereto;
(iv) simultaneously with the delivery of each set of
annual financial statements referred to in clause (i) above, a statement of the
firm of independent public accountants which reported on such statements to the
effect that nothing has come to their attention to cause them to believe that
any Default existed on the date of such financial statements;
(v) within 5 Business Days after the Tenant becomes
aware of the occurrence of any Default, a certificate of the chief financial
officer or the chief executive officer of the Tenant setting forth the details
thereof and the action which the Tenant is taking or proposes to take with
respect thereto;
(vi) promptly upon the mailing thereof to the
shareholders of the Tenant generally, copies of all financial statements,
reports and proxy statements so mailed;
(vii) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and annual, quarterly or monthly
reports which the Tenant shall have filed with the Securities and Exchange
Commission;
(viii) if and when the Tenant or any member of the
Controlled Group (A) gives or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of ERISA) with respect to any
Plan which might constitute grounds for a termination of such Plan under Title
IV of ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the notice of
such reportable event given or required to be given to the PBGC; (B) receives
notice of complete or partial withdrawal liability under Title IV of ERISA, a
copy of such notice; or (C) receives notice from the PBGC under Title IV of
ERISA of an intent to terminate or appoint a trustee to administer any Plan, a
copy of such notice;
<PAGE>
(ix) promptly after the Tenant knows of the
commencement thereof, notice of any litigation, dispute or proceeding involving
a claim against the Tenant and/or any Subsidiary for $1,000,000 or more in
excess of amounts covered in full by applicable insurance;
(x) promptly after the Tenant knows of the existence
thereof, any and all facts which could have or cause a Material Adverse Effect;
and
(xi) from time to time such additional information
regarding the financial position or business of the Tenant and its Subsidiaries
as the Agent or the Landlord may reasonably request.
(t) Inspection of Property, Books and Records. The Tenant will
(i) keep, and will cause each Restricted Subsidiary to keep, proper books of
record and account in which full, true and correct entries in conformity with
GAAP shall be made of all dealings and transactions in relation to its business
and activities; and (ii) permit, and will cause each Restricted Subsidiary to
permit, representatives of the Landlord and the Agent at their expense prior to
the occurrence of an Event of Default and at the Tenant's expense after the
occurrence of an Event of Default to visit and inspect any of their respective
properties, including the Leased Property, to examine and make abstracts from
any of their respective books and records and to discuss their respective
affairs, finances and accounts with their respective officers, employees and
independent public accountants. The Tenant agrees to cooperate and assist in
such visits and inspections, in each case at such reasonable times and as often
as may reasonably be desired.
(u) Ratio of Consolidated Funded Debt to Consolidated Total
Capitalization. At the end of each Fiscal Quarter, commencing with the Fiscal
Quarter ending June 30, 1997, the ratio of Consolidated Funded Debt to
Consolidated Total Capitalization will not at any time exceed .70 to 1.00.
(v) Ratio of Consolidated Funded Debt to Consolidated Cash
Flow. At the end of each Fiscal Quarter, commencing with the Fiscal Quarter
ending June 30, 1997, the ratio of Consolidated Funded Debt at the end of such
Fiscal Quarter to Consolidated Cash Flow for the period of 4 consecutive Fiscal
Quarters ending on such date will not be greater than 4.5 to 1.00.
(w) Restricted Payments and Restricted Investments. The Tenant
will not, directly, or indirectly through a Subsidiary or otherwise, declare,
order, pay, make or set apart any sum or property for any Restricted Payment and
the Tenant will not and will not permit any Restricted Subsidiary to make or
become obligated to make any Restricted Investment, in each case unless, both at
the time of the proposed action and immediately after giving effect thereto, (x)
no condition or event shall exist which constitutes a Default or an Event of
Default; and (y) the aggregate amount of:
(A) all sums and property included in all Restricted
Payments directly or indirectly declared, ordered, paid, made or set apart by
the Tenant during the period (the "Computation Period") (taken as one accounting
period) from and including April 1, 1993 to and including the date of such
proposed action, plus
<PAGE>
(B) the aggregate amount of all Restricted
Investments of the Tenant and all Restricted Subsidiaries made during the
Computation Period and outstanding on the date of such proposed action and all
commitments for such Restricted Investments made by the Tenant or any Restricted
Subsidiary outstanding on such date, shall not exceed the sum of $5,000,000 plus
80% (or minus 100% in the case of a deficit) of Consolidated Net Income during
the Computation Period; provided that the Tenant may declare, order, pay, make
or set apart funds for the payment of a dividend on, and in accordance with the
terms of, any class of its Preferred Stock that is issued and sold by the Tenant
for cash after the date hereof, if, both at the time of the proposed action and
immediately after giving effect thereto, (x) the aggregate amount of Restricted
Payments after the date hereof with respect to all classes of Preferred Stock of
the Tenant shall not exceed the aggregate net proceeds to the Tenant from all
issuances and sales of its Preferred Stock after the date hereof, and (y) no
condition or event shall exist which constitutes a Default or an Event of
Default.
For all purposes of this Section 2.1(w), (1) the amount
involved in any Restricted Payment directly or indirectly declared, ordered,
paid, made or set apart in property and the amount of any Restricted Investment
made through the transfer of property, shall be the greater of (x) the fair
value of such property (as determined in good faith by the Board of Directors of
the Tenant) and (y) the net book value thereof on the books of the Tenant (as
determined in accordance with GAAP), in each case as determined on the date such
Restricted Payment is declared, ordered, paid, made or set apart or the date
such Restricted Investment is made or committed to be made, as the case may be,
and (2) all Investments of any Person existing immediately after such Person
becomes a Restricted Subsidiary which would be Restricted Investments if made by
such Person while subject to the provisions of the Credit Agreement shall be
deemed to be Restricted Investments and to have been made at the time such
Person becomes a Restricted Subsidiary.
(x) Fixed Charge Coverage. At the end of each Fiscal Quarter,
commencing with the Fiscal Quarter ending June 30, 1997, the ratio of Adjusted
Cash Flow to Fixed Charges, in each case for the current Fiscal Quarter and the
immediately preceding 3 Fiscal Quarters, shall not be less than 1.50 to 1.00.
(y) Negative Pledge. Neither the Tenant nor any Restricted
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(i) Liens existing on the date of this Lease securing
Debt outstanding on the date of this Agreement in an aggregate principal amount
not exceeding $18,000,000;
(ii) any Lien existing on any asset of any
corporation at the time such corporation becomes a Restricted Subsidiary and not
created in contemplation of such event;
(iii) any Lien on any asset securing Debt incurred or
assumed for the purpose of financing all or any part of the cost of acquiring or
constructing such asset, provided that such Lien attaches to such asset
concurrently with or within 18 months after the acquisition or completion of
construction thereof;
<PAGE>
(iv) any Lien on any asset of any corporation
existing at the time such corporation is merged or consolidated with or into the
Tenant or a Restricted Subsidiary and not created in contemplation of such
event;
(v) any Lien existing on any asset prior to the
acquisition thereof by the Tenant or a Restricted Subsidiary and not created
in contemplation of such acquisition;
(vi) Liens securing Debt owing by any Subsidiary to
the Tenant;
(vii) any Lien arising out of the refinancing,
extension, renewal or refunding of any Debt secured by any Lien permitted by any
of the foregoing clauses (ii) through (vii) of this Section, provided that (A)
such Debt is not secured by any additional assets, and (B) the amount of such
Debt secured by any such Lien is not increased;
(viii) any Lien on Margin Stock;
(ix) Liens for taxes or other Impositions not yet
delinquent or which are being contested in good faith by appropriate proceedings
and for which the Tenant shall have set aside any reserves required by GAAP;
(x) Liens of landlords, carriers, warehousemen,
mechanics, materialmen and other similar Persons incurred in the ordinary course
of business for sums not yet due;
(xi) Liens (other than any Lien created or imposed
under ERISA) incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive in any case of
obligations incurred in connection with the borrowing of money or the obtaining
of advances of credit);
(xii) any attachment or judgment Lien arising in
connection with court proceedings, provided that (i) the execution or other
enforcement of such Lien is effectively stayed and the claims secured thereby
are being actively contested in good faith and by appropriate proceedings
diligently conducted, and (ii) such reserve or other appropriate provision, if
any, as shall be required by GAAP shall have been made therefor and neither the
Tenant's nor any such Restricted Subsidiary's title to or right to use any of
its property is impaired in any material respect by reason of such contest;
(xiii) easements, licenses, rights-of-way and other
rights and privileges in the nature of easements and similar Liens incidental to
the ownership of property and not incurred in connection with the borrowing of
money or the obtaining of advances of credit, and which do not, individually or
in the aggregate, interfere with the ordinary conduct of the business of the
Tenant or any Restricted Subsidiary or materially detract from the value of the
properties subject to any such Liens;
(xiv) Liens not otherwise permitted by the foregoing
clauses of this Section securing Debt in an aggregate principal amount at any
time outstanding not to exceed 15% of Consolidated Total Capitalization; and
<PAGE>
(xv) any Lien created by or arising as a result of
any of the Transaction Documents.
(z) Maintenance of Existence.
(i) The Tenant shall, and shall cause each Restricted
Subsidiary to, maintain its corporate existence and carry on its business in
substantially the same manner and in substantially the same fields as such
business is now carried on and maintained; provided that (A) the Tenant and its
Restricted Subsidiaries may engage in any transaction permitted by Section
2.1(bb) and (B) dissolution of any Restricted Subsidiary shall not be prohibited
by this Section if all of the assets of such Restricted Subsidiary are
transferred to the Tenant or any other Restricted Subsidiary following such
dissolution.
(ii) Without limiting the generality of the
foregoing, the Tenant shall qualify and maintain such qualification in good
standing as a foreign corporation in every Applicable State.
(aa) Dissolution. The Tenant shall not suffer or permit
dissolution or liquidation either in whole or in part or redeem or retire any
shares of its own stock, except (i) through corporate reorganization to the
extent permitted by Section 2.1(bb), and (ii) through Restricted Payments
permitted by Section 2.1(w).
(bb) Consolidations, Mergers and Sales of Assets. The Tenant
will not, nor will it permit any Restricted Subsidiary to, consolidate or merge
with or into, or sell, lease or otherwise transfer all or any substantial part
of its assets to, any other Person, or discontinue or eliminate any business
line or segment, provided that (a) the Tenant may merge with another Person if
(i) such Person was organized under the laws of the United States of America or
one of its states, (ii) the Tenant is the corporation surviving such merger and
(iii) immediately after giving effect to such merger, no Default shall have
occurred and be continuing, (b) Restricted Subsidiaries of the Tenant may merge
or consolidate with one another or with the Tenant, (c) any Restricted
Subsidiary of the Tenant may be merged or consolidated with or into another
Person to consummate an acquisition of such other Person permitted by Section
2.1(w), provided that the surviving Person shall be a Restricted Subsidiary of
the Tenant, and (d) the foregoing limitation on the sale, lease or other
transfer of assets and on the discontinuation or elimination of a business line
or segment shall not prohibit (i) the sale, lease or other transfer of assets by
a Restricted Subsidiary to any other Restricted Subsidiary or to the Tenant, or
(ii) during any Fiscal Quarter, a transfer of assets or the discontinuance or
elimination of a business line or segment (in a single transaction or in a
series of related transactions) unless the aggregate assets to be so transferred
or utilized in a business line or segment to be so discontinued, when combined
with all other assets transferred, and all other assets utilized in all other
business lines or segments discontinued, during such Fiscal Quarter and the
immediately preceding seven Fiscal Quarters (excluding, however, transfers of
assets permitted by clause (i) of this Section), either (x) constituted more
than 15% of Consolidated Total Assets at the end of the eighth Fiscal Quarter
immediately preceding such Fiscal Quarter, or (y) contributed more than 10% of
Consolidated Operating Income during the 8 consecutive Fiscal Quarters
immediately preceding such Fiscal Quarter.
<PAGE>
(cc) Compliance with Laws; Payment of Taxes. The Tenant will,
and will cause each of its Restricted Subsidiaries and, in the case of ERISA,
each member of the Controlled Group to, comply in all material respects with
applicable laws (including but not limited to ERISA), regulations and similar
requirements of governmental authorities (including but not limited to PBGC),
except where the necessity of such compliance is being contested in good faith
through appropriate proceedings diligently pursued. The Tenant will, and will
cause each of its Restricted Subsidiaries to, pay promptly when due all taxes,
assessments and governmental charges imposed upon the Tenant or the Leased
Property, claims for labor, supplies, rent and other obligations which, if
unpaid, might become a lien against the property of the Tenant or any Restricted
Subsidiary, except (i) liabilities being contested in good faith by appropriate
proceedings diligently pursued and against which, if requested by the Landlord,
the Tenant shall have set up reserves in accordance with GAAP and (ii)
liabilities the nonpayment of which would reasonably be expected to have a
Material Adverse Effect.
(dd) Change in Fiscal Year. The Tenant will not change its
Fiscal Year.
(ee) Maintenance of Property. The Tenant shall, and shall
cause each Restricted Subsidiary to, maintain all of its material properties and
assets in good condition, repair and working order, ordinary wear and tear
excepted.
(ff) Operation of Unrestricted Subsidiaries. The Tenant shall
cause each Unrestricted Subsidiary to conduct its business and operations
separate and apart from that of any Restricted Subsidiary or the Tenant,
including, without limitation, (i) segregating assets of the Tenant and each
Restricted Subsidiary from, and not allowing funds or other assets of the Tenant
or any Restricted Subsidiary to be commingled with, the funds or other assets of
any Unrestricted Subsidiary, (ii) maintaining books and financial records of
each Unrestricted Subsidiary separate from the books and financial records of
the Tenant or any Restricted Subsidiary, (iii) observing all corporate
procedures and formalities in connection with the operation of each Unrestricted
Subsidiary, including, without limitation, maintaining minutes of shareholders'
and directors' meetings of each Unrestricted Subsidiary, (iv) causing each
Unrestricted Subsidiary to pay its liabilities from assets of such Unrestricted
Subsidiary or any other Unrestricted Subsidiary, and (v) causing each
Unrestricted Subsidiary to conduct its dealings with third parties in its own
name and as a separate and independent entity; provided that nothing contained
in this Section shall prohibit the Tenant from acting as collection agent and
paying agent for an Unrestricted Subsidiary, as long as proper books of account
are maintained and reconciled in connection therewith.
(gg) Additional Restricted Subsidiaries. The Tenant shall
deliver to the Agent and the Landlord notice that a Person has become a
Restricted Subsidiary within 10 days after the day on which such Person became a
Restricted Subsidiary.
Section 2.2. Representations, Covenants and Warranties of Landlord. The
Landlord represents, covenants and warrants as follows:
<PAGE>
(a) Organization.
(i) The Landlord is a limited liability company duly
organized, validly existing and in good standing under the laws of the
state of New Jersey. Prior to entering into each Lease Supplement, the Landlord
shall qualify to do business and be in good standing as a foreign limited
liability company in the Applicable State to which such Lease Supplement
relates. The Landlord has, and will have, the full power and authority to enter
into this Lease, each Lease Supplement and each Transaction Document to which it
is a party and to engage in the transactions contemplated hereby and thereby,
and the joinder, consent or approval of no other Person is required for the
execution, delivery and performance hereof and thereof to properly consummate
the transactions herein or therein contemplated or, if required, such joinder,
consent or approval has been obtained and evidence thereof has been delivered to
the Tenant and the Agent.
(ii) The Landlord shall maintain its existence,
continue to be a limited liability company organized under the laws of the
State of New Jersey, not dissolve or otherwise dispose of all or substantially
all of its assets and not consolidate with or merge into another entity or
permit one or more other entities to consolidate with or merge into it unless
the Landlord shall be the surviving entity of any such consolidation or merger.
(iii) The Landlord shall maintain in full force and
effect all of its governmental and other authorizations, approvals,
consents, permits, licenses, certifications and qualifications necessary for the
conduct of its business as it is presently being conducted or contemplated to be
conducted hereunder to the extent the failure to so maintain the foregoing would
constitute a Material Adverse Event.
(iv) The Landlord currently constitutes, and shall
maintain its status as, a single-purpose, bankruptcy-remote entity. The Landlord
shall not terminate the Operating Agreement or amend, modify or supplement the
provisions thereof if such amendment, modification or supplement (A) would
change or expand its purposes, business or permitted activities; (B) would
amend, modify or supplement Section 11(h) thereof; or (C) could have an adverse
effect on the classification of this Lease for GAAP or federal income tax
purposes. The Landlord shall not distribute or permit the distribution of any
excess earnings of the Landlord other than in accordance with the terms of the
Operating Agreement. The Landlord shall conduct no business other than the
business contemplated by this Lease, the Reimbursement Agreement and the other
Transaction Documents.
(b) No Conflict. Neither the execution and delivery of this
Lease nor the fulfillment of or compliance with the terms and conditions hereof,
nor the consummation of the transactions contemplated hereby conflicts with or
results in a breach of the terms, conditions or provisions of any restriction,
any agreement or any instrument to which the Landlord is now a party or by which
the Landlord or its property are bound, or constitutes a default under any of
the foregoing, or results in the creation or imposition of any Lien whatsoever
upon any of the property or assets of the Landlord, or upon the Leased Property
except Permitted Encumbrances.
(c) Binding Obligation. Upon the execution and delivery
hereof, and assuming the valid execution and delivery hereof by the Tenant, this
Lease shall be a valid and binding obligation of the Landlord enforceable
<PAGE>
against the Landlord in accordance with its respective terms, except as the same
may be limited by applicable bankruptcy, insolvency, moratorium or other similar
laws relating to the enforcement of creditors' rights generally from time to
time in effect and to the scope of equitable remedies which may be available.
(d) Amendment to Transaction Documents. The Landlord will not
amend, modify or supplement any of the Transaction Documents to which it is a
party without the prior approval of the Tenant and the Agent.
(e) Financial Statements.
(i) The Landlord shall deliver to the Tenant
quarterly financial statements within thirty-five (35) days after the end of
each of the first, second and third fiscal quarters of the Landlord and annual
financial statements within seventy-five (75) days after the end of each fiscal
year of the Landlord prepared, in each case, in accordance with GAAP.
(ii) The Tenant shall have the right to request an
audit from a firm of independent certified public accountants reasonably
acceptable to the Tenant of any financial statements delivered by the Landlord
to the Tenant; provided, however, that all costs and expenses associated with
such audit shall be the sole responsibility of the Tenant, and shall be payable
by the Tenant as Supplemental Rent hereunder.
Section 2.3. Disclaimer. NEITHER THE LANDLORD BY DELIVERY HEREOF, OTHER
THAN AS SET FORTH IN SECTION 2.2, NOR THE TRUSTEE, BY ITS ACCEPTANCE OF THE
DUTIES OF TRUSTEE UNDER THE INDENTURE, MAKES ANY WARRANTY OR REPRESENTATION,
EITHER EXPRESS OR IMPLIED, AS TO (A) THE LEASED PROPERTY, THE APPLICABLE PLANS
AND SPECIFICATIONS, THE APPLICABLE PROJECTS OR THE IMPROVEMENTS, (B) THE
EXPERIENCE, QUALIFICATIONS OR FINANCIAL CONDITION OF ANY CONTRACTOR OR ANY OTHER
PERSONS WHICH MAY BE ENGAGED TO CONSTRUCT THE APPLICABLE PROJECTS, (C) THE PRICE
TO BE PAID UNDER ANY ACQUISITION AGREEMENT OR CONSTRUCTION AGREEMENT, (D) THE
SUITABILITY OR FITNESS FOR ANY PURPOSE OF THE LEASED PROPERTY OR ANY PART
THEREOF OR (E) ANY OTHER MATTER PERTAINING TO OR RELATING TO THE LEASED
PROPERTY.
Section 2.4. Amendments Relating to Bonds. Each Party hereby agrees and
covenants with the other that it will, from time to time hereafter, execute and
enter into any such amendments or restatements hereof as may be reasonably
required by the Trustee, the Agent, the Rating Agencies or the other Party to
enable or more effectively permit the refinancing of the Bonds and/or the
issuance of the Additional Bonds or Refunding Bonds, if any, so long as (x) all
consents required hereunder, under the other Transaction Documents or under any
other agreement to which the Landlord or the Tenant is a party have been
obtained and (y) any such amendment or restatement does not alter any
substantive right, privilege or protection contained in, or created by this
Lease in favor of such Party, except as contemplated herein.
Section 2.5. Actions Taken by Tenant. To the extent that the
Reimbursement Agreement permits or requires the Tenant to take or perform any
action or step, the Landlord hereby consents to the taking or performing of any
such action or step by the Tenant.
<PAGE>
ARTICLE 3. DEMISE OF PREMISES; TERM; RENT; OTHER PAYMENTS
Section 3.1. Demise of Premises. Subject to the terms and conditions of
this Lease, the Lease Supplements and the Security Documents, the Landlord, for
and in consideration of the covenants herein contained and made on the part of
the Tenant, hereby agrees to lease the Supplemental Properties to the Tenant for
the Term, and the Tenant hereby agrees to lease the Supplemental Properties from
the Landlord for the Term.
Section 3.2. Rent. Throughout the Term, the Tenant agrees to pay (i)
commencing on the Basic Rent Commencement Date, to the Landlord in immediately
available funds as Rent for the Leased Property, Basic Rent as set forth below
and in Section 3.5, and (ii) directly to the Person to whom payment is due and,
if such Person is the Agent, in immediately available funds, delivered to such
Person's office, from time to time as provided for herein, as Supplemental Rent
all other amounts, costs, liabilities and obligations which the Tenant assumes
or agrees to pay to the Landlord or to others hereunder.
Section 3.3. Rental Payments to be Unconditional, No Abatement or
Set-off.
(a) The obligation of the Tenant to make Rent Payments when
due with respect to the Leased Property or any other payments required hereunder
shall be absolute and unconditional in all events (including, without
limitation, failure of the Tenant to possess or have use of the Leased Property
or any portion thereof) and the Tenant hereby acknowledges that the terms of
this Lease create a valid and binding obligation of the Tenant to make Rent
Payments and to pay all other amounts which are required to be paid under the
terms of this Lease.
(b) Notwithstanding any dispute between the Tenant and the
Landlord or any other Person, including, without limitation, the Agent, the
Tenant shall make all Rent Payments required hereunder when due and shall not
withhold any Rent Payment for any reason whatsoever, nor shall the Tenant assert
against the Landlord, the Trustee, the Agent, any LC Issuer, any LC Participant
or any other Person any right of set-off, recoupment, deduction, defense or
counterclaim against its obligation to make such Rent Payments required under
this Lease or claim any abatement, suspension, deferment, diminution or
reduction for any reason whatsoever including, without limitation, whether or
not the Leased Property is used or occupied by the Tenant or is available for
use or occupancy by the Tenant.
(c) The Tenant's obligation to make Rent Payments shall not be
abated through accident or unforeseen circumstances. No abatement, diminution or
reduction in Basic Rent or Supplemental Rent required to be paid by the Tenant
pursuant hereto shall be claimed by or allowed to the Tenant for any
inconvenience, interruption, cessation, or loss of business caused directly or
indirectly, by any present or future Legal Requirements, or by priorities,
rationing or curtailment of labor or materials, or by war, civil commotion,
strikes or riots, or any manner or thing resulting therefrom, or by any other
cause or causes beyond the control of the Landlord, the Tenant, the Agent or any
other Person, nor shall this Lease be affected by any such causes.
(d) This is an absolutely net lease to the Landlord and it is
intended that Tenant shall pay all costs and expenses of every character,
whether foreseen or unforeseen, ordinary or extraordinary or structural or
nonstructural, in connection with the construction, use, operation, maintenance,
<PAGE>
repair and reconstruction of the Leased Property by Tenant including, without
limitation, the costs and expenses particularly set forth in this Lease. It is
the intent of the parties hereto that the Basic Rent payable under this Lease
shall be an absolutely net return to the Landlord and that the Tenant shall pay
all costs and expenses relating to the Leased Property and the business carried
on therein, including any obligations (specifically excluding federal income
taxes and state and local taxes imposed upon or measured by net income) imposed
upon the Landlord, as owner of the Leased Property unless otherwise expressly
provided in this Lease. Any obligation herein relating to the Leased Property
which is not expressly declared in this Lease to be that of the Landlord shall
be deemed to be an obligation of the Tenant and shall be performed by the Tenant
at the Tenant's sole cost and expense and not an obligation or cost and expense
of the Landlord, the Trustee, the Agent, any LC Issuer, any LC Participant or
any other Person.
(e) The Tenant's obligations to make Rent Payments shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Lease under all circumstances, including, without limitation, the
following circumstances:
(i) any lack of validity or enforceability of this
Lease, the Letters of Credit or any Transaction Document;
(ii) any amendment, compromise, settlement or waiver
of or any consent to departure from all or any of the Transaction Documents;
(iii) the existence of any claim, set-off, defense or
other right which the Landlord may have at any time against the Trustee
or the Tenant may have against the Landlord, or either may have against any
other beneficiary, or any transferee, of the Letters of Credit (or any persons
or entities for whom the Trustee, any such beneficiary or any such transferee
may be acting), the Agent, or any other person or entity, whether in connection
with this Lease, the transactions contemplated herein or in the Transaction
Documents, or any unrelated transaction;
(iv) any statement or any other document presented
under the Letters of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect;
(v) payment by the LC Issuers under the Letters of
Credit against presentation of a draft or certificate which does not
comply with the terms of the Letters of Credit;
(vi) any failure, omission or delay on the part of
the Landlord, the Trustee, the Tenant or the Agent to enforce, assert or
exercise any right, power or remedy granted under this Lease or any Transaction
Document;
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
(f) [INTENTIONALLY OMITTED]
(g) The Landlord shall have the rights and remedies for the
collection of Supplemental Rent as are available to the Landlord for the
collection of the Basic Rent.
<PAGE>
(h) Nothing in this Section 3.3 shall be deemed or construed
as a waiver by the Tenant of any rights or remedies which it may have against
any Person, it being understood and agreed that the Tenant may assert any such
rights in one or more separate proceedings.
Section 3.4. Termination of Term/Rental Payment Obligation.
(a) The Tenant will not terminate this Lease nor be relieved
of its obligation to make Rent Payments or from any of its other Obligations
hereunder for any reason including, without limiting the generality of the
foregoing, any acts or circumstances that may constitute an eviction or
constructive eviction, failure of consideration, failure of title, or
frustration of purpose, or any damage to or destruction of the Leased Property
or any portion thereof, or the taking by eminent domain of title or the right of
temporary use of all or any part of the Leased Property, or the failure of the
Landlord or any other Person to perform and observe any agreement or covenant,
whether expressed or implied, or any duty, liability or obligation which arises
out of or which is related to this Lease by the terms hereof or under law or
otherwise.
(b) Not earlier than three hundred sixty (360) days nor later
than two hundred seventy (270) days prior to the Expiration Date of the Initial
Term, the Tenant shall notify the Landlord and the Agent in writing of its
election to exercise one of the following options (it being understood and
agreed that a failure to so notify the Landlord and the Agent within such time
period shall be deemed to be an election by the Tenant to exercise the option
set forth in Section 3.4(b)(iii) below):
(i) to purchase all (but not less than all) of the
Individual Properties comprising the Leased Property on the terms and conditions
set forth in Article 15 of this Lease; or
(ii) to renew the Initial Term of this Lease with
respect to all (but not less than all) of the Individual Properties comprising
the Leased Property on the terms and conditions set forth in Article 8 of this
Lease; or
(iii) to surrender the Leased Property in accordance
with and subject to the provisions of Article 13 of this Lease, in which event
the Tenant shall pay to the Landlord, on the Expiration Date and in immediately
available funds, the Deferred Maintenance Obligation.
Section 3.5. Basic Rent.
(a) From and after the Basic Rent Commencement Date, the
Tenant shall pay Basic Rent Payments on each Basic Rent Payment Date in the
amounts for the applicable month shown on Exhibit H annexed hereto and made a
part hereof, as such amounts are adjusted by the Rent Differential.
(b) During any Renewal Term, the applicable Renewal Rent
determined in accordance with Section 8.2 hereof.
(c) In the event the Bonds are redeemed in whole or in part
(other than any mandatory sinking fund redemption) from funds other than (I)
drawings under the Letters of Credit, or (ii) payments or prepayments of Basic
Rent by or at the direction of the Tenant hereunder, the Tenant shall continue
to make payments of Basic Rent hereunder during the Initial Term on each Basic
Rent Payment Date as provided in Section 3.5(a).
<PAGE>
Section 3.6. [Intentionally Omitted].
Section 3.7. Basic Rent; No Bonds Outstanding. Subject to Section
3.5(c), no Basic Rent Payments shall be due or payable at any time during which
no Bonds are Outstanding and all Reimbursement Obligations payable under the
Reimbursement Agreement and the Reimbursement Notes have been paid in full.
Section 3.8. Supplemental Rent.
(a) Components of Supplemental Rent. Subject to the exclusions
set forth in Section 3.8(b) below, the Tenant hereby agrees to pay to Landlord
(or to whomever shall be entitled thereto as expressly provided herein or in any
other Transaction Document) the following amounts (such amounts, giving effect
to such exclusions, being herein referred to as "Supplemental Rent") as and when
the same shall become due and payable:
(i) Administrative and Other Expenses and Amounts. So
long as there shall be any amount of principal of, interest on, or other amounts
due in connection with the Bonds or the Reimbursement Agreement or Reimbursement
Notes, the following:
(A) for the account of the Landlord, the
fees and charges of the Agent for all services of the Agent and all its
reasonable expenses (including, without limitation, reasonable counsel
fees), and all other fees, interest, charges, payments, penalties,
amounts owing, in each case, in respect of indemnities and other
amounts owing under the Reimbursement Agreement and the Reimbursement
Notes, including, without limitation, interest in respect of the
foregoing, incurred by the Landlord in accordance with the
Reimbursement Agreement and the Reimbursement Notes, as and when the
same become due;
(B) for the account of the Landlord, all
out-of-pocket fees and expenses incurred by the Agent and the LC
Issuers, including without limitation the fees and expenses of counsel
to the Agent (but not counsel to the other LC Issuers) for the
amendment of the Transaction Documents, the fees and expenses of
counsel to the Agent and the other LC Issuers in connection with the
occurrence of an event of default, or the enforcement or preservation
of rights, under the Transaction Documents in connection with the
transactions contemplated thereby, including the structuring and
implementation thereof, irrespective of whether such transactions are
consummated and the fees and costs in connection with any environmental
reports, plans, surveys, appraisals, title policies, recording charges,
excise, documentation and other taxes or other documents or
certificates prepared, or charges payable, in connection with the
transactions contemplated by the Transaction Documents;
(C) for the account of the Landlord, the
fees and charges of Trustee for all services of Trustee and all its
reasonable expenses (including, without limitation, reasonable counsel
fees) incurred by Trustee in accordance with the Indenture, as and when
the same become due;
(D) for the account of the Landlord, to the
extent the Landlord is obligated therefor, the reasonable fees and
charges of any other paying agents for the Bonds, as and when the same
become due;
<PAGE>
(E) to or for the account of the Landlord,
all reasonable costs and expenses (including, without limitation,
reasonable counsel fees) incurred by the Landlord in connection with
the issuance of the Bonds;
(F) for the account of the Landlord, (I) the
fees payable to the Agent pursuant to the Agent's Letter Agreement and
the Letter of Credit Fees, or (ii) if the Bonds and the Reimbursement
Obligations are no longer outstanding, and the Tenant is obligated to
pay Basic Rent in accordance with Section 3.5(c), an amount equal to
the Letter of Credit Fees which would have been payable under Section
2.03 of the Reimbursement Agreement had the Bonds and the Letters of
Credit remained outstanding, as shown on Exhibit B hereof, provided,
however, that the Tenant shall not be obligated to pay any other fees
or expenses of any refinancing (other than an Indexing Agent fee) by
Landlord which Tenant has not approved in advance;
(G) for the account of the Landlord, all
reasonable administrative costs and expenses (including, without
limitation, reasonable counsel fees) incurred by the Landlord in
connection with the administration, modification or enforcement of this
Lease or any of the other Transaction Documents or the administration
of any Individual Property or any matters relating thereto; and
(H) for the account of the Landlord, (1) all
amounts payable to the Rating Agencies, (2) all fees and expenses
payable to the remarketing agent and indexing agent in connection with
the Bonds, and all fees and costs associated with the remarketing of
the Bonds, (3) all fees and expenses associated with draws under the
Letters of Credit, (4) all costs incurred by the Landlord in connection
with the Landlord's compliance with the terms of this Lease, the
Reimbursement Agreement, the Reimbursement Notes or any other
Transaction Document, including without limitation compliance with any
financial reporting requirements (including delivery of financial
statements of Landlord) hereunder or thereunder, but excluding any
costs of compliance with financial reporting requirements (including
the cost of the preparation an delivery of financial statements) to the
extent such financial reporting relates to Persons other than the
Landlord, (5) all fees and expenses incurred in connection with
qualifying, or maintaining qualification, to do business in any
Applicable State, including without limitation any annual reports or
annual filing fees, (5) all Impositions with respect to each Applicable
State, together with all costs in connection therewith and (6) all
costs and expenses relating to or required in connection with the
application for, or obtaining of, any governmental consents or
approvals;
provided, however, that any payments made by Trustee pursuant to the Indenture
in respect of amounts referred to in clauses (A), (B), (C) or (D) above shall be
credited against the obligation of Tenant under this subsection (i);
(ii) Additional Rent. From and after the Basic Rent
Commencement Date, the Return on Landlord's Equity Amount shall be due and
payable on the first Basic Rent Payment Date of each calendar quarter (the
"Additional Rent"); provided, however, that no Additional Rent shall be payable
by the Tenant for any period (A) to the extent moneys are provided to or
<PAGE>
deposited with the Trustee from proceeds derived from the sale of the Bonds and
applied by the Trustee for the payment of such Additional Rent or (B) to the
extent of a balance available for payment of such Additional Rent in the Bond
Fund which is applied by the Trustee for the payment of such Additional Rent;
and provided further that upon the expiration of the Initial Term, the Landlord
shall refund to the Tenant, or the Tenant shall pay to the Landlord, as the case
may be, the difference between the aggregate amounts paid by the Tenant pursuant
to this Section 3.8(a)(ii) and the amount of the Return on Landlord's Equity
Amount as finally determined as of the end of the Initial Term.
(iii) [INTENTIONALLY OMITTED];
(iv) Aggregate Fair Market Value Threshold. If applicable, the
amount set forth in Section 4.3(a); and
(v) Other Amounts. Any other amounts, other than Basic Rent
and the Rent Differential, (A) owing by the Tenant under this Lease or (B) owing
by the Landlord under the Reimbursement Agreement, the Indenture or the other
Transaction Documents, including, without limitation, all reasonable costs
incurred or to be incurred by the Landlord in connection with the Landlord's
compliance with the financial reporting requirements (including delivery of
financial statements) hereunder, under the Reimbursement Agreement or under any
of the other Transaction Documents.
(b) Exclusions from Supplemental Rent. Supplemental Rent shall
not include, and Tenant shall have no obligation to pay, notwithstanding any
provision in the foregoing Section 3.8(a), in any other section of this Lease or
in any other Transaction Document (but without impairing Tenant's obligation to
pay Basic Rent, as adjusted by the Rent Differential, Additional Rent or other
amounts described in Section 20.2), any of the following amounts:
(i) any amount payable by any Person in respect of
federal income tax or state or local taxes imposed upon or measured by net
income, in each case imposed or measured by the net income of any Person other
than Tenant;
(ii) the principal amount of the Bonds, and interest
payable with respect thereto, or the principal amount of the Reimbursement
Obligations or the Reimbursement Notes and interest payable with respect
thereto;
(iii) any distribution payable to, or return
guaranteed or payable to, any Person in its capacity as a member of Landlord;
(iv) any amount owing or payable to any Person as a
result of any default or event of default under the Indenture, the Reimbursement
Agreement or any other Transaction Document, to the extent that such default or
event or default is not also an Event of Default hereunder;
(v) any taxes or other cost or expenses incurred by
any Person as a result of any transfer by the Landlord of its interest in the
Lease, by any Person of any membership interest in the Landlord, or by any
Lender of its interest in the Reimbursement Agreement, any Reimbursement Note or
any Letter of Credit; or
<PAGE>
(vi) any amount payable under any Transaction
Document (other than this Lease) resulting from, or payable in connection with,
any amendment, modification or supplement to or of such Transaction Document, to
the extent such amendment, modification or supplement has not been requested or
approved by the Tenant.
Section 3.9. Surplus Moneys in Bond Fund. In the event that the
Aggregate Fair Market Value of the Leased Property as of the Final Project
Completion Date shall be equal to or greater than $75,000,000, then the Trustee
shall, in accordance with and subject to the terms of the Indenture, redeem
Bonds in an aggregate principal amount equal to the aggregate amount of (a)
moneys remaining in the Project Fund (including investment earnings thereon)
after the Final Project Completion Date which are transferred to the Excess Bond
Proceeds Account of the Bond Fund pursuant to Section 5.03 of the Indenture; (b)
moneys deposited in the Capitalized Interest Account and Capitalized Interest
Reserve Account (including investment earnings thereon) which are transferred to
the Excess Bond Proceeds Account of the Bond Fund pursuant to Sections 5.02A and
5.02B, respectively, of the Indenture; and (c) investment earnings on the Bond
Fund which are applied as provided in Section 5.04 of the Indenture. Upon any
such redemption, the Landlord and Tenant agree to amend the Basic Rent Schedule
set forth in Exhibit H annexed hereto and made a part hereof to appropriately
reflect, on a pro rata basis, the effect of such redemption.
ARTICLE 4. ACQUISITION AND CONSTRUCTION; SUBSTITUTION OF PROPERTIES
Section 4.1. Acquisition and Construction of the Individual Properties.
(a) Each Individual Property shall be acquired or ground
leased, and each Applicable Project shall be constructed and developed, pursuant
to and in accordance with the terms and provisions of the Agency and Development
Agreement.
(b) Concurrently with the acquisition or ground leasing of any
Individual Property by the Landlord, (i) the Landlord and the Tenant shall enter
into a Lease Supplement with respect thereto and (ii) the Landlord shall execute
and deliver the Applicable Mortgage, the Applicable Assignment of Rents and the
Memorandum of Lease.
Section 4.2. Projects Not Completed. If, on or before the Final Project
Completion Date, any Applicable Project has not been completed and accepted for
occupancy, the Tenant shall either:
(a) purchase such Applicable Project on the Final Project
Completion Date from the Landlord for an amount equal to the Uncompleted Project
Purchase Price. Upon receipt of the Uncompleted Project Purchase Price, the
Landlord shall apply such amounts to the redemption of Bonds in accordance with
the terms of the Indenture, and the principal amount available under the Letters
of Credit shall be reduced ratably by the amount of the Uncompleted Project
Purchase Price; or
(b) accept such uncompleted Applicable Project and commence
Rent Payments with respect thereto as if such Applicable Project had been
completed and accepted for occupancy; provided, however, that in the event that
such Applicable Project shall not have been completed and accepted for occupancy
on or before the first anniversary of the Final Project Completion Date, the
Tenant shall purchase such Applicable Project on the first anniversary of the
Final Project Completion Date on the terms and conditions set forth in Section
4.2(a) above.
<PAGE>
Section 4.3. Aggregate Fair Market Value Not Achieved. In the event
that the Aggregate Fair Market Value of the Leased Property shall be less than
$75,000,000 as of the Final Project Completion Date, the Tenant shall either:
(a) On the Final Project Completion Date, make a payment to
the Landlord, as Supplemental Rent, in an amount equal to the amount by which
the Aggregate Fair Market Value of the Leased Property is less than $75,000,000;
or
(b) On the Final Project Completion Date, purchase from the
Landlord each Individual Property the fair market value of which (as determined
by the appraisals delivered by the Tenant to the Landlord and the Agent pursuant
to Section 6(b) of the Agency and Development Agreement and as confirmed
pursuant to Section 7(e)(v) of the Agency and Development Agreement) is less
than the Allocable Costs for such Individual Property. In such event, the
purchase price to be paid by the Tenant to the Landlord for each such Individual
Property shall be an amount equal to the Allocable Costs for such Individual
Property. Upon receipt of such purchase prices, the Landlord shall apply such
amounts to the redemption of Bonds in accordance with the terms of the
Indenture, and the principal amount available under the Letters of Credit shall
be reduced ratably by the aggregate amount of such purchase prices.
Section 4.4. Substitution of Properties.
(a) During the Term, the Tenant shall have the right, with the
prior written consent of the Landlord (not to be unreasonably withheld or
delayed) and the Agent (in accordance with Section 9.06(a)(vii) of the
Reimbursement Agreement), and on the terms and conditions set forth in this
Section 4.4, and subject to the limitations set forth in paragraph (d) of this
Section 4.4, to substitute a Substitute Property for any Individual Property
which is subject to the terms of this Lease at the time of such substitution.
(b) As a condition precedent to the effectiveness of any
substitution of a Substitute Property for an Individual Property, the Tenant
shall deliver to the Landlord, the Agent and the Trustee:
(i) A certificate from an independent certified
public accountant reasonably acceptable to the Landlord and the Agent stating
that the consummation of such substitution will not have a material adverse
effect on the treatment or status of this Lease for tax purposes;
(ii) A certificate, signed by an Authorized
Representative of the Tenant, stating that the fair market value of the
Substitute Property on and as of the effective date of the substitution is
greater than or equal to the fair market value of the Individual Property being
replaced thereby (as determined by the appraisal delivered to the Landlord and
the Agent pursuant to Section 6(b) of the Agency and Development Agreement and
as confirmed pursuant to Section 7(e)(v) of the Agency and Development
Agreement), accompanied by an appraisal of the Substitute Property, prepared (in
accordance with FIRREA and all other regulatory requirements applicable to the
Agent) and certified by an independent MAI appraiser acceptable to the Landlord
and the Agent, setting forth the estimated fair market value of the Substitute
Property on and as of the effective date of such substitution (on an
"as-completed" basis);
<PAGE>
(iii) (A) All of the documents and other items
required to be delivered by the Tenant as a condition to each Land Acquisition
Disbursement pursuant to Section 7(c) of the Agency and Development Agreement as
if the Tenant were requesting a Land Acquisition Disbursement with respect to
the Substitute Property, and (B) all of the documents and other items required
to be delivered by the Tenant as a condition to each Final Disbursement pursuant
to Section 7(e) of the Agency and Development Agreement as if the Tenant were
requesting a Final Disbursement with respect to the Substitute Property; and
(iv) An opinion of counsel reasonably acceptable to
the Landlord and the Agent stating that the substitution of the Substitute
Property for the Individual Property being replaced qualifies as a tax-free like
kind exchange pursuant to Section 1031 of the Internal Revenue Code, and that
such substitution will have no adverse tax consequences for the Landlord.
(c) On the effective date of the substitution:
(i) The Landlord shall acquire, and the Tenant shall
convey, the Substitute Property in the same manner as if such Substitute
Property were acquired by the Landlord prior to the Final Project Completion
Date;
(ii) The Landlord and the Tenant shall enter into a
Lease Supplement with respect to the Substitute Property;
(iii) The Landlord shall convey its interest in and
to the Individual Property being replaced by the Substitute Property to the
Tenant; and
(iv) The Landlord shall execute and deliver to the
Agent an Applicable Mortgage and an Applicable Assignment of Rents with respect
to the Substitute Property.
(d) Notwithstanding anything to the contrary contained in this
Section 4.4, the Tenant shall have no right to substitute more than two (2)
Substitute Properties during any five (5) year period.
Section 4.5. Moneys Remaining in Project Fund. Any moneys in the
Project Fund (including the investment earnings thereon) remaining after the
Final Project Completion Date and after payment, or provision for payment, in
full of the Costs of the Projects and receipt by the Landlord and the Trustee of
the certificate described in Section 7(e)(vi) of the Agency and Development
Agreement, shall be transferred to the Excess Bond Proceeds Account of the Bond
Fund and applied as provided in Section 3.9 and Section 5.03 of the Indenture
upon the prior consent of the Agent, which shall be given by the Agent if at
such time an Event of Default shall not have occurred and be continuing.
Section 4.6. Investment and Use of Fund Moneys. Any moneys held as part
of the Bond Fund or the Project Fund shall be invested or reinvested by the
Trustee in accordance with the terms of the Indenture.
Section 4.7. Ownership of Leased Property.
(a) The Landlord, as between the Landlord and the Tenant,
shall and hereby does retain all of its rights to the Leased Property
notwithstanding the delivery thereof to and possession and use thereof by
Tenant, the rights of Tenant being only those of a tenant as set forth in this
Lease and any Lease Supplement.
<PAGE>
(b) Notwithstanding anything to the contrary contained in this
Lease, any Costs of the Projects paid for by moneys of the Tenant and used to
acquire assets or property constituting a portion of any Applicable Project,
other than Equipment, shall be and become part of the Leased Property, owned by
the Landlord, subject to the Lien of the Applicable Mortgage, and the Tenant
shall have no legal or equitable ownership interest therein.
Section 4.8. Change in Location of Records. The Tenant shall notify the
Landlord and the Agent at least 60 days prior to changing the place at which it
maintains its records with respect to this Lease and any other Transaction
Document, of the address to which such records are to be transferred.
ARTICLE 5. USE
Section 5.1. Use. The Individual Properties comprising the Leased
Property shall be used by the Tenant only as Movie Theaters and uses reasonably
ancillary thereto and for no other use or purpose.
Section 5.2. Prohibited Uses. The Tenant shall not use, or suffer or
permit the use of, the Leased Property or any portion thereof in any manner or
for any purpose or do, bring or keep anything, or suffer or permit anything to
be done, brought or kept, therein or thereon which would (i) violate any
covenant, agreement, term, provision or condition of this Lease or be unlawful
or in contravention of the certificate of occupancy for any Individual Property,
or contravene any Legal Requirement or insurance requirement to which any
Individual Property is subject, except where such violation, contravention or
illegality would not have a material adverse effect on such Individual Property,
(ii) overload or could cause an overload of the electrical or mechanical systems
of any Individual Property or which would exceed the floor load per square foot
which any floor in an Individual Property was designed to carry and which is
allowed by law, (iii) invalidate or conflict with, the fire or public liability
insurance on the Leased Property or (iv) result in any liability on the part of
the Landlord under any Environmental Requirement.
ARTICLE 6. COMPLIANCE WITH LEGAL REQUIREMENTS
Section 6.1. Tenant's Compliance with Legal Requirements. The Tenant
shall, throughout the Term and at the Tenant's sole cost and expense, promptly
comply, or cause compliance: (i) with all Legal Requirements applicable to the
Leased Property, including, without limitation, all Environmental Requirements,
whether present or future, foreseen or unforeseen, ordinary or extraordinary,
and whether or not the same shall be presently within the contemplation of the
Landlord and the Tenant or shall involve any change of governmental policy, or
require structural or extraordinary repairs, alterations, or additions, and
irrespective of the cost thereof, which may be applicable to the Leased Property
or any portion thereof and (ii) with any agreements, contracts, easements and
restrictions affecting the Leased Property or any part thereof or the ownership,
occupancy or use thereof existing on the date hereof or hereafter created by the
Tenant, or consented to or requested by the Tenant.
ARTICLE 7. IMPOSITIONS
Section 7.1. Utilities. The Tenant shall furnish or cause to be
furnished, at its own expense, all utilities of every type and nature required
by it in its use of the Leased Property and shall pay or cause to be paid, when
due, all bills for water, sewerage, heat, gas, electricity and other utilities,
if any, used on, in connection with, or chargeable against the Leased Property
<PAGE>
during the Term and all bills for utility charges relating to the Leased
Property or the use thereof and the Tenant shall indemnify and save harmless the
Landlord, the Agent and the Trustee from and against any loss, cost and expense
in connection therewith. The Tenant shall cause all utilities to be placed in
its name and all bills to be sent directly to the Tenant. The Tenant shall pay
all such bills as and when the same shall be due and payable and upon request of
the Landlord, shall provide evidence of the payment thereof.
Section 7.2. Payment of Impositions. The Tenant covenants to pay
directly to the Person entitled to such payment, before any fine, penalty,
interest or cost may be added thereto for the non-payment thereof, as
Supplemental Rent hereunder, all Impositions. The Tenant shall furnish to the
Landlord, promptly after payment of any Impositions, official receipts or other
satisfactory proof evidencing payment of such Impositions. Upon the Tenant's
failure to pay such Impositions or failure after written request to provide
proof of such payment or failure to deliver any such certificate, as above
provided, the Landlord shall have the right, at the Landlord's option, to
require the Tenant to: (i) promptly deposit with the Trustee, or, if no Bonds
are Outstanding, with the Landlord, funds for the payment of current Impositions
required to be paid by the Tenant hereunder; and (ii) also deposit one-twelfth
(1/12th) of the current annual Impositions or those of the preceding years if
the current amounts thereof have not been fixed, on the first day of each month
in advance, except that all additional funds required for any payments thereof
shall also be deposited as aforesaid on the first day of the final month during
which or at the end of which a payment is due and payable without interest or
penalty.
Section 7.3. Tax Contests. The Tenant shall have the right, at its own
expense, to contest the amount or validity, in whole or in part, of any
Imposition by appropriate proceedings diligently conducted in good faith,
without having to pay such Imposition as a condition to the institution of such
contest unless (i) such payment is required by any Legal Requirement of a
Governmental Authority or (ii) the failure to make such payment would, in the
reasonable judgment of the Landlord, cause any Individual Property to be in
danger of being forfeited, lost or materially affected. Upon the termination of
any proceedings, it shall be the obligation of the Tenant to pay the amount of
such Imposition or part thereof as finally determined in such proceedings, the
payment of which may have been deferred during the prosecution of such
proceedings, together with any costs, fees, interests, penalties or other
liabilities in connection therewith. Nothing herein contained, however, shall be
so construed as to allow such Imposition to remain unpaid for such length of
time as shall permit the Leased Property, or any part thereof, to be sold, taken
or otherwise adversely affected by any Governmental Authority for the
non-payment of the same. The Tenant shall promptly furnish the Landlord with
copies of all proceedings and documents with regard to any such contest, and the
Landlord shall have the right, at its expense, to participate therein. In any
event, the Landlord shall cooperate with the Tenant, at the Tenant's sole cost
and expense, in connection with any such contest.
Section 7.4. Tax Refund. The Landlord shall direct the Agent to remit
to the Tenant any refund of Taxes (as defined in the Reimbursement Agreement)
which are the subject of Section 2.06(c) of the Reimbursement Agreement.
<PAGE>
ARTICLE 8. EXTENSION OPTIONS
Section 8.1. Extension Options. *[material omitted]
Section 8.2. Renewal Rent; Procedure for Determination. *[material
omitted]
Section 8.3. Lease Amendment. Upon final determination of the Renewal
Rent to be paid during any Renewal Term as hereinabove provided, the Landlord
and the Tenant shall enter into an amendment to this Lease to reflect the same
as well as such other modifications of this Lease as mutually shall be deemed
appropriate by the Landlord and the Tenant.
Section 8.4. No Assignment. The extension options contained in this
Article 8 may not be severed from this Lease or separately sold, assigned or
otherwise transferred. Any sale, assignment or transfer or attempted sale,
assignment or transfer of such options separate from this Lease shall be null
and void, ab initio.
Section 8.5. Invalidity. No extension option contained herein shall be
valid unless all prior extension options have been properly exercised.
ARTICLE 9. LANDLORD'S RIGHT OF ENTRY
Section 9.1. Landlord's and Agent's Right of Entry. The Landlord, the
Agent, any Lender and their respective duly authorized representatives shall
have the right to enter any Individual Property at all reasonable times and upon
reasonable notice for the purposes of inspecting the condition of same, and
making such repairs and restorations thereto as may be necessary or desirable if
the Tenant fails to do so as required hereunder (but neither the Landlord nor
the Agent nor any Lender shall have any duty whatsoever to make any such
inspections, repairs, or restorations). Any such inspections, repairs or
restorations to the extent reasonably practicable, shall be conducted in such
manner so as to minimize the interference with the Tenant's business. The costs
so incurred by the Landlord, the Agent or any Lender shall be included within
and constitute part of the Supplemental Rent due by the Tenant and shall be
payable upon demand of the Landlord or the Agent.
ARTICLE 10. MAINTENANCE, REPAIR AND REPLACEMENT BY TENANT
Section 10.1. Maintenance of the Leased Property. The Tenant shall
throughout the Term at the Tenant's sole cost and expense, (a) take good care of
and maintain the Leased Property and all roadways, sidewalks and curbs on and
appurtenant thereto, in good order and repair, and shall promptly remove all
accumulated snow, ice and debris from any and all roadways, sidewalks and curbs
located upon or appurtenant to the Leased Property and (b) fully perform and
comply with all conditions and obligations to be performed and complied with by
the Landlord on and after the date hereof under the Applicable Acquisition
Agreement and the documents and instruments executed and delivered in connection
therewith.
Section 10.2. Repair and Replacement of the Leased Property. The Tenant
shall not commit or suffer to be committed any waste upon or about the Leased
Property, and shall promptly at its sole cost and expense, make all necessary
replacements, restorations and repairs to the Leased Property and appurtenances
thereto, whether interior or exterior, structural or non-structural, ordinary or
- -----------
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
<PAGE>
extraordinary, and foreseen or unforeseen, ordinary wear and tear excepted.
Repairs, restorations and replacements shall be at least equivalent in quality
to the original work or the property replaced, as the case may be. The Tenant
shall not make any claim or demand upon or bring any action against the Landlord
for any loss, cost, injury, damage or other expense caused by any failure or
defect, structural or non-structural, of the Leased Property or any part
thereof.
Section 10.3. Maintenance of Leased Property. The Tenant shall,
throughout the Term, maintain the Leased Property in good operating condition,
normal wear and tear excepted, in a manner comparable to other first run theater
facilities of comparable size and age owned by the Tenant in the same or
comparable markets; provided, however, that the Tenant's liability hereunder at
the end of the Term shall be subject to the terms of Section 3.4(b)(iii).
Section 10.4. Landlord Not Responsible. The Landlord shall not under
any circumstances be required to build any Improvements on any Individual
Property, or to make any repairs, replacements, alterations or renewals of any
nature or description to any Individual Property, whether interior or exterior,
ordinary or extraordinary, structural or non-structural, foreseen or unforeseen
(unless same are directly necessitated by the Landlord's entry onto such
Individual Property pursuant to Article 9), or to make any expenditure
whatsoever in connection with this Lease or to inspect or maintain the Leased
Property or any part thereof in any way. The Tenant hereby waives the right to
require the Landlord to make repairs, replacements, renewals or restorations
pursuant to any Legal Requirements including, without limitation, any
Environmental Requirements.
ARTICLE 11. ALTERATIONS BY TENANT
Section 11.1. Tenant Alterations. The Tenant agrees not to make or
allow to be made any alterations, improvements, additions or physical changes in
or about any Individual Property, other than those constituting part of an
Applicable Project as shown on the Applicable Plans and Specifications or
modifications thereto consented to by the Landlord and the Agent (the
"Alterations"), without first obtaining the written consent of the Landlord and
the Agent in each instance, which consent (A) may be withheld by either the
Landlord or the Agent, each in its sole discretion, if the proposed Alterations
(i) adversely affect the structural components of the Improvements on such
Individual Property, or (ii) reduce the value or utility of the Improvements on
such Individual Property, and (B) in all other cases, shall not be unreasonably
withheld or delayed, but may be given on such reasonable conditions as the
Landlord and the Agent may elect, including but not limited to receipt of
evidence satisfactory to the Landlord and the Agent that the Tenant has adequate
funds to complete such Alterations. Notwithstanding the foregoing, neither the
Agent's nor the Landlord's consent shall be required for any non-structural
Alterations with respect to any Individual Property unless and until the costs
of Alterations at or with respect to such Individual Property for any single
Alteration or series of related Alterations shall exceed $100,000. Any and all
Alterations to any Individual Property shall without further act become the
property of the Landlord and subject to the Lien of the Applicable Mortgage,
except for trade fixtures, movable equipment or furniture owned by the Tenant.
Upon the expiration or termination of this Lease, the Landlord or the Agent may
require the Tenant to remove any and all Alterations for which consent was
required hereunder and which were made without having obtained such consent of
<PAGE>
the Landlord and the Agent as well as all fixtures, equipment and other
improvements installed on such Individual Property other than fixtures,
equipment or other improvements constituting a part of the Applicable Project.
In the event the Landlord or the Agent so elects, and the Tenant fails to remove
such property, the Landlord or the Agent may remove the same at the Tenant's
cost, and the Tenant shall pay the Landlord or the Agent, as the case may be, on
demand all costs incurred in connection therewith. The Tenant shall be
responsible for the cost of repairing all damage to such Individual Property
resulting from the removal of such property, except to the extent arising out of
the gross negligence or willful misconduct of the Landlord or the Agent. The
Tenant's obligations pursuant to this Section 11.1 shall constitute Supplemental
Rent and shall survive the expiration or sooner termination of this Lease and
the Reimbursement Agreement.
Section 11.2. Construction of Alterations. With respect to any
Alterations for which the consent of the Landlord and the Agent is required
hereunder, the Tenant shall submit to the Landlord and the Agent, at the time of
its request for the Landlord's and the Agent's consent to any proposed
Alteration, plans and specifications (including layout, architectural,
mechanical and structural drawings) for such proposed Alteration. All permits,
approvals and certificates required by all Governmental Authorities shall be
timely obtained by the Tenant at the Tenant's expense and submitted to the
Landlord and the Agent (the Landlord shall not unreasonably refuse to join in
any application therefor provided that such joinder shall be without expense to
the Landlord and further provided that the Landlord's joinder is required by
such Governmental Authority). Notwithstanding the Landlord's and the Agent's
approval of plans and specifications for any Alteration, all Alterations shall
be designed by the Tenant and shall be made to be in full compliance with all
applicable Legal Requirements; all construction shall be of good and workmanlike
quality in conformance with the plans and specifications therefor; all materials
and equipment to be incorporated into an Individual Property as a result of all
Alterations shall be of first class quality; and no such materials or equipment
shall be subject to any Lien, chattel mortgage or title retention or security
agreement. All Alterations shall be performed by the Tenant at the Tenant's sole
expense. Upon completion of any Alterations, the Tenant shall provide the
Landlord and the Agent with as-built plans depicting said Alterations.
ARTICLE 12. ASSIGNMENT AND SUBLETTING
Section 12.1. Restrictions on Assignment and Subletting.
(a) The Tenant expressly covenants and agrees that it shall
not grant or suffer to permit or exist by operation or law or otherwise a Lien
with respect to the Tenant's interest in this Lease. Further, the Tenant
expressly covenants that it will not by operation of law or otherwise assign
this Lease, in whole or in part, nor sublet or suffer or permit the Leased
Property or any part thereof to be used by others, without the prior written
consent of the Landlord and the Agent in each instance, which consent may be
granted or withheld in the sole and absolute discretion of the Landlord and the
Agent; provided, however, that the Tenant shall have the right, without the
Agent's or the Landlord's consent, to assign or sublet all or any portion of
this Lease or the Leased Property to any Subsidiary of the Tenant; provided
further, however, that no such assignment or subletting shall release the Tenant
from any of its obligations under this Lease. Any attempt by the Tenant without
the Landlord's and the Agent's prior written consent to assign this Lease or to
sublet the Leased Property or a portion thereof shall be null and void. The
Tenant shall not assign this Lease or sublet all or any portion of the Leased
Property to any party with diplomatic immunity or otherwise not amenable to
service of process in any Applicable State.
<PAGE>
(b) If the Tenant's interest in this Lease is assigned or if
the Leased Property or any part thereof is sublet to, or occupied by, or used
by, anyone other than the Tenant, whether or not in violation of this Article
12, the Landlord may, after default by the Tenant, accept from any assignee,
sublessee or anyone who claims a right to the interest of the Tenant under this
Lease, or who occupies any part(s) or the whole of the Leased Property, the
payment of Basic Rent and Supplemental Rent or any portion thereof and/or the
performance of any of the other obligations of the Tenant under this Lease, but
such acceptance shall not be deemed to be a waiver by the Landlord of the breach
by the Tenant of the provisions of this Article 12, nor a recognition by the
Landlord that any such assignee, sublessee, claimant or occupant has succeeded
to the rights of the Tenant hereunder, nor a release by the Landlord of the
Tenant from further performance by the Tenant of the covenants on the Tenant's
part to be performed under this Lease; provided, however, that the net amount of
Basic Rent and Supplemental Rent collected from any such assignee, sublessee,
claimant or occupant shall be applied by the Landlord to the Basic Rent and
Supplemental Rent to be paid hereunder.
(c) The Tenant agrees to pay as Supplemental Rent to the
Landlord or the Agent all fees, costs and expenses, including, but not limited
to reasonable attorneys' fees and disbursements, incurred by the Landlord or the
Agent in connection with any proposed assignment of this Lease and any proposed
sublease of the Leased Property or any part thereof.
(d) In the event that EastWynn shall become the Borrower under
the Credit Agreement at any time, the Tenant shall cause EastWynn to
simultaneously unconditionally guarantee the payment and performance by the
Tenant of its obligations under this Lease, such guarantee to be in form and
substance reasonably satisfactory to the Agent.
Section 12.2. Procedure; Requirements.
(a) If the Tenant requests the Landlord's and the Agent's
consent to an assignment of this Lease or a subletting of all or any part of the
Leased Property (for any assignment or subletting which is not otherwise
permitted hereby), the Tenant shall submit to each of them: (i) the name of the
proposed assignee or subtenant; (ii) the terms of the proposed assignment or
subletting; (iii) the nature of the proposed assignee or subtenant's business
and its proposed use of the Leased Property; (iv) such information as to the
financial responsibility and general reputation of the proposed assignee or
subtenant as the Landlord or the Agent may reasonably require; (v) a summary of
plans and specifications, if any, for revising the floor layout of the Leased
Property; and (vi) such other information deemed relevant by the Landlord or the
Agent in its sole discretion.
(b) Upon the receipt of all requested information from the
Tenant, each of the Landlord and the Agent shall within thirty (30) days after
such receipt, advise the Tenant whether it approves or disapproves of such
request to assign or sublease. If the Landlord or the Agent shall fail to so
advise the Tenant prior to the expiration of the thirty (30) day period provided
for in this Section 12.2(b), the Landlord or the Agent, as the case may be,
shall be deemed to have approved the proposed assignment or subletting.
<PAGE>
(c) If the consent to an assignment pursuant to a request from
the Tenant required hereunder and under the Transaction Documents has been
obtained, the Tenant shall cause to be executed by its assignee an agreement
that such assignee shall perform faithfully and assume and be bound by all of
the terms, covenants, conditions, provisions and agreements of this Lease and
that this Lease shall not be subject to further assignment or subletting except
upon compliance with the provisions of this Article 12. If consent to a sublease
shall have been obtained pursuant to the requirements hereof and of the
Transaction Documents, the sublease shall expressly provide that it is subject
to all of the terms and conditions of this Lease and the Security Documents,
that the subtenant shall not violate any of such terms or conditions and at the
option of the Landlord, in the event of the termination of this Lease, the
subtenant will attorn to the Landlord. The subtenant shall also execute an
agreement acknowledging that the portion of the Leased Property sublet shall not
be subject to further subletting without compliance with the provisions of this
Article 12. An executed counterpart of each sublease or assignment and
assumption of performance by the assignee, in form and substance approved by the
Landlord, shall be delivered to the Landlord and the Agent at least five (5)
days prior to the effective date set forth in such assignment or sublease. No
such assignment or sublease shall be binding on the Landlord until the Landlord
has received such counterpart as required herein.
(d) If consent to an assignment of this Lease or to any
sublease shall have been obtained, the Tenant shall in consideration therefor
pay to the Trustee, for the account of the Landlord, as Supplemental Rent, the
following amounts, less the actual expenses incurred by the Tenant in connection
with such assignment or subletting including reasonable legal fees, brokerage
commissions to persons not affiliated with the Tenant and costs of making
alterations, as the case may be:
(i) in the case of an assignment, an amount equal to
all sums and other considerations paid to the Tenant by the assignee for or by
reason of such assignment; and
(ii) in the case of a sublease, all rents, additional
charges or other consideration payable under the sublease to the Tenant by the
subtenant which are in excess of the Basic Rent and Supplemental Rent accruing
during the term of the sublease in respect of the subleased space (at the rate
per square foot payable by the Tenant hereunder) pursuant to the terms hereof.
All sums described in clauses (i) and (ii) of this Section 12.2(d) shall be paid
to the Trustee as Supplemental Rent if, as and when paid by the assignee or
subtenant to the Tenant and applied equally on the earliest permissible date to
the redemption of the Bonds.
Section 12.3. No Release from Liability. In no event shall any
assignment or subletting release or relieve the Tenant from its obligations to
fully observe or perform all of the terms, covenants and conditions of this
Lease (including the obligation to pay Rent) on its part to be observed or
performed and the fact that the Landlord and the Agent may consent to any
assignment or subletting or be deemed to have so consented shall not be
construed as constituting such a release of the Tenant. No assignment or
sublease made as permitted by this Article 12 shall affect or reduce any of the
obligations (including the obligation to pay Rent) of the Tenant hereunder, and
all such obligations shall continue as obligations (including the obligation to
pay Rent) of the Tenant in full force and effect as obligations of a principal
and not as obligations of a guarantor or surety, to the same extent as though no
<PAGE>
assignment or subletting had been made; provided that performance by any such
assignee or sublessee of any of the obligations of the Tenant under this Lease
shall be deemed to be performance by the Tenant. No sublease or assignment made
as permitted by this Article 12 shall impose any obligations on the Landlord
other than those set forth herein or otherwise affect any of the rights of the
Landlord under this Lease.
Section 12.4. No Waiver. The consent by the Landlord or the Agent to
any one assignment or subletting shall not be deemed to be a consent to any
further or future assignment or subletting.
ARTICLE 13. SURRENDER
Section 13.1. Surrender of Premises. Upon the Expiration Date, or
sooner termination of this Lease, the Tenant shall peaceably and quietly quit
and surrender to the Landlord the Leased Property, broom clean. Each Individual
Property comprising the Leased Property shall be in as good condition as on the
Applicable Completion Date, except for normal wear and tear, free and clear of
tenants and occupants and with all of the Tenant's Equipment and other personal
property removed and, to the extent required by the Landlord in accordance with
the terms of Article 11 of this Lease, with Alterations restored and deliver all
drawings, schedules and similar papers relating to the Applicable Project then
in the possession of the Tenant or any Affiliate of the Tenant and necessary or
useful for the continued operation and maintenance of the Leased Property, and
the Tenant shall pay the Deferred Maintenance Obligation pursuant to Section
3.4(b)(iii). Upon such surrender, the Leased Property shall be in compliance
with all Legal Requirements, including, without limitation, all Environmental
Requirements. The Tenant's obligation to observe or perform this covenant shall
survive the Expiration Date or sooner termination of this Lease. Nothing in this
Article 13 shall limit, negate or otherwise affect the Tenant's right to
purchase the Leased Property in accordance with the terms of Article 15.
ARTICLE 14. HOLDING OVER
Section 14.1. Holding Over. If the Tenant holds over possession of the
Leased Property or any part thereof beyond the Expiration Date or sooner
termination of this Lease, such holding over shall not be deemed to extend the
Term or renew this Lease but such holding over shall continue upon the terms,
covenants and conditions of this Lease as a tenant at will except that the
Tenant agrees that the charge for use and occupancy of the applicable portion of
the Leased Property for each calendar month or portion thereof that the Tenant
holds over shall be a liquidated amount equal to one-twelfth (1/12th) of 1.5
times the Basic Rent and Supplemental Rent required to be paid by the Tenant for
such portion of the Leased Property during the calendar year preceding the
Expiration Date or sooner termination of this Lease multiplied by a fraction,
the numerator of which shall be the number of days of such month during which
the Tenant was in possession of such portion of the Leased Property and the
denominator of which shall be the total number of days of such month. The
parties recognize and agree that the damage to the Landlord resulting from any
failure by the Tenant to timely surrender possession of the Leased Property will
be extremely substantial, will exceed the amount of the monthly Basic Rent and
Supplemental Rent payable hereunder and will be impossible to accurately
measure. If the Leased Property is not surrendered upon the Expiration Date or
sooner termination of this Lease, in addition to the use and occupancy charge
set forth above, the Tenant shall indemnify and hold harmless the Landlord
<PAGE>
against any and all losses and liabilities resulting therefrom, including,
without limitation, any claims made by any succeeding tenant founded upon such
delay. Nothing contained in this Lease shall be construed as a consent by the
Landlord to the occupancy or possession by the Tenant of the Leased Property
beyond the Expiration Date or sooner termination of this Lease, and the
Landlord, upon said Expiration Date or sooner termination of this Lease, or at
any time thereafter (and notwithstanding that the Landlord may accept from the
Tenant one or more payments called for by this Section 14.1), shall be entitled
to the benefit of all legal remedies that now may be in force or may be
hereafter enacted relating to the immediate repossession of the Leased Property.
The provisions of this Article shall survive the Expiration Date or sooner
termination of this Lease. Nothing in this Article 14 shall limit, negate or
otherwise affect the Tenant's right to purchase the Leased Property in
accordance with the terms of Article 15.
ARTICLE 15. PURCHASE OPTION
Section 15.1. Purchase Option. The Tenant is hereby granted an option
to purchase on the Expiration Date all, but not less than all, of the Individual
Properties comprising the Leased Property, upon the following terms and
conditions:
(a) The option may be exercised not earlier than three hundred
sixty (360) days nor later than two hundred seventy (270) days prior to the
Expiration Date of the Initial Term by notice, as defined herein, to the
Landlord and the Agent. Time shall be of the essence with respect to the
exercise of this purchase option. The option shall apply only to the Expiration
Date of the Initial Term, and not to the Expiration Date of any Renewal Term.
(b) The purchase price for the Leased Property in accordance
with this option, shall be determined as set forth in Section 15.2 below.
(c) This purchase option may not be severed from this Lease or
separately sold, assigned or otherwise transferred. Any such sale, assignment or
transfer or attempted sale, assignment or transfer in violation of the previous
sentence shall be null and void, ab initio.
(d) The Tenant's exercise of this purchase option shall have
no effect on any obligations of the Tenant hereunder nor grant the Tenant any
equitable interest in the Leased Property until the closing of the purchase
pursuant to Section 21.2.
(e) The Landlord shall be entitled to pay and satisfy any
existing liens and encumbrances out of the proceeds of sale received by the
Landlord at closing of title.
(f) The Leased Property shall be conveyed "as is" in its
condition as of closing of title. In addition, there shall be no abatement or
diminution of said purchase price by reason of any fire, casualty or other
damage affecting the Leased Property or any part thereof after the exercise of
this purchase option and prior to closing of title. The Landlord shall, on
closing of title, credit the Tenant with any insurance proceeds received and
retained by the Landlord under insurance policies covering such damage (and not
attributable to the Tenant's lease obligations) and assign to the Tenant all of
the Landlord's rights under any insurance policies covering damage to the Leased
Property.
<PAGE>
Section 15.2. Purchase Price; Calculation.
(a) The purchase price for the Leased Property if the purchase
option is exercised by the Tenant as provided herein shall be the Fair Market
Value *[material omitted]
Section 15.3. Procedure. The procedure governing the purchase of the
Leased Property by the Tenant pursuant to this purchase option is set forth in
Article 21 hereof.
Section 15.4. Subperforming Theater Purchase Option.
(a) The Tenant shall have the right, subject to the provisions
of this Section 15.4, to purchase from the Landlord at any time any
Subperforming Theater Property. Such right may be exercised by the Tenant upon
at least 90 days' prior written notice to the Landlord and the Agent. Such
notice shall be accompanied by a certificate of the chief financial officer of
the Tenant, certified to the Landlord and the Agent, stating that such
Subperforming Theater Property meets the definition of "Subperforming Theater
Property" as set forth herein, together with such financial statements and other
documentation supporting or substantiating same as shall be reasonably
acceptable to the Landlord and the Agent.
(b) The purchase price payable by the Tenant for any
Subperforming Theater Property shall be the greater of (i) the unamortized
Allocable Costs attributed to such Subperforming Theater Property and (ii) the
fair market value of such Subperforming Theater Property as of the date of such
purchase, as such fair market value shall be determined by an appraisal (dated
not earlier than 120 days prior to such purchase date) prepared and certified by
an independent MAI appraiser acceptable to the Landlord and the Agent and
submitted to the Landlord and the Agent together with the notice referred to in
Section 15.4(a) above.
(c) In no event shall the Tenant have the right to exercise
the purchase option in this Section 15.4 unless no Event of Default shall have
occurred and be continuing either at the time of the notice set forth in Section
15.4(a) or at the time of the closing of such purchase.
(d) The provisions of Sections 15.1(c), (d) (provided,
however, that it is understood and agreed that the exercise by the Tenant of its
purchase option pursuant to this Section 15.4 may result in a reduction of the
amount of Rent payable by the Tenant hereunder), (e) and (f) above shall apply
with respect to the option granted by this Section 15.4.
Section 15.5. Purchase Upon Casualty Loss.
(a) Upon the occurrence of any of the following events, the
Tenant shall have the option, subject to the provisions of this Section 15.5, to
purchase the affected Individual Property at a price equal to the Stipulated
Loss Value:
(i) the Improvements on or with respect to any
Individual Property shall have been damaged or destroyed to such an extent that
(A) they cannot reasonably be expected by the Tenant to be restored, within a
period of six months, to the condition thereof immediately preceding such damage
or destruction or (B) their normal use and operation is reasonably expected by
the Tenant to be prevented for a period of six months or more; or
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* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
<PAGE>
(ii) Title to, or the temporary use of, all or a
significant part of any Individual Property shall have been taken under the
exercise of the power of eminent domain (A) to such extent that such Individual
Property cannot reasonably be expected by the Tenant to be restored within a
period of six months to a condition of usefulness comparable to that existing
prior to the taking or (B) as a result of the taking, normal use and operation
of such Individual Property is reasonably expected by the Tenant to be prevented
for a period of six consecutive months or more.
(b) To exercise such purchase option, the Tenant shall, within
90 days following the event giving rise to the exercise of the option, give
notice to the Landlord, the Agent and the Trustee specifying the date on which
the Tenant will deliver or cause to be delivered the Stipulated Loss Value,
which date shall be not more than 90 days from the date such notice is mailed.
(c) The proceeds of any purchase by the Tenant hereunder shall
be applied by the Landlord, as provided in Section 19.3(c).
Section 15.6. Conveyance of Title. Upon the payment of the Stipulated
Loss Value, the Landlord shall convey title to such Individual Property to the
Tenant in accordance with the provisions of Article 21.
Section 15.7. Special Right of Termination and Purchase. *[material
omitted]
ARTICLE 16. PREMISES SUBJECT TO SECURITY DOCUMENTS QUIET ENJOYMENT
Section 16.1. Quiet Enjoyment. The Leased Property shall be subject to
the Liens of the Applicable Mortgages. This Lease shall be subject and
subordinate to the Liens of the Indenture and the Applicable Mortgages and the
Applicable Assignments of Rents, but neither the Landlord nor any Person
deriving or claiming rights through, under or from Landlord shall, so long as no
Event of Default shall have occurred and be continuing and subject to the terms
of this Section 16.1, take any action contrary to the Tenant's rights under this
Lease to the use, quiet enjoyment and possession of the Leased Property. So long
as no Event of Default shall have occurred and be continuing, if the Tenant pays
the Rent it is obligated hereunder to pay, and observes all other terms,
covenants and conditions thereof, it may peaceably and quietly have, hold and
enjoy the Leased Property during the Term, subject, however, to all the terms of
this Lease. No failure by the Landlord to comply with the foregoing covenant
shall give the Tenant any right to cancel or terminate this Lease or to abate,
reduce or make any deduction from or offset against any Rent or any other sum
payable under this Lease, or to fail to perform any other obligations of the
Tenant hereunder; provided, however, that the Tenant shall retain all other
remedies available under this Lease or by law by reason of a breach of such
covenant; provided further, however, that the rights of the Tenant hereinabove
in this Section 16.1 described shall be subject and subordinate in all respects
to the rights and remedies of the Agent in the Security Documents upon the
occurrence of an event of default under the Reimbursement Agreement. Each
Individual Property comprising the Leased Property is demised and let subject to
(a) the existing state of the title thereto as of the Individual Commencement
Date, (b) any state of facts which an accurate survey or physical inspection
thereof might show, (c) all zoning regulations, restrictions, rules and
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* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
<PAGE>
ordinances, building restrictions and other laws and regulations now in effect
or hereafter adopted by any Governmental Authority, (d) the condition of any
buildings, structures and other improvements located thereon, as of the
Individual Commencement Date, without representation or warranty by the Landlord
and (e) the Lien of the Security Documents, subject only to the first sentence
of this Section 16.1. By its execution and delivery of each Lease Supplement,
the Tenant shall be deemed to have examined the title to and the condition of
the Supplemental Property which is the subject of such Lease Supplement and to
have accepted same as satisfactory to it.
ARTICLE 17. EVENTS OF DEFAULT, REMEDIES
Section 17.1. Events of Default. An Event of Default hereunder means
the occurrence of any one or more of the following events:
(a) The Tenant fails to:
(i) make any Basic Rent Payment when due; or
(ii) [Intentionally Omitted]; or
(iii) make any Supplemental Rent Payment (other than
any payment pursuant to Section 4.3) when due and in accordance with the Payment
Direction Agreement and such failure continues for five (5) Business Days after
the date such payment is due; or
(iv) [Intentionally Omitted]; or
(v) subject to the provisions of Section 17.9 below,
renew the Letters of Credit, or provide Alternate Letters of Credit, in
accordance with the terms of this Lease; or
(b) Breach by the Tenant of any of the covenants contained in
Sections 2.1(a)(iii), 2.1(s)(x), 2.1(t), 2.1(u), 2.1(v), 2.1(w), 2.1(x), 2.1(z),
4.3 or the first sentence of Section 22.1(a); or
(c) Any Obligation of the Tenant other than those described in
Sections 17.1(a) and (b) is not performed and discharged as and when required,
and the failure, refusal or neglect to perform and discharge such Obligation
continues for a period of thirty (30) days after the Tenant has been given
notice thereof or such shorter period and without notice if so specified in any
other provision of this Lease; or
(d) Any representation or warranty made by the Tenant herein,
in any Transaction Document to which it is a party or any certificate, statement
or other instrument delivered by the Tenant hereunder or thereunder, shall prove
to be false or misleading in any material respect when made; or
(e) The Tenant becomes insolvent or fails, or admits in
writing its inability, to pay its debts as they mature or applies for, consents
to, or acquiesces in the appointment of a trustee, receiver or custodian for the
Tenant or a substantial part of its property; or in the absence of such
application, consent or acquiescence, a trustee, receiver or custodian is
appointed for the Tenant or a substantial part of its property and is not
discharged within sixty (60) days; or any bankruptcy, reorganization, debt
<PAGE>
arrangement, moratorium or any case or proceeding under bankruptcy or insolvency
law, or any dissolution or liquidation proceeding, is instituted by or, if
permitted by law, against the Tenant and, if instituted against the Tenant, is
consented to or acquiesced in by the Tenant or is not dismissed within sixty
(60) days, or if an "order for relief" is entered at any time in any such case
under the Bankruptcy Code; or
(f) The entering of an order or decree appointing a receiver
for the Leased Property or for any part thereof or for the revenues thereof with
the consent or acquiescence of the Tenant or the entering of such order or
decree without the acquiescence or consent of the Tenant and such order or
decree shall not be vacated, discharged or stayed within sixty (60) days after
the date of such entry; or
(g) An Event of Default shall occur under the Credit
Agreement; or
(h) [INTENTIONALLY OMITTED]; or
(i) Any performance bonds required to be delivered under any
Applicable Construction Agreement shall not have been so delivered when due and
such failure shall have continued for thirty (30) days.
(j) The Tenant or any Restricted Subsidiary shall fail to make
any payment in respect of Debt or Off-Balance Sheet Lease in an aggregate amount
in excess of $3,000,000 outstanding when due or within any applicable grace
period; or
(k) Any event or condition shall occur which results in the
acceleration of the maturity of Debt or any Off-Balance Sheet Lease in an
aggregate amount in excess of $3,000,000 outstanding of the Tenant or any
Restricted Subsidiary or the mandatory prepayment or purchase of such Debt or
any Off-Balance Sheet Lease by the Tenant (or its designee) or such Restricted
Subsidiary (or its designee) prior to the scheduled maturity thereof, or enables
the holders of such Debt or any Off-Balance Sheet Lease or any Person acting on
such holders' behalf to accelerate the maturity thereof or require the mandatory
prepayment or purchase thereof prior to the scheduled maturity thereof, without
regard to whether such holders or other Person shall have exercised their right
to do so; or
(l) One or more judgments or orders for the payment of money
in an aggregate amount in excess of $500,000 shall be rendered against the
Tenant or any Restricted Subsidiary and such judgment or order shall continue
unsatisfied and unstayed for a period of 30 days; or
(m) A federal tax lien shall be filed against the Tenant under
Section 6323 of the Code or a lien of the PBGC shall be filed against the Tenant
or any Restricted Subsidiary under Section 4068 of ERISA and in either case such
lien shall remain undischarged for a period of 25 days after the date of filing;
or
(n) There occurs a Change of Control.
Upon the occurrence of an Event of Default hereunder, all obligations of the
Tenant under this Lease shall remain in full force and effect.
Section 17.2. Tenant Obligations on Default. Upon the occurrence of an
Event of Default as described in Section 17.1 hereof, the Tenant shall
immediately:
<PAGE>
(a) prepay all Rent due and to become due hereunder in an
amount equal to one hundred ten (110%) percent of the Unamortized Total Project
Cost; or
(b) cause one or more Persons to purchase, on terms which are
satisfactory to the Landlord in all respects, all, but not less than all, of the
Individual Properties comprising the Leased Property for an aggregate purchase
price of not less than one hundred ten (110%) percent of the Unamortized Total
Project Cost.
Section 17.3. Landlord Remedies. Upon the occurrence of an Event of
Default as described in Section 17.1 hereof, the Landlord shall have the right,
without any further demand or notice, to take one or any combination of the
remedial steps below:
(i) With or without terminating this Lease, re-enter
and take possession of the Leased Property or any part thereof and exclude the
Tenant from using it; provided that the Tenant shall continue to be responsible
for the Rent Payments due during the remainder of the Term; or
(ii) With or without terminating this Lease, re-enter
and take possession of the Leased Property or any part thereof and sell or lease
its interest in the Leased Property or any part thereof; or
(iii) With or without terminating this Lease, (A)
transmit written notice to the Trustee of the occurrence and continuance of an
Event of Default under this Lease and (B) declare all Rent Payments to be
immediately due and payable by the Tenant, whereupon such amounts shall, subject
to Section 17.2 above, be immediately due and payable; or
(iv) Take whatever action at law or in equity may
appear necessary or desirable to collect the Rent Payments then due and
thereafter to become due with respect to the Leased Property or enforce
performance and observance of any obligation, agreement or covenant of the
Tenant under this Lease; or
(v) Perform the Obligations of the Tenant which gave
rise to the existence of the Event of Default, in which event the Tenant shall
be obligated to reimburse to the Landlord or the Agent all expenses incurred by
the Landlord or the Agent as the result of the performance by the Landlord or
the Agent of the Obligations of the Tenant together with interest thereon at the
rate then in effect for the applicable Series of Bonds from the date of
expenditure; or
(vi) Exercise the rights, powers and remedies
described in Section 32.15(b)(v).
Section 17.4. Election of Remedies; No Waiver of Elected Remedies. No
failure on the part of either Party to exercise, and no delay in exercising any
right or remedy so provided for herein, shall operate as a waiver thereof, nor
shall any single or partial exercise by either Party of any right or remedy so
provided hereunder preclude any other or further exercise of any other right or
remedy provided hereunder.
<PAGE>
Section 17.5. No Additional Waiver Implied by One Waiver. In the event
any agreement contained in this Lease should be breached by either Party and
thereafter waived by the other Party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder, and shall not be construed to be an implied term hereof or a course
of dealing between the parties hereto.
Section 17.6. Agreement to Pay Attorneys' Fees and Expenses. If a
Default shall exist under any of the provisions hereof and the Landlord or the
Agent should employ attorneys or incur other expenses for the collection of
moneys or the enforcement or performance or observance of any obligation or
agreement on the part of the Tenant herein contained, the Tenant agrees that it
will on demand therefor pay to the Landlord or the Agent the reasonable fee of
such attorneys and such other expenses so incurred by the Landlord or the Agent.
Section 17.7. Late Charges. Whenever any payment of Rent is not made
when due, the Tenant promises to pay the Landlord, in addition to the amount
due, interest thereon at the rate then in effect for the applicable Series of
Bonds; provided, however, that this Section 17.7 shall not be applicable if or
to the extent that the application thereof would affect the validity of this
Lease.
Section 17.8. Delay; Notice. No delay or omission to exercise any right
or power accruing upon any default shall impair any such right or power or shall
be construed to be a waiver thereof, but any such right or power may be
exercised from time to time and as often as may be deemed expedient, and any one
exercise thereof shall not be deemed an exclusive exercise. To entitle the
Landlord to exercise any remedy reserved to it in this Lease, it shall not be
necessary to give any notice other than as may be specifically required in this
Lease.
Section 17.9. Conversion to Fixed Rate. Pursuant to the terms of the
Indenture, the Bonds are subject to conversion to a fixed rate of interest in
the event that the Tenant achieves an investment grade rating from the Rating
Agencies, all as more particularly described in the Indenture. Notwithstanding
anything to the contrary contained herein, the Tenant's failure to renew the
Letters of Credit, or provide an Alternate Letters of Credit, in accordance with
the terms of this Lease shall not constitute an Event of Default hereunder in
the event that the interest rate on the Bonds is converted to a fixed rate
pursuant to the Indenture prior to the expiration of the Letters of Credit or
Alternate Letters of Credit, as the case may be.
ARTICLE 18. SUBORDINATION AND ESTOPPEL
Section 18.1. Subordination of Lease. This Lease and all rights of the
Tenant hereunder are subject and subordinate at all times to all of the
Applicable Mortgages, whether existing on and as of the date hereof or hereafter
executed and delivered by the Landlord to the Agent, and all renewals,
modifications, consolidations, replacements and extensions thereof (collectively
and including the Security Documents, "Secured Interests"). Tenant acknowledges
that such assignments and security interests provide for the exercise by the
Agent of all rights, other than Reserved Rights, of Landlord hereunder to give
any consents, approvals, waivers, notices or the like, to make any elections,
demands or the like or to take any other discretionary action hereunder,
including the exercise of remedies, except as specifically set forth in the
Applicable Mortgages. To the extent, if any, that this Lease constitutes chattel
paper (as such term is defined in the Uniform Commercial Code as in effect in
<PAGE>
any Applicable State), no security interest in this Lease may be created through
the transfer or possession of any counterpart of this Lease other than the
original counterpart, which shall be identified as the counterpart containing
the receipt therefor executed by Agent on or immediately following the signature
page thereof. This clause shall be self-operative and no further instrument or
subordination shall be required by the Agent. In confirmation of such
subordination, the Tenant shall execute promptly any reasonable instrument that
the Landlord may request. The Tenant further agrees at the option of the Agent
to attorn to the holder of any Secured Interest following the foreclosure of
such Secured Interest or the granting of a deed in lieu thereof.
Section 18.2. [Intentionally Omitted].
Section 18.3. Estoppel Certificate. The Tenant shall at any time and
from time to time within ten (10) days of receipt of written request therefor by
the Landlord or the Agent, execute, acknowledge and deliver to the Landlord and
the Agent an estoppel certificate, in form reasonably satisfactory to the
Landlord and the Agent, certifying (i) that this Lease is unmodified and in full
force and effect (or, if there have been modifications, that the same is in full
force and effect as modified and stating the modifications), (ii) the dates to
which Basic Rent and Supplemental Rent have been paid in advance, if any, (iii)
whether any extension options granted to the Tenant pursuant to the provisions
of this Lease have been exercised, (iv) whether or not to the best knowledge of
the signer, the Landlord is in default in performance of any of its obligations
under this Lease, and if so, specifying each such default of which the Tenant
may have knowledge, (v) whether the Tenant has received notice that it is in
default in performance of any of its obligations under this Lease, and if so,
specifying each such default and (vi) as to any other matters reasonably
requested by the Landlord, it being intended that any such certificate delivered
pursuant to this Section 18.3 may be relied upon by a prospective purchaser of
the Landlord's interest or a mortgagee of the Landlord's interest or assignee of
any Applicable Mortgage of the Landlord's interest in the Leased Property or any
other party which the Landlord wishes to receive said estoppel certificate.
ARTICLE 19. DAMAGE, DESTRUCTION AND CONDEMNATION; USE OF NET PROCEEDS
Section 19.1. Damage and Destruction.
(a) If any of the Improvements or any portion thereof located
on or at any Individual Property is destroyed or is damaged by fire or other
casualty, the Tenant shall have the option either (i) to promptly repair,
restore, modify, improve or replace the Improvements, in which event the Tenant
shall be obligated to continue to pay the Rent due hereunder; or (ii) if the
damage or destruction is of the extent described in Section 15.5, and the amount
of Net Proceeds is sufficient to pay the Allocable Costs with respect to such
Individual Property, to exercise its option set forth in Section 15.5.
(b) Any Net Proceeds shall be paid to the Trustee and
deposited in the Project Fund to be disbursed as set forth in the Indenture. In
the event the Tenant elects to repair, restore, modify, improve or replace the
Improvements pursuant to clause (a)(i) above, any Net Proceeds shall be applied
to pay the cost of such repair, restoration, modification or replacement. In the
event the Tenant elects to prepay the Rent and cause the optional redemption of
the Bonds in accordance with clause (a)(ii) above and Section 15.5, any Net
Proceeds shall be credited against the Tenant's Rent prepayment obligations and
applied to the redemption of the Bonds. To the extent that the amount of the Net
Proceeds deposited in the Project Fund exceed the amount required to be
disbursed therefrom by the Trustee pursuant to this Section, one hundred (100%)
<PAGE>
percent of such excess amount shall be paid by the Trustee from the Project Fund
to the Agent to be held by the Agent in the Net Proceeds Collateral Reserve
Account pursuant to Section 5.15 of the Reimbursement Agreement. When all
Reimbursement Obligations payable under the Reimbursement Agreement and
Reimbursement Notes have been paid in full, the Letters of Credit are no longer
outstanding and the balance of the Preferred Member's Unrecovered Capital
Account has been reduced to zero, the Agent shall immediately pay any such
amounts remaining in the Net Proceeds Collateral Reserve Account to the Landlord
to be held by the Landlord in the Reserve Fund for disbursement in accordance
with Section 19.7 hereof.
Section 19.2. Net Proceeds.
(a) If the Net Proceeds are insufficient to pay in full the
cost of any repair, restoration, modification, improvement or replacement of the
Improvements and the damage or destruction is not of the extent or nature
described in Section 15.5, the Landlord shall make available to the Tenant any
amounts on deposit in the Reserve Fund and cause the Agent to make available any
amounts on deposit in the Net Proceeds Collateral Reserve Account in an amount
equal to the cost in excess of the Net Proceeds. If the Net Proceeds, together
with any amounts available from the Reserve Fund and/or the Net Proceeds Reserve
Account, are insufficient to pay in full the cost of any repair, restoration,
modification, improvement or replacement of the Improvements and the damage or
destruction is not of the extent or nature described in Section 15.5, the Tenant
shall complete the work and pay any cost in excess of the amount of the Net
Proceeds. If by reason of any such insufficiency of the Net Proceeds, the Tenant
shall make any payments pursuant to the provisions of this Section 19.2, the
Tenant shall not be entitled to any reimbursement therefor from the Landlord nor
shall the Tenant be entitled to any diminution of the Rent Payments due with
respect to the Leased Property nor shall Tenant have any legal or equitable
ownership interest in the property acquired with moneys provided Tenant and
utilized in such repair, restoration, modification or replacement.
(b) In the event that the Tenant exercises its option to pay
Stipulated Loss Value and cause the optional redemption of the Series A Bonds
pursuant to Section 15.5, one hundred (100%) percent of any surplus proceeds,
after payment of the Stipulated Loss Value and other amounts set forth in
Section 15.5, from any of the insurance policies, shall be paid by the Trustee
from the Project Fund to the Agent to be held by the Agent in the Agent Reserve
Fund created pursuant to the Reimbursement Agreement. When no Series A Bonds are
Outstanding and all Reimbursement Obligations payable under Section 2.01(e)(i)
of the Reimbursement Agreement have been paid in full, the Agent shall
immediately pay any amounts remaining in the Agent Reserve Fund (i) fifty (50%)
to the Landlord and (ii) fifty (50%) to be held by the Landlord in the Reserve
Fund.
Section 19.3. Total and Partial Taking.
(a) If at any time during the Term, the whole or substantially
all of any Individual Property shall be taken for or under threat of public or
quasi-public purposes by any lawful power or authority by the exercise or the
threatened exercise of the right of condemnation or eminent domain, or if a
portion of any Individual Property shall be so taken so as to render, in the
Tenant's reasonable opinion, the continued operation of the remaining part or
parts of such Individual Property for the purposes for which it was used
immediately prior to such taking uneconomical, then the Tenant shall prepay Rent
pursuant to Section 15.5.
<PAGE>
(b) In the event of such a taking of only a portion of any
Individual Property which does not materially adversely affect the value of such
Individual Property and which, in the Tenant's reasonable opinion, does not
render uneconomical the continued operation of the remaining portion of such
Individual Property for the purpose for which same was used immediately prior to
such taking or for any other purpose desired by the Tenant, then this Lease
shall terminate on the date of such taking only as to the portion of such
Individual Property so taken, and shall continue as to balance of the Leased
Property, including without limitation the part of such Individual Property not
so taken; Neither the Landlord nor the Tenant shall instigate or encourage any
condemnation or similar proceeding affecting the Leased Property or any part
thereof.
(c) All awards resulting from any taking as set forth in this
Section 19.3 shall be distributed in the following order of priority: (i) first,
to make any necessary restorations of the remaining portion of the Individual
Property, (ii) second, to the Trustee to be applied pro rata to the interest
accrued on the Outstanding Series A Bonds and Series B Bonds and the Return on
Landlord's Equity Amount, (iii) third, to the Trustee to be applied pro rata to
the redemption of the Outstanding Series B Bonds, (iv) fourth, to the Trustee to
be applied pro rata to the redemption of the Series A Bonds, (v) fifth, to the
repayment of the Landlord's Equity Amount, (vi) sixth, to the Agent in payment
of all amounts due under the Reimbursement Agreement; and (vii) seventh, one
hundred (100%) percent of such excess amount shall be paid by the Trustee from
the Project Fund to the Agent to be held by the Agent in the Agent Reserve Fund
created pursuant to the Reimbursement Agreement. When no Bonds are Outstanding
and all Reimbursement Obligations payable under the Reimbursement Agreement and
the Reimbursement Notes have been paid in full, the Agent shall immediately pay
any amounts remaining in the Agent Reserve Fund (A) fifty (50%) to the Landlord
and (B) fifty (50%) to be held by the Landlord in the Reserve Fund for
disbursement as set forth in Section 19.7.
(d) The terms and provisions of this Section 19.3 shall
survive the termination of this Lease.
Section 19.4. Temporary Taking. If the whole or any portion of any
Individual Property shall be taken for temporary use or occupancy, the Term
shall not be reduced or affected and the Tenant shall continue to pay the Rent
in full. Except to the extent the Tenant is prevented from so doing pursuant to
the terms of the order of the condemning authority, the Tenant shall continue to
perform and observe all of the other covenants, agreements, terms, and
provisions of this Lease. In the event of any temporary taking, the Tenant shall
be entitled to receive the entire amount of any award therefor unless the period
of temporary use or occupancy shall extend beyond the Expiration Date, in which
case such award, after payment to the Landlord therefrom for the estimated cost
of restoration of such Individual Property to the extent that any such award is
intended to compensate for damage to such Individual Property, shall be
apportioned between the Tenant and the Landlord as of the day of Expiration Date
in the same ratio that the part of the entire period for such compensation is
made falling before the day of expiration and that part falling after, bear to
such entire period.
Section 19.5. Cooperation of Landlord. The Landlord shall cooperate
fully with the Tenant at the sole expense of the Tenant in filing any proof of
loss with respect to any insurance policy covering the casualties described in
Section 19.1 and in the prosecution or defense of any prospective or pending
condemnation proceeding with respect to any Individual Property or any part
<PAGE>
thereof. In no event will the Landlord voluntarily settle, or consent to the
settlement of, any proceeding arising out of any insurance claim or any
prospective or pending condemnation proceeding with respect to any Individual
Property or the Improvements or any part thereof without the prior written
consent of the Tenant (provided that no Event of Default shall have occurred and
be continuing) and, so long as any Bonds are Outstanding, the prior written
consent of the Agent.
Section 19.6. No Waiver. Nothing contained herein shall be construed as
a waiver by the Tenant of any claim which it may have against the condemnor for
taking all or any part of any Individual Property, and the Tenant, to the extent
permitted by the laws of the Applicable State, shall have the right to appear
and file its claim for damages in any such condemnation proceedings, to
participate in any and all hearings, trials and appeals thereon, to be
represented by counsel of its choice therein, and to receive the share of any
such awards so adjudicated to be due it.
Section 19.7 Reserve Fund.
(a) Landlord shall hold all amounts required to be deposited
in the Reserve Fund in trust and shall maintain such funds in a separate
account, segregated from the Landlord's other assets. Prior to disbursement in
accordance with the terms hereof, amounts on deposit in the Reserve Fund shall
be invested in Qualified Investments.
(b) Amounts on deposit in the Reserve Fund shall be disbursed
as follows:
(i) to the Tenant in accordance with Section 19.2
hereof, to the extent the Net Proceeds are insufficient to pay in full the cost
of any repair, restoration, modification, improvement or replacement of the
Improvements;
(ii) upon the termination of the Lease and the
surrender of the Leased Property by the Tenant, an amount not in excess of the
Deferred Maintenance Obligation shall be disbursed to the Landlord in payment of
the Deferred Maintenance Obligation under Section 3.4(b)(iii) hereof, and any
remaining amounts shall be disbursed to the Tenant;
(iii) upon the exercise by Tenant of its first
extension option, all amounts on deposit shall be disbursed to the Trustee to be
applied pro rata to the redemption of the Outstanding Series B Bonds; and
(iv) upon the purchase by the Tenant of any of the
Leased Properties in accordance with the terms hereof, the amounts on deposit
shall be disbursed to the Landlord to be credited against the purchase price
payable therefor.
ARTICLE 20. PREPAYMENT OF RENT
Section 20.1. No Optional Prepayment. Except as set forth in Sections
15.4 and 15.5, the Tenant shall have no right to prepay Rent during the Term of
this Lease.
<PAGE>
Section 20.2. Mandatory Prepayment. Upon the occurrence of the event
described in Section 2.01(b) of the Reimbursement Agreement, an amount equal to
the amount payable pursuant to such Section 2.01(b), if required thereunder.
Upon any prepayment pursuant to this Section 20.2, the Landlord and the Tenant
agree to amend the Basic Rent schedule set forth in Exhibit H attached hereto
and made a part hereof to appropriately reflect, on a pro rata basis, the effect
of such prepayment.
ARTICLE 21. PROCEDURE UPON PURCHASE
Section 21.1. State of Title. In the event of the purchase of the
Leased Property by the Tenant pursuant to the purchase option contained in
Article 15 of this Lease, the Landlord need not transfer and convey to the
Tenant or its designee (or, in the case of any Individual Property which is
ground leased by the Landlord, there need not exist on the date such ground
lease is assigned to the Tenant) any better title to each Individual Property
than existed on the date the Landlord acquired title to such Individual
Property, or entered into a ground lease for such Individual Property, and the
Tenant shall accept such title, subject, however, to all Permitted Encumbrances,
and to all applicable Legal Requirements, but free of the Lien of and security
interest created by any Secured Interests and free of any Liens, encumbrances,
charges, exceptions and restrictions which have been created by or resulted from
acts of the Landlord during the Term which were not consented to or requested by
the Tenant.
Section 21.2. Closing Requirements. Upon the closing date of such
purchase by the Tenant of the Leased Property pursuant to the purchase option
contained in Article 15 of this Lease, such date being the Expiration Date, the
Tenant shall pay to the Trustee or, if no Bonds shall be Outstanding, to the
Landlord, or to any persons designated by the Landlord in a written notice
delivered by the Landlord to the Tenant not less than three (3) days prior to
the closing date, by certified check, bank check or in federal funds, as the
Trustee or the Landlord may designate, at the place within the continental
United States designated in such notice, the purchase price therefor specified
in Section 15.2 herein, and the following shall then occur:
(a) The Landlord shall deliver to the Tenant such documents,
including without limitation deeds, assignments of leases and bills of sale, as
shall be necessary to convey and transfer the title to each Individual Property
to the Tenant or, in the case of any Individual Property which is ground leased
by the Landlord, to assign the Landlord's interest in such Individual Property
to the Tenant; provided, however, that in the case of the assignment of any such
ground lease, the Landlord shall also provide to the Tenant evidence of the
ground lessor's consent to such assignment;
(b) The Tenant shall pay (or reimburse the Landlord for) all
costs, fees and charges incident to such conveyance and transfer, including,
without limitation, reasonable counsel fees, escrow fees, recording fees, title
insurance premiums, mortgage prepayment penalties and all applicable federal,
state and local taxes (other than federal income taxes and state and local taxes
imposed upon or measured by net income) which may be incurred or imposed by
reason of such conveyance and transfer and by reason of the delivery and/or
recording of such deed and such other instruments;
(c) The Tenant shall transmit written notice to the Landlord
directing the Landlord to cause the optional redemption of any and all Bonds
Outstanding;
<PAGE>
(d) Upon (i) receipt by the Landlord of the notice described
in Section 21.2(c) and (ii) the receipt by the Trustee of the purchase price of
the Leased Property, the Landlord shall promptly cause the Trustee to redeem any
and all Bonds Outstanding pursuant to the terms of the Indenture and to apply
all or a portion of the purchase price to the redemption of such Outstanding
Bonds; and
(e) Upon (i) completion of the purchase of the Leased Property
pursuant to this Article 21, (ii) the payment of the purchase price therefor
specified herein, and (iii) the optional redemption of all Bonds Outstanding,
but not prior to the occurrence of (i), (ii) and (iii) herein, this Lease and
all obligations hereunder (including the obligations to pay the Basic Rent and
Supplemental Rent) shall terminate with respect to the Leased Property except
with respect to actual or contingent obligations and liabilities of the Tenant
under this Lease which arose on or prior to such closing date.
ARTICLE 22. INSURANCE
Section 22.1. General Provisions.
(a) The Tenant shall, at its sole cost and expense, carry or
cause to be carried the insurance coverages set forth in this Article on each
Individual Property. Copies of certificates evidencing such coverages shall be
delivered to the Landlord and the Agent.
(b) The Tenant expressly understands and agrees that any
insurance protection required by this Lease shall in no way limit the Tenant's
obligations assumed under this Lease, and shall not be construed to relieve the
Tenant from liability with respect to the deductible and/or self retention
provisions which may be contained therein and which may be applicable to any
claim or loss for which insurance is provided, nor from any other liability in
excess of such coverage, nor shall it preclude the Landlord or the Agent from
taking such other actions as are available to it under any provisions of this
Lease or otherwise in law.
(c) All insurance provided for in this Lease shall be effected
under valid and enforceable policies, in such forms and, from time to time after
the Commencement Date, issued by financially sound and responsible insurance
companies authorized to do business in the Applicable State which have been
approved by the Landlord and the Agent (which approvals shall not be
unreasonably withheld provided such companies have a Best policyholder rating of
not less than A- and a Best financial size rating of not less than VII). At
least 10 days before each Individual Commencement Date, and thereafter not less
than 15 days prior to the expiration dates of the policies theretofore furnished
pursuant to this Article, originals of the policies (or certificates of the
insurers in form reasonably satisfactory to the Landlord) for each Individual
Property, accompanied by evidence satisfactory to the Landlord and the Agent of
payment of the first installment of the premiums, shall be delivered by the
Tenant to the Landlord, it being understood that such insurance may be provided
under blanket policies maintained by the Tenant, in which event the Tenant shall
provide evidence that (x) such policy is in full force and effect, (y) the
Tenant has paid all amounts then due thereunder and (z) the Improvements are
included as insurance property under the terms of such policy.
<PAGE>
(d) The Tenant, the Landlord and the Agent will review every
two years the amounts of coverage provided taking into account all material
facts including inflation and the full insurable value of the Improvements. The
Landlord or the Agent may require additional amounts of coverage provided such
additional amounts are consistent with the amounts of insurance customarily
provided by owners or tenants of similar properties.
(e) All policies of insurance provided for or contemplated by
this Article shall name the Landlord and the Tenant and, for so long as the
Letters of Credit, or any of them, or any Obligations, shall be outstanding, the
Agent as the insured, additional insured or loss payee, as their respective
interests may appear.
(f) All policies of insurance provided for in this Article
shall, to the extent reasonably obtainable, contain clauses or endorsements to
the effect that:
(i) No act of negligence of the Tenant, or anyone
acting for the Tenant, or of any space tenant which might otherwise result in a
forfeiture of such insurance or any part thereof shall in any way affect the
validity or enforceability of such insurance insofar as the Landlord or the
Agent is concerned; and
(ii) Such policies shall not be changed or canceled
without at least 30 days' notice (10 days' notice for nonpayment) to the
Landlord and the Agent; and
(iii) The Landlord shall not be liable for any
premiums thereon or subject to any assessments thereunder.
(g) The Tenant shall not carry separate or additional
insurance, concurrent in form or contributing in the event of any loss with any
insurance required to be maintained by the Tenant under this Lease, unless such
separate or additional insurance shall comply with and conform to all the
provisions and conditions of this Article 22 and the Landlord and the Agent
consent in writing to such separate additional or concurrent insurance, which
consent shall not be unreasonably withheld. The Tenant shall promptly give
notice to the Landlord and the Agent of such separate or additional insurance
and shall promptly deliver to the Landlord and the Agent a certificate of
insurance in form reasonably satisfactory to each of them.
(h) In respect of any real, personal or other property located
in, at or upon the Leased Property, and in respect of the Leased Property, the
Tenant hereby releases the Landlord and the Agent and the Lenders from any and
all liability or responsibility to the Tenant or anyone claiming by, through or
under the Tenant, by way of subrogation or otherwise, for any loss or damage
caused by fire or any other casualty whether or not such fire or other casualty
shall have been caused by the fault or negligence of the Landlord, the Trustee
or anyone for whom the Landlord or the Trustee may be responsible. The Tenant
shall require its insurance carriers to include in the Tenant's policies a
clause or endorsement, if reasonably obtainable, whereby the Tenant shall be
permitted to release other persons without invalidating the insurance, or, if
not obtainable, the Tenant shall cause the Landlord and the Trustee to be named
as insureds under such policies.
<PAGE>
Section 22.2. General Liability.
(a) The Tenant shall, at its own cost and expense, provide
comprehensive general liability insurance written on a commercial liability
occurrence form against any liability of the Tenant, the Trustee, the Agent, the
Lenders and the Landlord with respect to each Individual Property and arising
from the maintenance, use, ownership and occupancy of such Individual Property.
Said insurance shall not be circumscribed by any endorsement limiting the
breadth of coverage. The insurance shall include the following coverages: (i)
Premises/Operations Liability; (ii) Contractor's Protective Liability/Products;
(iii) Products/ Completed Operations Liability; (iv) Broad Form Contractual
Liability applicable to the indemnity requirements of this Lease; (v) Extended
Bodily Injury Liability; (vi) Broad Form Property Damage Liability; and (vii)
Personal Injury Liability.
(b) The general liability policy shall include the Landlord,
the Agent and the Trustee as additional insureds. Said policy or policies shall
provide for indemnification of said parties against direct or contingent loss or
liability for damages for bodily and personal injury, death or property damage
occasioned by the operation or ownership of such Individual Property. The
Tenant's general liability policy or policies shall provide single limit
coverage of at least $2,000,000 for each Individual Property. The foregoing
limits may be obtained through the General Liability Policy or a combination of
General Liability and Excess or Umbrella Liability. The Net Proceeds of such
liability insurance shall be applied toward extinguishment or satisfaction of
the liability with respect to which the Net Proceeds of such insurance shall
have been paid.
Section 22.3. Auto Liability Insurance. The Tenant shall, at its sole
cost and expense, keep Business Automobile Liability insurance covering all
owned, non-owned and hired vehicles used in connection with the Tenant's
operations at each Individual Property in protection of the Tenant, the
Landlord, the Agent and the Trustee. Said policy or policies shall be written in
a comprehensive form and shall comply with all local regulations and case law
and shall provide for indemnification of said parties against direct or
contingent loss or liability for damages for bodily and personal injury, death
or property damage arising from the maintenance, use or operation of any owned
or non-owned vehicle used, in or in connection with, such Individual Property.
Said policy or policies shall provide single limit coverage of at least
$1,000,000 for bodily injury or death of each person and for damage to property.
Such auto liability insurance may be maintained as part of or in conjunction
with any other liability insurance coverage carried or required to be carried by
the Tenant. The Net Proceeds of such liability insurance shall be applied toward
extinguishment or satisfaction of the liability with respect to which the Net
Proceeds of such insurance shall have been paid.
Section 22.4. Builders' Risk Insurance. During construction of the
Improvements at or on any Individual Property, the Tenant shall, at the Tenant's
sole cost and expense, keep, or cause to be kept, Builders' Risk Insurance
(standard "all risk") written on a completed value (nonreporting) basis.
Coverage will include collapse and insure against the peril of fire with
extended coverage including vandalism and malicious mischief. In addition, if
commercially available at a reasonable cost, such policy of insurance shall
cover perils caused by earthquake and flood and shall be endorsed to cover
materials in transit. The policy shall name the Tenant as the insured and the
Landlord, the Trustee, the Agent and all subcontractors employed by the Tenant
as additional insureds as their interests may appear. Such insurance policy: (a)
<PAGE>
shall contain a written acknowledgment (annexed to the policy) by the insurance
company that its rights of subrogation have been waived with respect to all of
the insureds and any mortgagees in such policy, and an endorsement stating that
"permission is granted to complete and occupy"; and (b) if any off-site storage
location is used, shall cover, for their insurable value, all materials and
equipment at any off-site storage location used with respect to the Improvements
and such Individual Property and such locations shall be identified.
Section 22.5. Worker's Compensation and Employer's Liability.
The Tenant shall, at its own cost and expense, provide
Workers' Compensation insurance and Employer's Liability Insurance covering all
employees on, in, or about the Leased Property in accordance with all Legal
Requirements, to be endorsed to include coverage for any federal or other state
laws that may be found to have legal jurisdiction.
Section 22.6. Property Insurance.
(a) The Tenant shall, at its sole cost and expense keep and
maintain in force Comprehensive All Risk Property Insurance on the Improvements
and Equipment situated at each Individual Property, including coverage against
loss or damage by fire, collapse, lightning, water damage, windstorm, tornado,
hail, flood (if required by any Legal Requirement), vandalism and malicious
mischief, sprinkler breakage, earthquake (if required by any Legal Requirement)
subsidence, debris removal, demolition and against loss or damage by such other,
further and additional risks as now are or hereafter may be embraced by the
standard all risk coverage forms of endorsements, in each case: (i) in an amount
equal to the greater of (x) 100% of their "Replacement Value," which for
purposes of this Lease shall mean actual replacement value or (y) an amount at
least equal to the sum of the principal amount of all Outstanding Bonds and the
Landlord's Equity Amount, together with interest thereon for a period of not
less than six months calculated at the Maximum Rate; (ii) containing an agreed
amount endorsement with respect to such Improvements and Equipment waiving all
co-insurance provisions; and (iii) containing an endorsement that all covered
losses will be paid on a replacement cost basis.
(b) [Intentionally Omitted]
(c) Any insurance required to be provided by the Tenant under
this Section 22.6 may be provided by blanket insurance covering all of the
Individual Properties comprising the Leased Property, provided that (i) such
blanket insurance complies with all of the other requirements of this Lease,
(ii) the amounts payable to the Landlord, the Agent and the Trustee under such
blanket insurance shall be payable whether or not the Tenant, as an additional
insured, may be otherwise entitled to any proceeds of the policy and (iii) the
insurance protection to be provided hereunder for the Landlord, the Agent and
the Trustee is not impaired or diminished by such blanket insurance or inclusion
of the Tenant as an insured thereunder.
(d) The Tenant shall also, at its sole cost and expense, keep
boiler and machinery insurance, if applicable, on an extended comprehensive
basis with a joint agreement if there are two separate policies.
Section 22.7. [Intentionally Omitted].
Section 22.8. [Intentionally Omitted].
<PAGE>
Section 22.9. Umbrella or Excess Liability. If reasonably available,
standard clause must be attached to any umbrella or excess liability policy
providing that the self insured retention will "drop down" and be considered
primary in the event the aggregate primary limits become impaired.
Section 22.10. Net Proceeds of Insurance; Form of Policies. Each policy
of insurance obtained pursuant to or required by this Article 22 shall provide
that all proceeds thereunder (excluding proceeds of liability or workers'
compensation insurance) shall be payable to the Landlord and to the Agent, as
their interests may appear. The Tenant shall pay or cause to be paid when due
the premiums for all insurance policies required by this Lease, and shall
promptly furnish or cause to be furnished to the Landlord and the Agent evidence
of such payments. All such policies shall provide that the Agent and the
Landlord shall be given not less than thirty (30) days' notice (10 days' notice
for nonpayment) of each expiration, any intended cancellation and any intended
reduction of the coverage provided thereby. The Landlord and the Agent shall not
be responsible for the sufficiency of any insurance herein required and shall be
fully protected in accepting payment on account of such insurance or any
adjustment, compromise or settlement of any loss agreed to by the Landlord and
the Agent; provided, however that, so long as no Event of Default is in
existence hereunder, neither the Landlord nor the Agent shall adjust, compromise
or settle any loss without the prior consent of the Tenant. The Tenant shall
cause to be delivered to the Agent and the Landlord on each anniversary of the
Commencement Date until the Expiration Date a certificate of an Authorized
Representative of the Tenant in form reasonably satisfactory to the Agent and
the Landlord that the insurance policies required by this Lease are in full
force and effect. The Agent and the Landlord may rely on said certificate in
making a determination that the insurance policies required by this Lease are in
full force and effect unless they have actual notice to the contrary.
ARTICLE 23. NO WAIVER
Section 23.1. Written Waiver. No waiver by either Party of any breach
by the other Party of any of the terms, covenants, agreements or conditions of
this Lease shall be effective unless such waiver is contained in a writing
subscribed by such Party and the Agent and no such waiver shall be deemed to
constitute a waiver of any succeeding breach thereof, or a waiver of any breach
of any of the other terms, covenants, agreements and conditions herein
contained.
Section 23.2. No Acceptance of Surrender. No act or thing done by the
Landlord or the Landlord's agents during the Term shall be deemed an acceptance
of surrender of the Leased Property or any part thereof, and no agreement to
accept such surrender shall be valid unless in writing and signed by the
Landlord.
Section 23.3. No Accord and Satisfaction. The receipt by the Landlord
of the Basic Rent and Supplemental Rent with knowledge of the breach of any
covenant of this Lease on the part of the Tenant shall not be deemed a waiver of
such breach. No payment by the Tenant or receipt by the Landlord of a lesser
amount than the Basic Rent or a lesser amount of the Supplemental Rent then due
shall be deemed to be other than a payment on account of the earliest stipulated
amount then due, nor shall any endorsement or statement on any check or payment
as Basic Rent or Supplemental Rent be deemed an accord and satisfaction and the
Landlord may accept such check or payment without prejudice to the Landlord's
right to recover the balance of such Basic Rent or Supplemental Rent or pursuant
to any other remedy provided in this Lease.
<PAGE>
Section 23.4. Payment of Rent Not Waiver. The payment by the Tenant of
any Basic Rent or Supplemental Rent with knowledge of the breach of any covenant
of this Lease on the part of the Landlord or the Agent shall not be deemed a
waiver of such breach.
ARTICLE 24. NON-LIABILITY OF LANDLORD
Section 24.1. Non-Liability of Landlord. Neither the Landlord nor its
agents, employees, officers, directors and representatives shall be liable to
the Tenant or the Tenant's Visitors for any damage, injury, loss, compensation
or claim based on, arising out of, or resulting from any causes (other than a
breach of the covenant of quiet enjoyment pursuant to Section 16.1) including,
but not limited to, the following: repairs to any portion of the Leased
Property; interruption in the use of the Leased Property; any accident or damage
resulting from the use or operation (by the Tenant or any other person or
persons) of heating, cooling, electrical or plumbing equipment or apparatus; any
fire, robbery, theft, mysterious disappearance and/or any other casualty; the
actions of any other Person or Persons; any leakage in any part or portion of
the Leased Property, or from water, rain or snow that may leak into, or flow
from, any part of the Leased Property, or from drains, pipes or plumbing
fixtures in any part of the Leased Property; or any act, omission, or any
neglect of the Tenant or Tenant's Visitors in the use of any part of the Leased
Property by the Tenant or Tenant's Visitors; provided, however, that the
Landlord shall remain liable to the Tenant for the Landlord's gross negligence
or willful misconduct.
Section 24.2. Landlord Not Responsible for Tenant's Property. As an
express inducement to the Landlord to enter into this Lease, and notwithstanding
any provisions of this Lease to the contrary, the Tenant agrees that any goods,
personal property or personal effects, including removable trade fixtures used
or placed by the Tenant or its employees in or about the Leased Property shall
be at the sole risk of the Tenant, and the Landlord shall not in any manner be
held responsible or liable therefor; nor shall the Landlord or its agents,
employees, officers, directors and representatives have any liability to the
Tenant for any claims based on the interruption of, or loss to, the Tenant's
business.
ARTICLE 25. INDEMNIFICATION
Section 25.1. Indemnification. Subject to the provisions of Section
25.2 below, the Tenant shall indemnify, defend, protect and save harmless the
Landlord, the Agent, the Lenders, the Trustee and their respective Affiliates,
agents, employees, officers, directors, members, principals and other
representatives (each, an "Indemnified Party" and collectively, the "Indemnified
Parties") from and against any and all liabilities, penalties, fines, damages,
claims, losses, costs, charges and expenses, including without limitation court
costs and reasonable attorneys' fees, which may be imposed upon, incurred by or
asserted against the Indemnified Parties, or any of them, in connection with,
arising out of or resulting from:
(a) any Indemnified Party's interest in the Leased Property or
any part thereof;
(b) any Applicable Project, including without limitation (i)
the construction of the Improvements or Off-Site Improvements at or with respect
to any Individual Property; (ii) any matter arising out of or relating to the
Applicable Construction Agreement and (iii) the failure to construct the
Applicable Project in accordance with the Applicable Construction Agreement, the
Applicable Approvals and the Applicable Plans and Specifications;
<PAGE>
(c) the possession and occupancy of the Leased Property or any
part thereof, or the uses, operations or businesses conducted on the Leased
Property or any part thereof, including without limitation any failure to use or
operate any Individual Property in accordance with applicable Legal Requirements
and Environmental Requirements;
(d) any matter relating to title to any Individual Property,
including without limitation any matter arising out of or relating to the
Applicable Acquisition Agreement;
(e) any Default or Event of Default hereunder;
(f) any matter relating to the physical condition of any
Individual Property;
(g) any matter relating to the environmental condition of any
Individual Property, including without limitation (i) the failure of such
Individual Property to comply with all applicable Environmental Requirements,
(ii) any violation or notice of violation of or with respect to any
Environmental Requirement applicable to such Individual Property, (iii) any
action, suit, proceeding, hearing, investigation or inquiry before or by any
Governmental Authority and (iv) the existence or discharge of any Hazardous
Substances at or on such Individual Property;
(h) the failure of any Individual Property to comply with all
applicable Legal Requirements, including without limitation Legal Requirements
relating to zoning and building code enforcement;
(i) any tax on gross rental payments, including, without
limitation, any sales or use tax, gross receipts tax, rental or occupancy tax,
transfer tax, license or permit fee, franchise fee or tax, documentary or stamp
tax, intangible tax or other tax resulting from or relating to the ownership,
use, occupancy, or rental of the Leased Property, or any part thereof, or this
Lease (other than federal income taxes and state and local taxes imposed upon or
measured by net income);
(j) the failure of Tenant to make timely payment of any
Impositions payable on account of or with respect to the Leased Property or any
part thereof; and
(k) with respect to the Offering Statement, any amendment or
supplement thereto, any actual or alleged misstatement or omission of material
fact, including any omission to state a material fact necessary to make any
statements contained therein, in light of the circumstances under which they
were made, not misleading, relating to the Tenant, any Applicable Project or
Individual Property excluding, however, material appearing under the headings,
"THE ISSUER", "THE LC ISSUERS", "THE LETTERS OF CREDIT" and "THE BONDS", but
including, without limitation "THE COMPANY", "PURPOSE OF THE BOND ISSUE" and
"APPLICATION OF BOND PROCEEDS".
Section 25.2. Exceptions to Indemnification.
(a) Notwithstanding any provision herein to the contrary, the
Tenant shall not be liable for indemnification or reimbursement to, any
Indemnified Party to the extent that such Indemnified Party has acted in a
manner constituting gross negligence or willful misconduct in connection with
the matter for which such Indemnified Party is seeking indemnification or
reimbursement.
<PAGE>
(b) All amounts which may become due from the Tenant to any
Indemnified Party under this Article 25 shall be reduced by any amounts actually
received by such Indemnified Party from the proceeds of insurance provided by
the Tenant and by tax benefits, refunds, savings or credits resulting from
indemnification.
(c) Notwithstanding any provision herein to the contrary, the
Tenant's indemnification responsibilities hereunder shall not include liability
for amounts due, or expenses incurred by or on behalf of the Landlord, solely by
reason of its status as landlord of the Individual Properties under applicable
laws and regulations relating to federal income taxes and state and local taxes
imposed upon or measured by net income.
(d) All amounts described in Section 3.8(b) hereof.
Section 25.3. Right of Set-Off. In addition to any rights now or
hereafter granted under applicable law, upon the occurrence and during the
continuance of any Event of Default, each Indemnified Party is hereby authorized
by the Tenant at any time or from time to time, without notice to any Person
(any such notice being hereby expressly waived) to set off, to appropriate and
to apply any and all deposits (general or special, including, but not limited
to, indebtedness evidenced by certificates of deposit, whether matured or
unmatured (but not including trust accounts)) and any other Debt at any time
held or owing by such Indemnified Party to or for the credit or the account of
the Tenant against and on account of the obligations of the Tenant owing to such
Indemnified Party under this Article 25, irrespective of whether or not (i) such
Indemnified Party shall have made any demand therefor hereunder, (ii) the Rent
shall have been accelerated and be due and payable or (iii) such obligations are
contingent or unmatured.
Section 25.4. Miscellaneous; Survival.
(a) All amounts which may become due from the Tenant to any
Indemnified Party under this Article 25 shall be payable by the Tenant within 5
Business Days after demand therefor by the Indemnified Party. All such amounts
shall be included as part of, and shall be deemed to be, Supplemental Rent under
this Lease.
(b) Nothing contained in this Article 25 shall impair or
otherwise derogate the Tenant's rights with respect to any Person not expressly
entitled to the benefits of the provisions of this Article 25.
(c) The provisions of this Article 25 and of any other
indemnification provisions elsewhere contained in this Lease shall survive the
expiration or earlier termination of the Term of this Lease with respect to
acts, occurrences or omissions occurring prior to the expiration or earlier
termination of the Term of this Lease.
ARTICLE 26. NOTICES
Section 26.1. Notices. All notices, offers, approvals, elections,
consents, acceptances, waivers, reports, requests and other communications
required or permitted to be given hereunder (all of the foregoing hereinafter
collectively referred to as "Communications") shall be in writing and shall be
<PAGE>
deemed to have been duly given if delivered personally with receipt acknowledged
or sent by facsimile (which shall be confirmed by a writing sent by registered
or certified mail or equivalent on the same date that such facsimile is sent),
or by recognized overnight courier for next Business Day delivery, addressed or
sent to the parties at the following addresses and facsimile numbers or to such
other additional address or facsimile number as any party shall hereafter
specify by Communication to the other parties:
If to the Landlord: Movieplex Realty Leasing, L.L.C.
2 World Trade Center
Suite 2112
New York, New York 10048
ATTN: Mr. Roger J. Burns, Vice President
Facsimile: (212) 775-0901
with a copy to: Wolff & Samson
5 Becker Farm Road
Roseland, New Jersey 07068
ATTN: Martin L. Wiener, Esq.
Facsimile: (973) 740-1407
If to the Tenant: Carmike Cinemas, Inc.
1301 First Avenue
Columbus, Georgia 31901-2109
ATTN: Mr. John Barwick
Facsimile: (706) 576-3419
with a copy to: Carmike Cinemas, Inc.
1301 First Avenue
Columbus, Georgia 31901-2109
ATTN: Mr. Lamar Fields
Facsimile: (706) 576-3441
with a copy to: Troutman Sanders LLP
600 Peachtree Street
Suite 5200
Atlanta, Georgia 30308-2216
ATTN: Hazen Dempster, Esq.
Facsimile: (404) 885-3995
If to the Agent: Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
ATTN: Syndications Group
Facsimile: (404) 332-4005
with a copy to: Wachovia Bank, N.A.
191 Peachtree Street, N.E.
30th Floor
Atlanta, Georgia 30303-1757
ATTN: Mr. Doug Strickland
Facsimile: (404) 332-6920
with a copy to: Jones, Day, Reavis & Pogue
3500 One Peachtree Center
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
ATTN: Christopher L. Carson, Esq.
Facsimile: (404) 581-8868
<PAGE>
ARTICLE 27. MECHANICS' LIENS
Section 27.1. Mechanics' Liens. If any mechanics' or other lien, charge
or order for the payment of money or otherwise shall be filed against the Leased
Property or any part thereof (whether or not such lien, charge or order is valid
or enforceable as such), arising out of any act or omission by the Tenant, the
Tenant shall promptly notify the Landlord and the Agent thereof and, at the
Tenant's expense, shall cause it to be canceled or discharged of record by
bonding or otherwise within ten (10) days after notice of such filing, and the
Tenant shall, in any event indemnify and save the Landlord, the Agent and the
Trustee harmless against and shall pay all costs, expenses, losses, fines and
penalties, including, without limitation, attorneys' fees and disbursements,
related thereto or resulting therefrom.
ARTICLE 28. DEFINITION OF LANDLORD
Section 28.1. Definition of Landlord. The term "Landlord" as used in
this Lease shall mean only (i) the owner of the Leased Property, which is
currently Movieplex Realty Leasing, L.L.C and (ii) the Agent, as assignee for
the benefit of the Lenders pursuant to the Security Documents. Upon the transfer
of title to the Leased Property or any part thereof, Movieplex Realty Leasing,
L.L.C. shall be and hereby is entirely freed and relieved of all covenants and
obligations of the Landlord hereunder except for liabilities which arose prior
to such transfer and this Lease shall be deemed and construed as a covenant
running with the land without further agreement between the parties or their
successors in interest. Notwithstanding anything to the contrary herein
contained, for so long as any amounts shall be due and owing the Agent under the
Reimbursement Agreement or the Reimbursement Notes, the Landlord and Tenant
agree that the exercise by the Landlord of remedies to enforce its Reserved
Rights may be pursued whether or not an Event of Default shall have occurred and
be continuing hereunder or under any other Transaction Document. Further, the
Landlord agrees that the Landlord, without the prior written consent of the
Agent, shall not take any action to accelerate the payment of Rent or seek to
terminate this Lease, it being expressly acknowledged by the Landlord that any
injunctive or other equitable relief shall not seek to dispossess the Tenant
from the Leased Property. Any exercise by the Landlord shall be upon notice to
the Tenant. The Landlord's rights with respect to its exercise of remedies
concerning the Reserved Rights shall not be limited to equitable relief provided
that the Landlord shall give the Tenant and the Agent five days' prior notice of
the institution of any action with respect to such Reserved Rights.
ARTICLE 29. DEFINITION OF TENANT
Section 29.1. Definition of Tenant. The term "Tenant" as used in this
Lease includes the Tenant, its successors and permitted assigns and any person
or entity claiming by, through or under the Tenant. The Tenant shall be as fully
responsible to the Landlord for all acts and omissions of its subtenants and
occupants as it is for its own acts and omissions.
ARTICLE 30. PERSONAL LIABILITY
Section 30.1. No Personal Liability or Accountability. Anything in this
Lease to the contrary notwithstanding, the liability, if any, of the Landlord to
the Tenant in the performance by the Landlord of its obligations under this
Lease or any Transaction Document to which it is a party, any default by the
Landlord hereunder or thereunder or the Landlord's gross negligence or willful
<PAGE>
misconduct in connection herewith or therewith, shall be limited to the interest
of the Landlord in the Leased Property and the Tenant agrees to look solely to
the Landlord's interest in the Leased Property for the recovery of any judgment
from the Landlord or its agents, employees, officers, directors and
representatives. No covenant or agreement contained in this Lease shall be
deemed to be the covenant or agreement of any present, past or future officer,
director, or agent or employee of the Tenant or the Landlord, in his or her
individual capacity, and neither the officers, directors, agents or employees of
the Tenant or the Landlord nor any official executing this Lease shall be liable
personally on this Lease or be subject to any personal liability or
accountability by reason of any transaction or activity relating to this Lease.
ARTICLE 31. ENVIRONMENTAL COMPLIANCE
Section 31.1. Environmental Compliance. The Tenant agrees to comply in
all material respects at its sole cost and expense with all Environmental
Requirements. To the extent any Environmental Requirements hold Landlord and
Tenant jointly and severally liable for compliance, Tenant shall be solely
responsible for compliance with such Environmental Requirements. If on the
Expiration Date or sooner termination of this Lease, any Individual Property is
not in compliance with all Environmental Requirements, the provisions of Section
14.1 shall apply to such Individual Property until compliance with all
Environmental Requirements is completed.
Section 31.2. Existence of Hazardous Substances. The Tenant shall:
(a) not cause, suffer or permit any Hazardous Substance to
exist on, about or beneath any Individual Property or discharge from any
Individual Property (whether originating thereon or migrating to such Individual
Property from other property), and shall promptly: (i) pay any claim against the
Tenant, the Landlord, the Trustee or any Individual Property, (ii) remove any
Lien upon any Individual Property and (iii) defend, indemnify and hold the
Landlord and its agents, employees, officers and representatives and the Trustee
harmless from any and all claims, expenses, liability, loss or damage, in each
case resulting from any Hazardous Substance that exists on, about or beneath any
Individual Property or is discharged from any Individual Property;
(b) not cause, suffer or permit any Hazardous Substance to
exist on or discharge from any property owned or used by the Tenant which would
result in any Lien upon any Individual Property and shall promptly: (i) pay any
claim against the Tenant, the Landlord, the Trustee or any Individual Property;
(ii) remove any charge or lien upon any Individual Property and (iii) defend,
indemnify and hold the Landlord and the Trustee harmless from any and all
claims, expenses, liability, loss or damage, resulting from the existence of any
such Hazardous Substance; or
(c) notify the Landlord and the Trustee in writing of any
Hazardous Substance that exists on, about or beneath any Individual Property or
is discharged from or onto any Individual Property (whether originating thereon
or migrating to such Individual Property from other property) within ten (10)
days after the Tenant first has knowledge of such existence or discharge.
Section 31.3. Environmental Inspection. If during the Term the Landlord
has reason to believe that any Individual Property fails to comply with
Environmental Requirements, the Landlord shall have the right to require the
Tenant, at the Tenant's sole cost and expense, to retain an environmental
<PAGE>
consultant, reasonably acceptable to the Landlord, to conduct a complete and
thorough on-site inspection of such Individual Property, including but not
limited to a geohydrological survey of soil and subsurface conditions as well as
other tests, to determine whether such Individual Property and the Tenant and
any subtenants's use and occupancy thereof is in full compliance with all
Environmental Requirements. The consultant shall certify to the Landlord
whether, in the consultant's professional judgment, such Individual Property and
such use and occupancy are in full compliance with all Environmental
Requirements and, if such is not the case, the consultant shall recommend
appropriate cost-effective remedial actions with respect thereto, which actions
will be performed by the Tenant at its sole cost and expense, as well as the
costs of all investigations, tests and consulting fees.
Section 31.4. De Minimis Quantities. Notwithstanding the foregoing, the
Tenant shall be permitted to bring upon any Individual Property and use such
quantities of certain Hazardous Substances which are necessary to the proper
operation of the Tenant's business provided that such activities shall be done
in compliance with all Legal Requirements. The Tenant shall comply with all
Environmental Requirements in connection with transportation, storage, use and
disposition of said permitted Hazardous Substances. This provision shall not
include any Hazardous Substance either currently or in the future classified as
an "Extremely Hazardous Substance" under the Federal Emergency Planning and
Community Right to Know Act (42 U.S.C. 11001 et seq.).
ARTICLE 32. MISCELLANEOUS
Section 32.1. Entireties; Exhibits; Conflicts; Modifications.
(a) Except for the Transaction Documents, this Lease
constitutes the entire agreement of the Parties hereto with respect to its
subject matter, and all prior agreements with respect thereto are merged herein.
(b) All Exhibits attached to this Lease are incorporated into
this Lease and shall be deemed to be made a part of this Lease for all purposes.
(c) If any conflict or inconsistency exists between any term
or provision contained in the body of the Lease and any term or provision
contained in any Lease Supplement, then the term or provision contained in the
Lease Supplement shall control and prevail in all respects.
(d) Any attempt hereafter made to change, modify, waive,
discharge or effect an abandonment of this Lease in whole or in part shall be
void and ineffective unless in writing and signed by the Party against whom
enforcement of the change, modification, waiver, discharge or abandonment is
sought.
Section 32.2. Further Assurances and Corrective Instruments. The
Landlord and the Tenant agree that they will, if necessary, execute, acknowledge
and deliver, such supplements hereto and such further instruments as may
reasonably be required for correcting any inadequate or incorrect description of
the Leased Property or any part thereof hereby leased or intended so to be or
for carrying out the expressed intention of this Lease including, without
limitation the provisions of Sections 32.15(b) and (c).
<PAGE>
Section 32.3. Jury Trial Waiver. To the extent permitted by law, the
Landlord and the Tenant do hereby waive trial by jury in any action, proceeding
or counterclaim brought by either of the Parties hereto against the other on any
matter whatsoever arising out of or in connection with this Lease, the
relationship of any of the Landlord, the Agent and the Tenant, the Tenant's use
or occupancy of the Leased Property and/or any claim, injury or damage, or any
emergency or statutory remedy.
Section 32.4. Severability. If any term or provision of this Lease or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those to which it
is held invalid or unenforceable, shall not be affected thereby and all other
terms and provisions of this Lease shall be valid and enforced to the fullest
extent permitted by Legal Requirements.
Section 32.5. Interpretation.
(a) Whenever in this Lease any words of obligation or duty are
used, such words or expressions shall have the same force and effect as though
made in the form of covenants.
(b) Words of any gender used in this Lease shall be held to
include any other gender, and words in the singular number shall be held to
include the plural, when the sense requires.
(c) This Lease shall not be strictly construed either against
the Landlord or the Tenant, regardless of whether any provision thereof has been
drafted by the Landlord or the Tenant (or their respective attorneys).
(d) The headings and captions contained in this Lease are
inserted for convenience of reference only, and are not to be deemed part of or
to be used in construing this Lease.
(e) The covenants and agreements herein contained shall,
subject to the provisions of this Lease, bind and inure to the benefit of the
Landlord, its successors and assigns, and the Tenant, its successors and
permitted assigns except as otherwise provided herein.
(f) This Lease has been executed and delivered in the State of
New York and shall be governed by and construed in accordance with the internal
laws of the State of New York, except to the extent that the internal laws of
any Applicable State shall mandatorily govern matters relating to real property
located in such Applicable State.
(g) The Landlord has made no representations or promises with
respect to the Leased Property, except as expressly contained herein.
Section 32.6. No Offer; No Option, etc. The submission of this Lease to
the Tenant for examination does not constitute by the Landlord a reservation of,
or an option to the Tenant for, the Leased Property or any part thereof, or an
offer to lease on the terms set forth herein, and this Lease shall become
effective as a lease agreement only upon execution and delivery thereof by the
Landlord and the Tenant.
<PAGE>
Section 32.7. Recording. This Lease or (if permitted by law in the
Applicable State) a short form memorandum of this Lease in recordable form,
provided that such memorandum shall not contain any of the specific rental terms
set forth herein, shall be recorded in the appropriate land records of any
Applicable State and the Tenant shall pay all recording fees. Upon the
expiration or earlier termination of this Lease, the Tenant shall execute and
deliver to the Landlord, in recordable form, an instrument which terminates of
record this Lease or any memorandum of Lease, as applicable. The Tenant hereby
appoints the Landlord its attorney-in-fact to execute such instrument on the
Tenant's behalf. The provisions of this Section 32.7 shall survive the
expiration or sooner termination of this Lease.
Section 32.8. Consent by Landlord. Wherever in this Lease the Landlord
agrees not to unreasonably withhold its consent or approval, or words of like
import, the Tenant agrees that it shall not be unreasonable for the Landlord to
withhold such consent or approval (i) if by granting such consent or approval
the Landlord shall be in violation of any Secured Interests or any Legal
Requirement, or (ii) the Trustee or the Agent shall not give its consent or
approval thereto where its consent or approval is required by the terms of its
Secured Interest. The foregoing are illustrative, and not the sole instances, in
which the Landlord's withholding of consent shall be deemed to be not
unreasonable. The Tenant agrees that if it is determined that the Landlord
unreasonably withheld its consent under any provisions of this Lease, the Tenant
shall have no action for damages against the Landlord but shall be limited to an
action for specific performance or the like.
Section 32.9. No Merger. There shall be no merger of this Lease, or the
leasehold estate created by this Lease, with any other estate or interest in the
Leased Property or any part thereof, by reason of the fact that the same person,
firm, corporation or other entity may acquire or own or hold, directly or
indirectly, (i) this Lease or the leasehold estate created by this Lease, or any
interest in this Lease or in any such leasehold estate, and (ii) any such other
estate or interest in the Leased Property or any part thereof; and no such
merger shall occur unless and until all persons, corporations, firms and other
entities having an interest (including a Security Interest) in (i) this Lease or
the leasehold estate created by this Lease; and (ii) any such other estate or
interest in the Leased Property or any part thereof shall join in a written
instrument effecting such merger and shall duly record same.
Section 32.10. Landlord, Agent and Tenant Representatives. Whenever
under the provisions of this Lease the approval of the Landlord, the Agent or
the Tenant is required or the Landlord, the Agent or the Tenant is required to
take some action at the request of the other, such approval of such request
shall be given for the Landlord, by an Authorized Representative of the
Landlord, for the Agent by an Authorized Representative of the Agent, and for
the Tenant, by an Authorized Representative of the Tenant. The Landlord, the
Agent and the Tenant, as the case may be, shall be authorized to rely upon any
such approval or request.
Section 32.11. Binding; Counterparts. This Lease shall be binding upon
the parties hereto only when duly executed on behalf of both the Tenant and the
Landlord together; provided, however, that each set of counterparts taken
together shall constitute an original.
Section 32.12. Time is of the Essence. Time is of the essence with
respect to this Lease and no covenant or obligation hereunder to be performed by
the Tenant may be waived except by the written consent of the Landlord and the
Agent and waiver of any such covenant or obligation or a forbearance to invoke
<PAGE>
any remedy on any occasion shall not constitute or be treated as a waiver of
such covenant or obligation or any other covenant or obligation as to any other
occasion and shall not preclude the Landlord from invoking such remedy at any
later time prior to the Tenant's cure of the condition giving rise to such
remedy. Each of the Landlord's rights hereunder is cumulative to its other
rights hereunder and not alternative thereto.
Section 32.13. Receipt of Lease. The Parties hereto each acknowledge
receipt of a signed, true and exact copy of this Lease.
Section 32.14. Unavoidable Delay. If either Party shall be delayed or
prevented from the performance of any act required by this Lease by reason of
acts of God, strikes, lockouts, labor troubles, inability to procure materials,
or where the Tenant is barred or prevented, directly or indirectly, from
proceeding with the development otherwise permitted by a legal action instituted
by any Applicable State agency, political subdivision or other party to protect
the public health and welfare or by a directive or Order issued by any
Applicable State agency, political subdivision or Court of competent
jurisdiction to protect the public health or welfare, acts of war or other cause
without fault and beyond the reasonable control of the Party obligated,
performance of such act shall be excused for the period of the delay, and the
period for the performance of any such act shall be extended for a period
equivalent to the period of such delay; provided, however, nothing in this
Section 32.14 shall excuse the Tenant from the prompt payment of any Rent or
Impositions payable pursuant to the provisions of this Lease.
Section 32.15. Relation of Parties.
(a) Nothing in this Lease shall be construed to make the
Parties hereto partner or joint venturers or to render either party hereto
liable for any obligation of the other.
(b) The Landlord and the Tenant acknowledge and agree that
solely for purposes of property law and the Bankruptcy Code (i) this Lease shall
not constitute a "true lease" but shall instead constitute a financing and shall
not be deemed an "executory contract" or "unexpired lease" under Section 365 of
the Bankruptcy Code or any similar provisions of the Bankruptcy Code, (ii) in
the event that the Tenant shall seek relief under the Bankruptcy Code, neither
it nor the Landlord shall seek to have the Lease classified as a "true lease"
nor shall either raise an objection to or seek to limit the claim of Landlord
and the Agent and Lenders under Section 502(b)(6) of the Bankruptcy Code or any
similar provision of the Bankruptcy Code, (iii) the obligations of the Tenant to
the Landlord and the Agent and Lenders under this Lease are obligations of the
Tenant ranking pari passu as to debt priority with the Tenant's obligations to
its other senior lenders, (iv) this Lease be treated as a mortgage or deed of
trust (whichever is applicable in the Applicable State in which the Individual
Properties are located) and security agreement, encumbering each Individual
Property, and that Tenant, as grantor, hereby grants to Landlord, as mortgagee
or beneficiary and secured party, or any successor thereto, a first and
paramount Lien on each Individual Property, (v) that Landlord shall have, as a
result of such determination, all of the rights, powers and remedies of a
mortgagee or deed of trust beneficiary available under the law of the Applicable
State to take possession of and sell (whether by foreclosure or otherwise) any
Individual Property, (vi) that the effective date of such mortgage or deed of
trust shall be the effective date of this Lease, (vii) that the recording of
this Lease or a memorandum of Lease shall be deemed to be the recording of such
mortgage or deed of trust, and (viii) that the obligations secured by such
<PAGE>
mortgage or deed of trust shall include the Obligations and all other
obligations of and amounts due from Tenant hereunder and under the Transaction
Documents. The Tenant shall not enter into any other financings, leases, or
other similar arrangements pursuant to which the Tenant's obligations thereunder
shall be senior as to debt priority to its obligations to the Landlord and the
Agent and Lenders under this Lease.
(c) The Landlord and Tenant acknowledge and agree that for all
purposes other than property and bankruptcy law purposes (including, but not
limited to, for purposes of applicable federal, state and local tax laws), this
Lease shall be deemed to be a "true lease" with Tenant as the lessee of the
Leased Property and the Landlord and the Tenant agree not to take any action or
position, or make any filing, inconsistent with such treatment, including, but
not limited to, on or with respect to their federal, state and local tax returns
or any other filing.
(d) The Tenant acknowledges that the Landlord, the Agent and
the Lenders are relying on the provisions of Section 32.15(b) and that if the
Tenant violates any provision of or threatens to violate any provision of this
Section it will cause the Agent irreparable harm and agrees that the Agent may
pursue both injunctive relief and any and all other remedies available at law or
in equity for such violation or threatened violation, including the recovery of
damages and reasonable attorneys' fees and costs.
(e) Landlord acknowledges that the Tenant is relying on the
provisions of Section 32.15(c) and that if the Landlord violates any provision
of or threatens to violate any provision of such Section it will cause the
Tenant irreparable harm and agrees that the Tenant may pursue both injunctive
relief and any and all other remedies available at law or in equity for such
violation or threatened violation, including the recovery of damages and
reasonably attorneys' fees and costs.
Section 32.16. Survival of Indemnification and Other Obligations.
Regardless of whether explicitly stated in any other provision of this Lease,
any obligation of the Tenant to indemnify the Landlord, the Trustee, the Agent
or any other Person shall constitute Supplemental Rent, the payment of which
shall survive the expiration or earlier termination of this Lease. Further, the
Tenant hereby expressly acknowledges that the Agent is a third party beneficiary
of all obligations to make payments of Supplemental Rent in amounts provided
herein in respect of indemnification obligations hereunder of the Tenant to or
for the benefit of the Agent.
Section 32.17. Brokerage Indemnity. Each Party represents to the other
that neither has utilized the services of a broker or other person and is not
obligated with respect to any claims for brokerage, commission, finder's or
other fees relative to this Lease and the transaction set forth herein based in
any way on agreement, arrangements or understandings made by such party with any
other party or parties.
Section 32.18. Reference to Trustee and Agent. This Lease shall be
deemed to be amended (a) to delete all references to the Trustee from and after
the time all Bonds are redeemed pursuant to the provisions of the Indenture and
(b) to delete all references to the Agent from and after the time all
Obligations and other amounts due and owing to the Agent and the Lenders under
the Reimbursement Agreement shall have been paid in full and all Letters of
Credit and commitments thereunder have been terminated; provided, however, that
nothing contained in this Section 32.18 shall in any manner limit the
indemnification obligations of the Tenant to the Trustee or the Agent which
survive the expiration or sooner termination of this Lease.
<PAGE>
Section 32.19. Date for Identification Purposes. This Lease has been
dated as of September 1, 1997 as a matter of convenience of reference only. This
Lease shall not be effective and binding upon the Parties until the actual
execution and delivery hereof by the Landlord and the Tenant, which shall occur
on the Commencement Date. Each Lease Supplement shall not be effective and
binding upon the Parties until the actual execution and delivery thereof by the
Landlord and the Tenant.
Section 32.20. Negotiation of this Lease. This Lease has been willingly
entered into by sophisticated commercial parties, each represented by
independent legal counsel.
<PAGE>
IN WITNESS WHEREOF, the Parties have executed this Lease on the date
first above written.
WITNESS: LANDLORD:
MOVIEPLEX REALTY LEASING,
L.L.C.
By: RANDOLPH, HUDSON & CO.,
INC., Manager
/s/Susan Forsyth By: Roger J. Burns
- ---------------- --------------
Susan Forsyth Name: Roger J. Burns
Assistant Secretary Title: Vice President
TENANT:
ATTEST: CARMIKE CINEMAS, INC.
/s/Larry M. Adams By: /s/John O. Barwick III
- ----------------- ----------------------
Larry M. Adams Name: John O. Barwick III
Secretary Title: Vice President
[Signature Page to Master Lease]
REIMBURSEMENT AGREEMENT
dated as of
November 20, 1997
among
MOVIEPLEX REALTY LEASING, L.L.C.,
The Lenders Listed Herein,
and
WACHOVIA BANK, N.A.,
as Agent
<PAGE>
REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT dated as of November 20, 1997 among
MOVIEPLEX REALTY LEASING, L.L.C., a New Jersey limited liability company, the
LENDERS listed on the signature pages hereof and WACHOVIA BANK, N.A., as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Certain capitalized terms used in
this Agreement and not defined herein have the meanings set forth in the form of
Lease set forth on Exhibit G and incorporated herein by reference. The terms as
defined in this Section 1.01 shall, for all purposes of this Agreement and any
amendment hereto (except as herein otherwise expressly provided or unless the
context otherwise requires), have the meanings set forth herein:
"Additional Rent" has the meaning set forth in the Lease.
"Additional Rent Collateral Reserve Account" has the meaning
set forth in Section 2.02.
"Adjusted London Interbank Offered Rate" means for any
Interest Period for any Euro-Dollar Rate Tender Advance a rate per annum equal
to the quotient obtained (rounded upwards, if necessary, to the next higher
1/100th of 1%) by dividing (i) the applicable London Interbank Offered Rate for
such Interest Period by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
"Affiliate" of any relevant Person means (i) any Person that
directly, or indirectly through one or more intermediaries, controls the
relevant Person (a "Controlling Person"), (ii) any Person (other than the
relevant Person or a Subsidiary of the relevant Person) which is controlled by
or is under common control with a Controlling Person, or (iii) any Person (other
than a Subsidiary of the relevant Person) of which the relevant Person owns,
directly or indirectly, 20% or more of the common stock or equivalent equity
interests. As used herein, the term "control" means possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agency and Development Agreement" has the meaning set forth
in the Lease.
"Agent" means Wachovia Bank, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as agent for the Lenders hereunder, and its successors and permitted
assigns in such capacity.
"Agent's Letter Agreement" means that certain letter
agreement, dated as of March 18, 1997 between Lessor, Lessee, and the Agent
relating to the structure of the Letters of Credit, and certain fees from time
to time payable by Lessor and Lessee to the Agent, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
<PAGE>
"Agreement" means this Reimbursement Agreement, together with
all amendments, consolidations, modifications, renewals and supplements hereto.
"Applicable Completion Date" has the meaning set forth in the
Lease.
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and Acceptance
executed in accordance with Section 9.08(c) in the form attached as Exhibit C.
"Assignment of Rents" means the Assignment of Rents executed
and delivered by Lessor, substantially in the form of Exhibit J, together with
all amendments, consolidations, modifications, renewals and supplements thereto.
"Authority" has the meaning set forth in Section 8.02.
"Base Rate" means for any Base Rate Tender Advance for any
day, a rate per annum equal to the higher as of such day of (i) the Prime Rate,
or (ii) one-half of one percent above the Federal Funds Rate. For purposes of
determining the Base Rate for any day, changes in the Prime Rate or the Federal
Funds Rate shall be effective on the date of each such change.
"Base Rate Election" has the meaning set forth in Section
2.01(e)(iii).
"Base Rate Tender Advance" means a Tender Advance which bears
or is to bear interest at a rate based upon the Base Rate, and is to be made or
continued as or converted to a Base Rate Tender Advance as a result of a Base
Rate Election pursuant to Section 2.01(e)(iii) or pursuant to the provisions of
Article VIII, as applicable.
"Bonds" means individually and collectively, as the context
shall require, the Series A Bonds and the Series B Bonds.
"Bond Fund" has the meaning set forth in the Indenture.
"Capital Stock" means any nonredeemable limited liability
company membership interests and/or capital stock of Lessor, whether common or
preferred.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. ss. 9601 et. seq. and its implementing
regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
"Change of Law" has the meaning set forth in Section 8.02.
"Closing Certificate" has the meaning set forth in Section
3.01(e).
"Closing Date" means November 20, 1997.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor Federal tax code.
<PAGE>
"Collateral" means any and all collateral security consisting
of personal and/or real property, granted by Lessor or any other Person to
secure the Obligations, including without limitation, all such collateral
security granted under the Operative Documents.
"Commitment" means any one, or more, or all, as the context
shall require, of the LC Issuer Commitments and the LC Participant Commitments.
"Common Member" *[material omitted]
"Common Membership Interests" *[material omitted]
"Compliance Certificate" has the meaning set forth in the
Lease.
"Consolidated Cash Flow" has the meaning set forth in the
Lease.
"Construction Commencement Date" has the meaning set forth in
Section 3.02(c).
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with Lessor, are treated as a single employer
under Section 414 of the Code.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money (including, without
limitation, obligations under leases which are intended to be operating leases
for purposes of GAAP and financing leases for property and bankruptcy purposes),
(ii) all obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (iii) all obligations of such Person to pay the
deferred purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (iv) all obligations of such Person
as lessee under capital leases, (v) all obligations of such Person to reimburse
any bank or other Person in respect of amounts payable under a banker's
acceptance, (vi) all Redeemable Preferred Stock of such Person (in the event
such Person is a corporation), (vii) all obligations of such Person to reimburse
any bank or other Person in respect of amounts paid or to be paid under a letter
of credit or similar instrument, (viii) all Debt of others secured by a Lien on
any asset of such Person, whether or not such Debt is assumed by such Person,
(ix) all obligations of such Person with respect to interest rate protection
agreements, foreign currency exchange agreements or other hedging arrangements
(valued as the termination value thereof computed in accordance with a method
approved by the International Swap Dealers Association and agreed to by such
Person in the applicable hedging agreement, if any), and (x) all Debt of others
Guaranteed by such Person.
"Debt to Cash Flow Ratio" means Lessee's ratio of Consolidated
Funded Debt to Consolidated Cash Flow determined in accordance with Section
2.1(v) of the Lease.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Default Rate" means, with respect to any Reimbursement
Obligations, on any day, the sum of 2% plus the then highest interest rate or
fee which may be applicable hereunder (irrespective of whether any such type of
Reimbursement Obligations or fees are actually outstanding hereunder).
- ---------------
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
<PAGE>
"Deferred Maintenance Obligation" has the meaning set forth in
the Lease.
"Disbursement Request" means a "Requisition", as defined in
the Indenture, by Lessor for a Project Cost Disbursement pursuant to the
Indenture.
"Distribution" means any distribution payable to the Preferred
Member or the Common Members pursuant to and in accordance with the provisions
of the Operating Agreement.
"Distribution Payment Date" has the meaning set forth in
Section 2.02.
"Dividends" means for any period the sum of all dividends and
other distributions paid or declared during such period in respect of any
Capital Stock and Redeemable Preferred Stock (other than dividends paid or
payable in the form of additional Capital Stock).
"Dollars" or "$" means dollars in lawful currency of the
United States of America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in Georgia are authorized by law
to close.
"Eligible Lender" means (i) with respect to an LC Issuer, a
Lender which is rated at least A-1 by S&P and P-1 by Moody's, and (ii) with
respect to an LC Participant, a Lender whose senior debt rating is equal to or
better than a rating of A- by S&P and A3 by Moody's.
"Eligible Preferred Member Assignee" *[material omitted]
"Environmental Authority" means any foreign, federal, state,
local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits,
orders, approvals, notices, registrations or other legal prerequisites for
conducting the business of Lessor required by any Environmental Requirement.
"Environmental Judgments and Orders" means all judgments,
decrees or orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent, or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way associated with
any Environmental Requirements.
"Environmental Notices" means notice from any Environmental
Authority or by any other person or entity, of possible or alleged noncompliance
with or liability under any Environmental Requirement, including without
limitation any complaints, citations, demands or requests from any Environmental
Authority or from any other person or entity for correction of any violation of
any Environmental Requirement or any investigations concerning any violation of
any Environmental Requirement.
- ---------------
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
<PAGE>
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated with any
Environmental Requirement.
"Environmental Releases" means releases as defined in CERCLA
or under any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement
relating to health, safety or the environment and applicable to Lessor or the
Properties, including but not limited to any such requirement under CERCLA or
similar state legislation and all federal, state and local laws, ordinances,
regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Euro-Dollar Rate" means for any Euro-Dollar Rate Tender
Advance for any applicable Interest Period, a rate per annum equal to the sum
of: (i) the Adjusted London Interbank Offered Rate (as determined by the Agent
for each applicable Interest Period, so long as the Euro-Dollar Rate Election is
in effect pursuant to Section 2.01(e)(iii), with reference to the amount of the
Tender Advance); plus (ii) the amount of the fee which would be payable to such
LC Issuer pursuant to Section 2.01(h) if its Letter of Credit had remained
outstanding; plus (iii) 0.25%, for each applicable Interest Period for which the
Euro-Dollar Rate Election is in effect or until, but excluding, the date such
Tender Advance is paid in full.
"Euro-Dollar Rate Election" has the meaning set forth in
Section 2.01(e)(ii).
"Euro-Dollar Rate Tender Advance" means a Tender Advance which
bears or is to bear interest at a rate based upon the Adjusted London Interbank
Offered Rate, and is to be made or continued as or converted to a Euro-Dollar
Rate Tender Advance as a result of a Euro-Dollar Rate Election pursuant to
Section 2.01(e)(iii).
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Tender Advances is
determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of any Lender to United States
residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
"Event of Default" has the meaning set forth in Section 6.01.
"Excess Income" has the meaning set forth in Section 2.02.
<PAGE>
"Expiry Date" means November 5, 2002, or such later date, if
any, to which the Expiry Date has been extended pursuant to Section 2.01(a).
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if the day for which
such rate is to be determined is not a Domestic Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to the Agent on such day on
such transactions, as determined by the Agent.
"Final Project Completion Date" has the meaning set forth in
the Lease.
"Fiscal Quarter" means any fiscal quarter of Lessor.
"Fiscal Year" means any fiscal year of Lessor.
"Fund" means any of the funds established under the Indenture.
"Fund Account Security Agreement" means the Fund Account
Collateral Assignment and Security Agreement executed and delivered by Lessor,
substantially in the form of Exhibit K, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Funded Debt" has the meaning set forth in the Lease.
"GAAP" means generally accepted accounting principles applied
on a basis consistent with those which, in accordance with Section 1.02, are to
be used in making the calculations for purposes of determining compliance with
the terms of this Agreement.
"Governmental Rule" has the meaning set forth in Section
2.01(j).
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to provide collateral security, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
<PAGE>
"Hazardous Materials" includes, without limitation, (a) solid
or hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. ss. 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b)
"hazardous substance", "pollutant", or "contaminant" as defined in CERCLA, or in
any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including, crude oil or any fraction thereof,
(d) toxic substances, as defined in the Toxic Substances Control Act of 1976, or
in any applicable state or local law or regulation and (e) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide,
and Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from time to
time.
"Holders" means holders of the Bonds from time to time
pursuant to the Indenture.
"Impositions" means all fees, costs, taxes, indemnification
amounts, charges and other expenses payable by Lessor under Article VIII, and
Sections 2.01, 2.04, 7.05, Sections 9.03 and 9.04, or under any of the other
Operative Documents.
"Indenture" means that certain indenture by and between the
Trustee and Lessor dated as of November 1, 1997, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Individual Properties" means, individually and collectively,
as the context may require, Movie Theaters acquired, assembled, and/or
constructed on real property owned, or, with the prior written consent of the
Agent and the Lenders, leased, by Lessor, which Individual Properties are then
leased by Lessor, as lessor, to Lessee pursuant to the terms of the Lease.
"Ineligible Lender" means (i) with respect to an LC Issuer, a
Lender which is rated below A-1 by S&P or P-1 by Moody's, and (ii) with respect
to an LC Participant, a Lender whose senior debt rating is below a rating of A-
by S&P or A3 by Moody's.
"Ineligible Lender At Risk Amount" has the meaning set forth
in Section 2.01(b)(ii).
"Interest Period" means, with respect to each Euro-Dollar
Tender Advance, during the period any Euro-Dollar Rate Election is in effect
pursuant to Section 2.01(e)(iii): (i) the period commencing on the date of such
Euro-Dollar Rate Tender Advance and ending on the numerically corresponding day
in the first month thereafter; and (ii) each 1 month period commencing on the
last day of the previous Interest Period and ending on the numerically
corresponding day in the next month thereafter, unless and until Lessor notifies
the Agent and the relevant LC Issuer pursuant to Section 2.01(e)(iii) that it
has elected the Base Rate Election for such Tender Advance (in which event such
Tender Advance shall become a Base Rate Tender Advance on the last day of the
then existing Interest Period); provided that:
(a) any Interest Period (subject to paragraph (c) below) which
would otherwise end on a day which is not a Euro-Dollar Business Day
shall be extended to the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding
Euro-Dollar Business Day;
<PAGE>
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the appropriate subsequent calendar
month) shall, subject to paragraph (c) below, end on the last
Euro-Dollar Business Day of the appropriate subsequent calendar month;
and
(c) no Interest Period shall be effective for a period which
would begin before the maturity date of the relevant Reimbursement Note
and would otherwise end after such maturity date, and in such case,
such Tender Advance shall be treated for such period as a Base Rate
Tender Advance.
"Investment" means any investment in any Person, whether by
means of purchase or acquisition of obligations or securities of such Person,
capital contribution to such Person, loan or advance to such Person, making of a
time deposit with such Person, Guarantee or assumption of any obligation of such
Person or otherwise.
"Land Acquisition Date" has the meaning set forth in Section
3.02(b).
"LC Issuer" means each bank or financial institution listed on
the signature pages hereof as having an LC Issuer Commitment, and its successors
and assigns.
"LC Issuer Commitment" means, with respect to each LC Issuer,
(i) the amount set forth as such opposite the name of such LC Issuer on the
signature pages hereof, and (ii) as to any LC Issuer which enters into any
Assignment and Acceptance (whether as transferor LC Issuer or as Assignee
thereunder), the amount of such LC Issuer's LC Issuer Commitment after giving
effect to such Assignment and Acceptance.
"LC Participant" refers only to participants in the Wachovia
Letter of Credit (and not to any Person which purchases a risk participation in
the Letter of Credit of any LC Issuer (including, but not limited to, Wachovia)
pursuant to Section 9.08(a)), and means each bank or financial institution
listed on the signature pages hereof as having on the Closing Date an LC
Participant Commitment, and its successors and permitted assigns.
"LC Participant Commitment" means, with respect to each LC
Participant, the amount set forth as such opposite the name of such LC Issuer on
the signature pages hereof.
"Lease" means the Master Lease executed and delivered between
Lessor, as landlord, and Lessee, as tenant, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Lease Default" means the occurrence of an Event of Default
under Section 6.01(k).
"Leased Property" has the meaning set forth in the Lease.
"Lender" or "Lenders" means, individually and collectively, as
the context shall require, each LC Issuer and LC Participant.
<PAGE>
"Lending Office" means, as to each Lender, its office located
at its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such
Lender may hereafter designate as its Lending Office by notice to the Lessor and
the Agent.
"Lessee" means Carmike Cinemas, Inc., a Delaware corporation,
and its successors and assigns.
"Lessee Undertaking" means the Lessee Undertaking executed and
delivered by Lessee, substantially in the form of Exhibit H, together with all
amendments, consolidations, modifications, renewals and supplements thereto.
"Lessor" means MOVIEPLEX REALTY LEASING, L.L.C., a New Jersey
limited liability company, and its successors and assigns.
"Letters of Credit" means the commercial letters of credit in
the aggregate face amount of $73,618,958.33 issued by the LC Issuers for the
account of Lessor to the Trustee for the benefit of the Holders pursuant to
Section 2.01, and substantially in the form set forth in Exhibit D, together
with all amendments, consolidations, modifications, renewals and supplements
thereto.
"Letter of Credit Application Agreement" shall mean, with
respect to each LC Issuer and its Letter of Credit, such form of application
therefor (whether in a single or several documents) as such LC Issuer may employ
in the ordinary course of business for its own account, with such modifications
thereto as may by agreed upon by such LC Issuer and Lessor and are not
materially adverse to the interests of the Lenders; provided, however, that in
the event of any conflict between the terms of such Letter of Credit Application
Agreement and this Agreement, the terms of this Agreement shall control.
"Letter of Credit Obligations" shall mean, at any particular
time, the sum of (a) the Reimbursement Obligations at such time, and (b) the
aggregate maximum amount available for drawing under the Letters of Credit at
such time.
"Lien" means, with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest, security
title, preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Agreement, Lessor shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"London Interbank Offered Rate" applicable to any Euro-Dollar
Tender Advance means for the Interest Period of such Euro-Dollar Rate Tender
Advance, the rate per annum determined on the basis of the offered rate for
deposits in Dollars of amounts equal or comparable to the principal amount of
such Euro-Dollar Rate Tender Advance offered for a term comparable to such
Interest Period, which rates appear on the Telerate Page 3750 effective as of
11:00 A.M., London time, 2 Euro-Dollar Business Days prior to the first day of
<PAGE>
such Interest Period, provided that if no such offered rates appear on such
page, the "London Interbank Offered Rate" for such Interest Period will be the
arithmetic average (rounded upward, if necessary, to the next higher 1/100th of
1%) of rates quoted by not less than 2 major banks in New York City, selected by
the Agent, at approximately 10:00 A.M., New York City time, 2 Euro-Dollar
Business Days prior to the first day of such Interest Period, for deposits in
Dollars offered by leading European banks for a period comparable to such
Interest Period in an amount comparable to the principal amount of such
Euro-Dollar Rate Tender Advance.
"Margin Stock" means "margin stock" as defined in Regulations
G, T, U or X.
"Master Assignment" has the meaning set forth in the
Indenture.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition or conditions, occurrence or occurrences, whether or not
related, a material adverse change in, or a material adverse effect upon, any of
(a) the financial condition, operations, business, properties or prospects of
Lessor, (b) the rights and remedies of the Agent or the Lenders or the ability
of Lessor to perform its obligations under the Operative Documents to which it
is a party, as applicable, or (c) the legality, validity or enforceability of
any Loan Document.
"Moody's" means Moody's Investor Service, Inc.
"Mortgage(s)" means, individually and collectively, as the
context requires, each Mortgage executed and delivered by Lessor, substantially
in the form of Exhibit I, together with all amendments, consolidations,
modifications, renewals and supplements thereto.
"Movie Theater(s)" has the meaning set forth in the Lease.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Net Proceeds Collateral Reserve Account" has the meaning set
forth in Section 5.15.
"Obligations" means all present and future indebtedness,
obligations, and liabilities, whether now existing or contemplated or hereafter
arising, of Lessor hereunder to the Agent and the Lenders hereunder, arising
pursuant to, in connection with and/or on account of the provisions of this
Agreement and any of the other Operative Documents, including, without
limitation, the principal of, and interest on, the Letter of Credit Obligations,
any Tender Advance, the Reimbursement Notes, late charges, the Impositions, all
attorney fees and expenses of enforcement and collection against the Lessor
and/or the Collateral, all of the foregoing whether such debts, obligations and
liabilities be direct, indirect, primary, secondary, joint, several, joint and
several, fixed or contingent, and any and all renewals, extensions and
rearrangements of any such debts, obligations and liabilities.
"Officer's Certificate" has the meaning set forth in Section
3.01(f).
<PAGE>
"Operating Agreement" means the Amended and Restated Operating
Agreement of the Lessor dated November 20, 1997 (as amended, modified, restated,
substituted, extended and renewed at any time and from time to time with the
consent of the Agent and the Required Lenders.
"Operative Documents" means this Agreement, the Reimbursement
Notes, the Letters of Credit, the Letter of Credit Application Agreements, the
Lease, the Payment Direction Agreement, the Master Assignment, the Fund Account
Security Agreement, the Mortgages, the Assignments of Rents, the Lessee
Undertaking, any other document evidencing, relating to or securing the Letters
of Credit, and any other document or instrument delivered from time to time in
connection with this Agreement, the Reimbursement Notes or the Letters of
Credit, together with all amendments, consolidations, modifications, renewals
and supplements thereto.
"Other Participant" has the meaning set forth in Section
9.08(b).
"Parent" means Helmstar Group, Inc., a Delaware corporation,
or any other Person which at any time owns, directly or indirectly, all of the
issued and outstanding shares of capital stock or membership interests of the
Common Members, and into whose financial statements the financial statements of
Lessor are consolidated.
"Participant" means, individually and collectively, as the
context shall require, any LC Participant and any Other Participant.
"Payment Direction Agreement" has the meaning set forth in the
Lease.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" has the meaning set
forth in Section 2.03(a).
"Permitted Exceptions", for each Individual Property, has the
meaning set forth in the Applicable Mortgage pertaining to such Individual
Property.
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a trust, joint venture, limited liability company,
or any other entity or organization, including, but not limited to, a government
or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is either (i) maintained by a member
of the Controlled Group for employees of any member of the Controlled Group or
(ii) maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding 5 plan years made contributions.
"Pledged Bonds" has the meaning set forth in the Indenture.
"Preferred Member" *[material omitted]
"Preferred Member's Letter Agreement" *[material omitted]
*Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 246-2.
- ---------------
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
<PAGE>
"Preferred Membership Interests" *[material omitted]
"Prime Rate" refers to that interest rate so denominated and
set by Wachovia from time to time as an interest rate basis for borrowings. The
Prime Rate is but one of several interest rate bases used by Wachovia. Wachovia
lends at interest rates above and below the Prime Rate.
"Project Cost" means "Costs" or "Costs of the Projects", as
those terms are defined in the Lease.
"Project Cost Disbursement" means a disbursement by the
Trustee from the Project Fund for Project Cost pursuant to a Disbursement
Request.
"Project Cost Investments" means investments which will be
contributed as equity by the Preferred Member to Lessor to defray a part of
Project Cost.
"Project Fund" has the meaning set forth in the Indenture.
"Properties" means all real property owned, leased or
otherwise used or occupied by Lessor and leased to Lessee under the Lease from
time to time, wherever located.
"Redeemable Preferred Stock" of any Person means any preferred
stock issued by such Person which is at any time prior to the Expiry Date either
(i) mandatorily redeemable (by sinking fund or similar payments or otherwise) or
(ii) redeemable at the option of the holder thereof.
"Regulation G" means Regulation G of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation T" means Regulation T of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Reimbursement Note" means a separate note substantially in
the form of Exhibit L (together with all amendments, consolidations,
modifications, renewals and supplements thereto, to be executed and delivered by
Lessor to each LC Issuer pursuant to Section 3.01(k), to evidence any Tender
Advance of such LC Issuer made pursuant to Section 2.01(e)(iii).
"Reimbursement Obligations" means the reimbursement or
repayment obligations of Lessor to the LC Issuers pursuant to Section 2.01 with
respect to the Letters of Credit, including, without limitation, the obligation
to repay any Tender Advance made by any LC Issuer.
"Reimbursement Obligations Collateral Reserve Account" has the
meaning set forth in clause (iv) of Section 6.01.
- ---------------
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
<PAGE>
"Reimbursement Obligations (Series A Bonds)" means
Reimbursement Obligations relating to draws under the Letters of Credit for
payments on the Series A Bonds (or to any Tender Advance made under such Letters
of Credit).
"Reimbursement Obligations (Series B Bonds)" means
Reimbursement Obligations relating to draws under the Letters of Credit for
payments on the Series B Bonds (or to any Tender Advance made under such Letters
of Credit).
"Remarketing Agent" has the meaning set forth in the
Indenture.
"Remarketing Failure" means the inability of the Remarketing
Agent to remarket the Bonds covered by any Letter of Credit for any reason other
than a Lease Default.
"Rents" has the meaning set forth in the Lease.
"Required Lenders" means at any time Lenders having at least
66 2/3% of the aggregate amount of the Letter of Credit Obligations (but for
such purpose, with respect to the Wachovia Letter of Credit, Wachovia and the LC
Participants shall be treated as ratable holders of the Letter of Credit
Obligations pertaining thereto in accordance with their respective Wachovia
Letter of Credit Shares).
"Reserve Fund" has the meaning set forth in the Lease.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of Lessor's Capital Stock (except dividends payable
solely in shares of its Capital Stock) or (ii) any payment on account of the
purchase, redemption, retirement or acquisition of (a) any shares of Lessor's
Capital Stock (except shares acquired upon the conversion thereof into other
shares of its Capital Stock) or (b) any option, warrant or other right to
acquire shares of Lessor's Capital Stock.
"Revolving Credit Agreement" means the "Credit Agreement", as
that term is defined in the Lease.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
"Series A Bonds" means those Bonds issued pursuant to the
provisions of the Indenture in the aggregate amount of $59,775,000, consisting
of the Series A-1 Bonds in the aggregate amount of $35,125,000, the Series A-2
Bonds in the aggregate amount of $12,325,000 and the Series A-3 Bonds in the
aggregate amount of $12,325,000, in each case as defined as such in the
Indenture.
"Series A Bonds Scheduled Payment Drawing" has the meaning set
forth in the Letter of Credit.
"Series B Bonds" means those Bonds issued pursuant to the
provisions of the Indenture in the aggregate amount of $12,975,000, consisting
of the Series B-1 Bonds in the aggregate amount of $7,625,000, the Series B-2
Bonds in the aggregate amount of $2,675,000 and the Series B-3 Bonds in the
aggregate amount of $2,675,000, in each case as defined as such in the
Indenture.
<PAGE>
"Series B Bonds Scheduled Payment Drawing" has the meaning set
forth in the Letter of Credit.
"Subsidiary" means, with respect to any Person, any
corporation or other entity of which securities or other ownership interests
having ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions are at the time directly or
indirectly owned by such Person.
"Supplemental Lease" has the meaning set forth in the Lease.
"Taxes" has the meaning set forth in Section 2.06(c).
"Tender Advance" has the meaning set forth in Section
2.01(e)(iii).
"Tender Drawing" has the meaning set forth in the Letter of
Credit.
"Transferee" has the meaning set forth in Section 9.08(d).
"Trustee" means First Union National Bank, the trustee under
the Indenture for the Holders of the Bonds, and such trustee's successors and
assigns.
"Unfunded Vested Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the present value of all vested
nonforfeitable benefits under such Plan exceeds (ii) the fair market value of
all Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the extent that such excess
represents a potential liability of a member of the Controlled Group to the PBGC
or the Plan under Title IV of ERISA.
"Wachovia" means Wachovia Bank, N.A., a national banking
association, and its successors.
"Wachovia Letter of Credit" means the Letter of Credit issued
by Wachovia.
"Wachovia Letter of Credit Share" means (i) with respect to
Wachovia, the amount of its LC Issuer Commitment, less the aggregate amount of
the LC Participant Commitments, and (ii) with respect to each LC Participant,
the amount of its LC Participant Commitment.
Section 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared,
in accordance with GAAP, applied on a basis consistent (except for changes
concurred in by Lessor's independent public accountants or otherwise required by
a change in GAAP) with the most recent audited consolidated financial statements
of Parent and its consolidated Subsidiaries delivered to the Lenders.
Section 1.03. References. Unless otherwise indicated,
references in this Agreement to "Articles", "Exhibits", "Schedules", "Sections"
and other Subdivisions are references to articles, exhibits, schedules, sections
and other subdivisions hereof.
<PAGE>
Section 1.04. Use of Defined Terms. All terms defined in this
Agreement shall have the same defined meanings when used in any of the other
Operative Documents, unless otherwise defined therein or unless the context
shall require otherwise.
Section 1.05. Terminology. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural, and the plural
shall include the singular. Titles of Articles and Sections in this Agreement
are for convenience only, and neither limit nor amplify the provisions of this
Agreement.
ARTICLE II
THE CREDITS
SECTION 2.01. Letter of Credit Facility
(a) Obligation to Issue; Expiry Date. Subject to the terms and
conditions of this Agreement, and in reliance upon the representations and
warranties of Lessor herein set forth, and subject to all terms and conditions
hereof, the LC Issuers shall issue for the account of Lessor, the Letters of
Credit on the Closing Date, with each LC Issuer issuing a Letter of Credit to
cover a different subseries of the Series A Bonds and the Series B Bonds (i.e.
the Agent will issue a Letter of Credit to cover the Series A-1 Bonds and the
Series B-1 Bonds, SunTrust Bank, Atlanta will issue a Letter of Credit to cover
the Series A-2 Bonds and the Series B-2 Bonds and The Bank of New York will
issue a Letter of Credit to cover the Series A-3 Bonds and the Series B-3
Bonds). The Letters of Credit shall expire on the Expiry Date, unless extended
at the request of Lessor, which extension shall be subject to the sole
discretion of the LC Issuers, the Agent and each of the LC Participants, on
terms mutually agreeable to the Agent, the LC Issuers, the LC Participants, and
Lessor. In the event that Lessor requests in writing that the Expiry Date be
extended, Lessor shall so notify the Agent, the LC Issuers and the LC
Participants not more than 180 days prior to the then scheduled Expiry Date. The
Agent, on behalf of the LC Issuers and the LC Participants, shall give notice to
Lessor within 90 days after receipt of such request for extension, and, if such
extension is approved, set forth therein the terms and conditions for such
extension and the new Expiry Date.
(b) Ineligible Lenders.
(i) In the event that any LC Issuer becomes an Ineligible
Lender at any time, then, in such event, such Ineligible Lender shall
notify the Agent, Lessor and Lessee thereof within 20 days of such
occurrence, and such Ineligible Lender shall attempt, and the Lessor
shall be entitled, to provide a confirming bank or a replacement LC
Issuer, in each case acceptable to Lessee and the Agent, which will be
an Eligible Lender.
(ii) In the event that any LC Participant becomes an
Ineligible Lender at any time, then, in such event, such Ineligible
Lender shall notify Wachovia and Lessee thereof within 20 days of such
occurrence, and:
<PAGE>
(1) within 90 days after such occurrence, such
Ineligible Lender shall either (x) find a replacement LC
Participant acceptable to Lessee and the Agent, which will be
an Eligible Lender, or (y) provide the Agent with cash
collateral in an aggregate amount (the "Ineligible Lender At
Risk Amount") equal to such Ineligible Lender's Wachovia
Letter of Credit Share; and
(2) if the requirements of clause (1) above have not
been satisfied within such 90 day period, Lessee must, within
5 days after the end of such 90 day period, make a payment to
Lessor in an amount sufficient to enable Lessor to make a
prepayment on the Bonds (which Lessor agrees to do) in the
amount of the Ineligible Lender At Risk Amount and in such
event, (x) the Wachovia Letter of Credit shall be reduced
accordingly, and any such reduction of the Wachovia Letter of
Credit shall be applicable only to the risk participation of
such Ineligible Lender.
(c) Conditions. In addition to being subject to the
satisfaction of the conditions contained in Article III, the obligation of the
LC Issuers to issue the Letters of Credit is subject to the satisfaction in full
of the following conditions:
(i) Lessor shall have delivered to each of the LC Issuers at
such times and in such manner as the LC Issuers may prescribe, its
Letter of Credit Application Agreement and such other documents and
materials as may be required pursuant to the terms thereof all
satisfactory in form and substance to such LC Issuer and the terms of
the proposed Letters of Credit shall be satisfactory in form and
substance to the LC Issuer; and
(ii) as of the date of issuance no order, judgment or decree
of any court, arbitrator or Authority shall purport by its terms to
enjoin or restrain any of the LC Issuers from issuing its Letter of
Credit and no law, rule or regulation applicable to the LC Issuer and
no request or directive (whether or not having the force of law) from
any Authority with jurisdiction over any of the LC Issuers shall
prohibit or request that such LC Issuer refrain from the issuance of
letters of credit generally or the issuance of that Letter of Credit.
(d) Issuance. Upon the satisfaction of all conditions set
forth herein, the LC Issuers shall issue the Letters of Credit. Upon the Closing
Date, each of the LC Issuers shall furnish to the Agent a copy of the executed
Letter of Credit, Letter of Credit Application Agreement and other documentation
relating to the Letter of Credit issued by it pursuant to this Agreement. Upon
the request of any Lender, the Agent shall furnish to such Lender copies of each
Letter of Credit, Letter of Credit Application Agreement and other documentation
relating to Letter of Credit issued pursuant to this Agreement.
(e) Reimbursement Obligations; Duties of the LC Issuers.
Notwithstanding any provisions to the contrary in any Letter of Credit
Application Agreement:
<PAGE>
(i) Lessor shall reimburse the Agent, on behalf of
all of the LC Issuers, for the aggregate amount of all drawings under
the Letters of Credit no later than 1 Domestic Business Day after the
payment by the Agent, except as provided in clause (iii) below, and the
Agent shall promptly remit such reimbursement ratably to the LC
Issuers;
(ii) except as provided in clause (iii) below, any
Reimbursement Obligation with respect to the Letters of Credit shall
bear interest from the date of the relevant drawing under the Letters
of Credit until the date of payment in full thereof at a rate per annum
equal to (A) prior to the date that is 3 Domestic Business Days after
the date of the related payment by the LC Issuers, the Base Rate and
(B) thereafter, the Default Rate.
(iii) If any Tender Drawing occurs under any Letter
of Credit as a result of a Remarketing Failure, the Remarketing Agent
shall so notify Lessor, the Agent and the relevant Issuer, and the
resulting Reimbursement Obligations to the LC Issuer upon whom such
Tender Drawing is made shall be deemed satisfied, so long as no Event
of Default is in existence, by an advance by such LC Issuer (a "Tender
Advance") in an amount equal to the amount of such Tender Drawing. The
Tender Advance will be evidenced by the Reimbursement Note held by such
LC Issuer. All outstanding principal under the Reimbursement Note shall
be due and payable on the earlier of (x) 18 months after the making
thereof and (y) the Expiry Date. The Tender Advance will bear interest
at a rate per annum (computed on the basis of the actual number of days
elapsed over a year of 360 days) equal to, at the option of Lessee,
exercised as provided below, either the Base Rate, as a Base Rate
Tender Advance (the "Base Rate Election"), or the Euro-Dollar Rate, as
a Euro-Dollar Rate Tender Advance (the "Euro-Dollar Rate Election").
Upon the Remarketing Failure, the Tender Advance shall be a Base Rate
Tender Advance and shall continue as a Base Rate Tender Advance until
notice in writing to the Agent and the relevant LC Issuer of the
election of the Euro-Dollar Rate Election, which notice shall specify
the first day of the Interest Period therefor, which must be at least 3
Euro-Dollar Business Days after the giving of such notice. At any time
at least 1 Domestic Business Day prior to the last day of any Interest
Period during which the Euro-Dollar Rate Election is in effect, Lessor
may give notice in writing to the Agent and the relevant LC Issuer of
the election of the Base Rate Election, which election shall take
effect on the last day of the current Interest Period. At any time
during which the Base Rate Election is in effect, Lessee (acting on
behalf of Lessor) may give notice in writing to the Agent and the
relevant LC Issuer of the election of the Euro-Dollar Rate Election,
which election shall take effect on the date specified in such notice,
which must be at least 3 Euro-Dollar Business Days after the giving of
such notice. Each of the Base Rate Election and the Euro-Dollar Rate
Election must be elected (x) only as to all principal amounts
outstanding under any Tender Advance, and (y) if more than one LC
Issuer has made a Tender Advance which is still outstanding, as to all
Tender Advances. Notwithstanding the foregoing, if the principal of or
accrued interest on any Tender Advance is not paid when due (including,
without limitation, as a result of acceleration of the maturity of the
related Reimbursement Note pursuant to Section 6.01(ii)), interest on
the unpaid principal amount of such Tender Advance shall accrue at the
Default Rate. Accrued interest on Tender Advances will be payable (i)
on the first Monday of day of each calendar month, as to Base Rate
<PAGE>
Tender Advances, and (ii) on the last day of each Interest Period, as
to Euro-Dollar Rate Tender Advances. Upon prior notice (which notice
shall be irrevocable), Lessor may prepay any Tender Advance, without
penalty or premium, but subject to compensation for any funding losses
as a result of any prepayment other than on the last day of an Interest
Period, as to Euro-Dollar Rate Tender Advances, determined in
accordance with Section 8.05. In addition, at any time after 90 days
after the occurrence of a Remarketing Failure (or such earlier date as
may be applicable as provided in Section 2.01(b)(iii) under the
circumstances set forth therein), Lessor shall be entitled to replace
such LC Issuer.
Any action taken or omitted to be taken by the Agent or the LC Issuers in
connection with the Letters of Credit, if taken or omitted in the absence of
willful misconduct or gross negligence, shall not put the Agent or the LC
Issuers under any resulting liability to any other LC Issuer or LC Participant,
or assuming that the Agent and Wachovia have complied with the procedures
specified in this Section and such has not given a notice contemplated hereby
that continues in full force and effect, relieve any LC Participant of its
obligations hereunder to the Agent or Wachovia. In determining whether to pay
under the Letters of Credit, the Agent and the LC Issuers shall have no
obligation relative to the other LC Issuers or to the LC Participants other than
to confirm that any documents required to have been delivered under its Letter
of Credit appear to comply on their face, with the requirements of such Letter
of Credit.
(f) Participations. (i) Immediately upon issuance by Wachovia
of the Wachovia Letter of Credit in accordance with the procedures set forth
herein, each LC Participant shall be deemed to have irrevocably and
unconditionally purchased and received from Wachovia, as the LC Issuer, without
recourse or warranty, an undivided interest and participation, to the extent of
such LC Participant's LC Participant Commitment, in the Wachovia Letter of
Credit (or guaranty pertaining thereto).
(ii) In the event that Wachovia makes any payment under the
Wachovia Letter of Credit for which Lessor shall not have repaid such amount to
the Agent pursuant hereto, Wachovia shall inform the Agent and the Agent shall
promptly notify each LC Participant of such failure, and each LC Participant
shall promptly and unconditionally pay to Wachovia such LC Participant's
Wachovia Letter of Credit Share of the amount of such payment in Dollars and in
same day funds. If the Agent so notifies such LC Participant prior to 10:00 A.M.
(Atlanta, Georgia time) on any Domestic Business Day, such LC Participant shall
make available to Wachovia its Wachovia Letter of Credit Share of the amount of
such payment on such Domestic Business Day in same day funds. If and to the
extent such LC Participant shall not have so made its Wachovia Letter of Credit
Share of the amount of such payment available to Wachovia, such LC Participant
agrees to pay to Wachovia forthwith on demand such amount together with interest
thereon, for each day from the date such payment was first due until the date
such amount is paid to Wachovia at the Base Rate for the first 3 days and
thereafter at the Default Rate. The failure of any LC Participant to make
available to Wachovia its Wachovia Letter of Credit Share of any such payment
shall neither relieve nor increase the obligation of any other LC Participant
hereunder to make available to Wachovia its Wachovia Letter of Credit Share of
any payment on the date such payment is to be made.
(iii) Whenever the Agent receives a payment on account of a
Reimbursement Obligation pertaining to the Wachovia Letter of Credit, including
any interest thereon, as to which the Agent has received any payments from the
LC Participants pursuant hereto, it shall promptly pay to Wachovia its Wachovia
<PAGE>
Letter of Credit Share thereof and to each LC Participant which has funded its
participating interest therein, in Dollars and in the kind of funds so received,
an amount equal to such LC Participant's Wachovia Letter of Credit Share
thereof. Each such payment shall be made by the Agent on the Domestic Business
Day on which the funds are paid to such Person, if received prior to 10:00 am.
(Atlanta, Georgia time) on such Domestic Business Day, and otherwise on the next
succeeding Domestic Business Day.
(iv) The obligations of the LC Participants to make payments
to Wachovia with respect to the Wachovia Letter of Credit shall be irrevocable,
not subject to any qualification or exception whatsoever and shall be made in
accordance with, but not subject to, the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(A) any lack of validity or enforceability of this
Agreement or any of the other Operative Documents;
(B) the existence of any claim, set-off, defense or
other right which any LC Participant may have at any time against the
Trustee or any Holder, the Agent, Wachovia, Lessor or any other Person,
whether in connection with this Agreement, the Wachovia Letter of
Credit, the transactions contemplated herein or any unrelated
transactions;
(C) any draft, certificate or any other document
presented under the Wachovia Letter of Credit proves to be forged,
fraudulent, invalid or insufficient (other than on its face) in any
respect or any statement therein being untrue or inaccurate in any
respect, except payment resulting from the gross negligence or willful
misconduct of Wachovia or the Agent;
(D) the surrender or impairment of any security for
the performance or observance of any of the terms of any of the
Operative Documents;
(E) payment by Wachovia under the Wachovia Letter of
Credit proving to be forged, fraudulent, invalid or insufficient (other
than on its face) in any respect or any statement therein being untrue
or inaccurate in any respect, except payment resulting from the gross
negligence or willful misconduct of the Agent or Wachovia;
(F) payment by Wachovia under the Wachovia Letter of
Credit against presentation of any draft or certificate that does not
comply with the terms of such Wachovia Letter of Credit, except payment
resulting from the gross negligence or willful misconduct of the Agent
or Wachovia; or
(G) any other circumstances or happenings whatsoever,
whether or not similar to any of the foregoing, except circumstances or
happenings resulting from the gross negligence or willful misconduct of
the Agent or Wachovia.
(g) Payment of Reimbursement Obligations. Lessor agrees to
pay to the Agent, on behalf of the LC Issuers (and, if applicable, the LC
Participants) the amount of all Reimbursement Obligations, interest and other
amounts payable to the LC Issuer under or in connection with the Letters of
Credit immediately when due, irrespective of:
<PAGE>
(i) any lack of validity or enforceability of this
Agreement or any of the other Operative Documents;
(ii) the existence of any claim, set-off, defense or
other right which Lessor may have at any time against the Trustee or
any Holder, the Agent, any Lender or any other Person, whether in
connection with this Agreement, the Letters of Credit, the transactions
contemplated herein or any unrelated transactions;
(iii) any draft, certificate or any other document
presented under any of the Letters of Credit proves to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for
the performance or observance of any of the terms of any of the
Operative Documents;
(v) payment by any of the LC Issuers under any of the
Letters of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(vi) payment by any of the LC Issuers under any of
the Letters of Credit against presentation of any draft or certificate
that does not comply with the terms of such Letter of Credit, except
payment resulting from the gross negligence or willful misconduct of
the Agent or such LC Issuer; or
(vii) any other circumstances or happenings
whatsoever, whether or not similar to any of the foregoing, except
circumstances or happenings resulting from the gross negligence or
willful misconduct of the Agent or any of the LC Issuers.
In the event any payment by or on behalf of Lessor received by the Agent, any LC
Issuer or any LC Participant is thereafter set aside, avoided or recovered in
connection with any receivership, liquidation or bankruptcy proceeding, each LC
Issuer and LC Participant that received such distribution shall, upon demand
contribute such LC Issuer's pro rata share (based on the LC Issuer Commitment of
each LC Issuer other than Wachovia, and the Wachovia Letter of Credit Share of
Wachovia and each LC Participant) of the amount set aside, avoided or recovered
together with interest at the rate required to be paid by the LC Issuer upon the
amount required to be repaid by it.
Nothing in the foregoing shall limit or abridge the right of Lessor to assert
any rights it may have against the Agent, the Lenders, or any other Person in a
separate action or proceeding.
<PAGE>
(h) Letter of Credit Fees. (i) Lessor and each LC Participant
shall pay to Wachovia, for its own account, with respect to the issuance of the
Wachovia Letters of Credit, an annual letter of credit facing fee equal to the
product of (x) *[material omitted], times (y) the face amount of the Wachovia
Letter of Credit on the date the fee is required to be paid pursuant hereto,
times (z) the percentage (expressed as a decimal) which the aggregate Wachovia
Letter of Credit Shares held by the LC Participants bears to the aggregate of
all Wachovia Letter of Credit Shares (with Lessor paying such fee to the extent
it accrues with respect to *[material omitted] of each LC Participant's Wachovia
Letter of Credit Share, and each LC Participant paying such fee to the extent it
accrues with respect to its Wachovia Letter of Credit Share in excess of
*[material omitted], payable quarterly in advance on the Closing Date and on the
last Domestic Business Day of each calendar quarter thereafter. No facing fee
shall be payable to any LC Issuer with respect to any Other Participant.
(ii) On the Closing Date, Lessor shall pay to the
Agent, for distribution to each of the LC Issuers and LC Participants,
an upfront letter of credit fee (to be shared ratably, based on the LC
Issuer Commitment of each LC Issuer other than Wachovia, and the
Wachovia Letter of Credit Share of Wachovia and each LC Participant) in
an amount equal to *[material omitted] of the initial face amount of
the Letters of Credit.
(iii) Lessor shall pay to the Agent, for distribution
to each of the LC Issuers and LC Participants an annual letter of
credit fee (to be shared ratably, based on the LC Issuer Commitment of
each LC Issuer other than Wachovia, and the Wachovia Letter of Credit
Share of Wachovia and each LC Participant) with respect to the Series A
Bond (Stated Amount) and the Series B Bond (Stated Amount) (as both
terms are defined in the Letters of Credit), in an amount equal to the
percentage determined by reference to the Debt to Cash Flow Ratio and
the table set forth in Section 2.03(a), payable quarterly in advance on
the Closing Date and on the last day of each calendar quarter.
(iv) Lessor shall pay to each of the LC Issuers,
solely for its own account, the standard charges assessed by such LC
Issuer in connection with the issuance, administration, amendment and
payment or cancellation of the Letter of Credit issued by it, which
charges shall be those typically charged by such LC Issuer to its
customers generally having credit and other characteristics similar to
Lessor, as determined in good faith by such LC Issuer.
(i) Indemnification; Exoneration. (i) In addition to amounts
payable as elsewhere provided in this Section 2.01, Lessor shall protect,
indemnify, pay and save the Agent, each LC Issuer and each LC Participant
harmless from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable attorneys' fees) which
the Agent, any LC Issuer, or any LC Participant may incur or be subject to as a
consequence of the issuance of the Letters of Credit for Lessor's account other
than as a result of its gross negligence or willful misconduct, as determined by
a court of competent jurisdiction.
- ---------------
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
<PAGE>
(ii) As between Lessor, the Agent, the LC Issuers and the LC
Participants, Lessor assumes all risks of the acts and omissions of, or misuse
of the Letters of Credit by the Trustee. In furtherance and not in limitation of
the foregoing, the Agent, the LC Issuers and the LC Participants shall not be
responsible for (A) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with the
application for and issuance of the Letters of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent
or forged, (B) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign the Letters of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason, (C) failure of the
Trustee to comply duly with conditions required in order to draw upon such
Letters of Credit, (D) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher, for errors in interpretation of
technical terms, (E) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under the Letters of Credit or of
the proceeds thereof, (F) the misapplication by the Trustee of the proceeds of
any drawing under such Letters of Credit; and (G) any consequences arising from
causes beyond the control of the Agent, the LC Issuers, and/or the LC
Participant.
(iii) In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken or omitted by
the Agent or the LC Issuers under or in connection with the Letters of Credit or
any related certificates, if taken or omitted in good faith and with reasonable
care, shall not put the Agent, any LC Issuer or any LC Participant under any
resulting liability to Lessor or relieve Lessor of any of its obligations
hereunder to any such Person.
(j) Credit Yield Protection; Capital Adequacy. If the
adoption after the date hereof of any applicable law, statute, rule, regulation,
ordinance, writ, injunction, decree, order, judgment, guideline or decision of
any Authority ("Governmental Rule"), any change after the date hereof in any
interpretation or administration of any applicable Governmental Rule by any
Person charged with its interpretation or administration or compliance by any LC
Issuer, or any LC Participant (or its Lending Office) with any request or
directive (whether or not having the force of law) of any such Person:
(i) shall subject any LC Issuer or any LC Participant (or its
Lending Office) to any tax (other than overall net income taxation),
duty or other charge with respect to any amount drawn on any Letter of
Credit or its obligation to make any payment under any Letter of
Credit, or to maintain any Letter of Credit, or shall change the basis
of taxation (other than overall net income taxation) of payments to any
LC Issuer, or any LC Participant (or its Lending Office) of any amounts
due under this Agreement or any amount drawn on any Letter of Credit;
or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors
of the Federal Reserve System or any Person regulating insurance
activities or insurance companies), special deposit or similar
requirements against assets of, deposits with or for the account of,
credit extended by, letters of credit issued or maintained by, or
collateral subject to a lien in favor of any LC Issuer, or any LC
Participant (or its Lending Office), or shall impose on any LC Issuer,
or any LC Participant (or its Lending Office) any other condition
affecting any amount drawn on any Letter of Credit, or its obligation
to make any payment under any Letter of Credit, as the case may be, or
to maintain any Letter of Credit; then the remaining provisions of this
<PAGE>
Section 2.01(j)(ii) shall apply. If the result of any of the foregoing
(without regard to whether any LC Issuer or any LC Participant shall
have sold participations in its respective obligations under this
Agreement) is to increase the cost to or to impose a cost on any LC
Issuer or any LC Participant (or its Lending Office) of making or
maintaining any amounts payable hereunder, of maintaining any Letter of
Credit, or to reduce the amount of any sum received or receivable by
any LC Issuer or any LC Participant (or its Lending Office) under any
Letter of Credit, then:
(A) such LC Issuer or such LC Participant shall
promptly deliver to Lessor a certificate stating the change
which has occurred or the reserve requirements or other
conditions which have been imposed on such LC Issuer or such
LC Participant (or its Lending Office) or the request,
direction or requirement with which it has complied, together
with the date thereof; and
(B) Lessor shall pay to such LC Issuer or such LC
Participant within 15 days of written request (which request
shall state the amount of increased cost, reduction or payment
and the way in which such amount has been calculated), such
amount or amounts as will compensate such LC Issuer or such LC
Participant for the additional cost, reduction of return or
payment incurred by such LC Issuer or such LC Participant;
provided, that no such LC Issuer or LC Participant shall be
entitled to any such compensation for any such additional
cost, reduction of return or payment incurred more than 45
days prior to the date of its written demand for such
compensation. The written request of such LC Issuer or such LC
Participant as to the additional amounts payable pursuant to
this paragraph delivered to Lessor shall be conclusive
evidence of the amount thereof in the absence of manifest
error.
(iii) If any LC Issuer or any LC Participant shall have
determined that after the date hereof the adoption of any applicable
law, rule or regulation regarding capital adequacy, or any change
therein, or any change in the interpretation or administration thereof,
or compliance by such LC Issuer or LC Participant (or its Lending
Office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any Authority, has or would
have the effect of reducing the rate of return on such LC Issuer's or
LC Participant's capital as a consequence of its obligations hereunder
to a level below that which such LC Issuer or LC Participant could have
achieved but for such adoption, change or compliance (taking into
consideration such LC Issuer's or LC Participant's policies with
respect to capital adequacy) by an amount deemed by such LC Issuer or
LC Participant to be material, then from time to time, within 15 days
after demand by such LC Issuer or LC Participant, Lessor shall pay to
such LC Issuer or LC Participant such additional amount or amounts as
will compensate such LC Issuer or LC Participant for such reduction;
provided, that no such LC Issuer or LC Participant shall be entitled to
any such compensation for any such reduction of return incurred more
than 45 days prior to the date of its written demand for such
compensation.
<PAGE>
(iv) Each LC Issuer or LC Participant will promptly notify
Lessor, Lessee and the Agent of any event of which it has knowledge,
occurring after the date hereof, which will entitle such LC Issuer or
LC Participant to compensation pursuant to this Section and will
designate a different Lending Office if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in
the judgment of such LC Issuer or LC Participant, be otherwise
disadvantageous to such LC Issuer or LC Participant. A certificate of
any LC Issuer or LC Participant claiming compensation under this
Section and setting forth the additional amount or amounts to be paid
to it hereunder shall be conclusive in the absence of manifest error.
In determining such amount, such LC Issuer or LC Participant may use
any reasonable averaging and attribution methods.
(v) The provisions of this Section 2.01(j) shall be applicable
with respect to any Participant, Assignee or other Transferee, and any
calculations required by such provisions shall be made based upon the
circumstances of such Participant, Assignee or other Transferee.
(k) Replacement of LC Issuer or LC Participant. In the event that any
LC Issuer or LC Participant gives any notice requesting compensation under
Section 2.01(j) then, so long as the condition giving rise to such compensation
exists, Lessee (acting on behalf of Lessor) may designate another bank or
financial institution (such bank or financial institution being herein called a
"Replacement LC Issuer" or "Replacement LC Participant", as the case may be)
which is an Eligible Lender and which is acceptable to the Agent (which
acceptance will not be unreasonably withheld) and which is not an Affiliate of
Lessor or Common Members, to issue a replacement Letter of Credit or assume such
LC Participant Commitment hereunder and upon such replacement or assumption, and
subject to the execution and delivery to the Agent by the Replacement LC Issuer
or LC Participant of an Assignment and Acceptance, and, with respect to a
Replacement LC Issuer, delivery of its replacement Letter of Credit to the
Trustee, the Replacement LC Issuer or Replacement LC Participant shall succeed
to the rights and obligations of such LC Issuer or LC Participant hereunder. In
the event that Lessee (acting on behalf of Lessor) exercises Lessor's rights
under the preceding sentence, the LC Issuer or LC Participant against which such
rights were exercised shall no longer be a party hereto or have any rights or
obligations hereunder; provided that the obligations of the Lessor to such LC
Issuer or LC Participant under Sections 2.01 and 9.03 with respect to events
occurring or obligations arising before or as a result of such replacement shall
survive such exercise.
Section 2.02. Additional Rent Collateral Reserve Account. All
Rent received by the Agent pursuant to the Payment Direction Agreement which is
attributable to Additional Rent as contemplated in the Payment Direction
Agreement shall be deposited in a collateral reserve account (the "Additional
Rent Collateral Reserve Account"), to be held subject to the provisions of this
Section 2.02. All amounts in the Additional Rent Collateral Reserve Account
shall secure the Obligations. If and to the extent that the Agent receives
notice from Lessor, as contemplated below, that a Distribution has been declared
in an amount equal to any part of such Additional Rent, then provided that no
Event of Default is in existence, the Agent shall (and hereby is authorized and
directed by Lessor and the Lenders to do so automatically upon receipt of such
notice and without further authorization from Lessor or the Lenders) apply
amounts held in the Additional Rent Collateral Reserve Account, up to the amount
of such Distribution, to payment to the Preferred Member and (if applicable) to
Lessor, for distribution to the Common Members, of the amount of such
<PAGE>
Distribution. Pursuant to the Operating Agreement, if on any date for payment of
any Distribution (a "Distribution Payment Date"), the amount of (x) any
Distribution, together with the aggregate amount of all prior Distributions,
would exceed (y) the amount of the cumulative net income of Lessor during the
period from the Closing Date to such Distribution Payment Date (the amount of
such excess of (x) over (y) being the "Excess Income"), then the amount of such
Distribution so declared by Lessor and notified to the Agent shall exclude the
Excess Income, which shall remain in the Additional Rent Collateral Reserve
Account, subject to the provisions hereof.
Section 2.03. Determination of Letter of Credit Fees and
Portion of Euro-dollar Rate. (a) In determining Letter of Credit Fees payable
pursuant to Section 2.01(h)(iii) and the component of the Euro-Dollar Rate with
respect to Tender Advances contained in clause (ii) of the definition of
Euro-Dollar Rate, such fees and Euro-Dollar Rate component shall be:
(i) for the period commencing on the Closing Date to and
including the first Performance Pricing Determination Date, (A) for Letter of
Credit Fees Series A Bond (Stated Amount), *[material omitted]; and (B) for
Letter of Credit Fees Series B Bond (Stated Amount), *[material omitted]; and
(ii) from and after the first Performance Pricing Determination Date,
the percentage determined on each Performance Pricing Determination Date by
reference to the table set forth below as to the Letter of Credit Fees Series A
Bond (Stated Amount) and the Letter of Credit Fees Series B Bond (Stated
Amount), respectively, and the Debt to Cash Flow Ratio for the quarterly or
annual period ending immediately prior to such Performance Pricing Determination
Date.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Debt to Cash Flow Ratio less than or greater than greater than greater than greater than
equal to 2.0 2.0 to 1.0 but 3.0 to 1.0 but 4.00 to 1.0 4.25 to 1.0
to 1.0 less than or less than or but less than
equal to 3.0 equal to or equal to
to 1.0 4.0 to 1.0 4.25 to 1.0
Letter of Credit Fees
Series A Bond (Stated * * * * *
Amount) [material [material [material [material [material
omitted] omitted] omitted] omitted] omitted]
Letter of Credit Fees
Series B Bond (Stated * * * * *
Amount) [material [material [material [material [material
omitted] omitted] omitted] omitted] omitted]
</TABLE>
In making such determinations, Lessee, the Agent and the Lenders shall
refer to Lessee's most recent consolidated quarterly or annual (as the case may
be) financial statements delivered pursuant to Section 2.1(s)(i) and (ii) of the
Lease. If such financial statements require a change in Letter of Credit fees
pursuant to Section 2.01(h)(iii) and the component of the Euro-Dollar Rate with
- ----------
*Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 24b-2.
<PAGE>
respect to Tender Advances contained in clause (ii) of the definition of
Euro-Dollar Rate, Lessor shall deliver to the Agent, along with such financial
statements, respective notices to that effect, which notices shall set forth in
reasonable detail the calculations supporting the required change. The
"Performance Pricing Determination Date" is the date which is the last date on
which such financial statements are permitted to be delivered pursuant to
Section 2.1(s) of the Lease. Any such required change shall become effective on
such Performance Pricing Determination Date, and shall be in effect until the
next Performance Pricing Determination Date, provided that no Letter of Credit
fees or component of the Euro-Dollar Rate shall be decreased pursuant to Section
2.01(h)(iii)or Section 2.01(e)(iii) if a Default is in existence on the
Performance Pricing Determination Date.
(b) The Agent shall make the determinations pursuant to
Section 2.03(a) and shall give prompt notice to Lessor, Lessee and the Lenders
by telecopier of each such determination, and its determination shall be
conclusive in the absence of manifest error.
Section 2.04. Fees. In addition to the fees payable pursuant
to Section 2.01, (i) Lessor shall pay to the Agent, for the account and sole
benefit of the Agent, such Fees and other amounts and at such times as set forth
in the Agent's Letter Agreement, and (ii) RealVest shall pay to the Preferred
Member the fees payable to it on the Closing Date pursuant to the Preferred
Member's Letter Agreement.
Section 2.05. Optional Prepayments. (a) In addition to
payments from required principal payments on Pledged Bonds, Lessor may, upon at
least 1 Domestic Business Days' notice, prepay any Base Rate Tender Advance in
whole at any time, or from time to time in part in amounts aggregating at least
$100,000 (or any lesser amount equal to the outstanding balance of the Tender
Advances), by paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such optional prepayment shall
be applied to prepay ratably the Base Rate Tender Advances of the several LC
Issuers which have Tender Advances outstanding.
(b) In addition to payments from required principal payments
on Pledged Bonds, and in any event subject to any payments required pursuant to
the terms of Article VIII for such Euro-Dollar Rate Tender Advance, upon 3
Domestic Business Day's prior written notice, Lessor may prepay in amounts
aggregating at least $1,000,000 (or any lesser amount equal to the outstanding
balance of the Tender Advances) all or any portion of the principal amount of
any Euro-Dollar Rate Tender Advance prior to the maturity thereof, by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment, together with any amounts required to be paid pursuant to
Article VIII. Each such optional prepayment shall be applied to prepay ratably
the Base Rate Tender Advances of the several LC Issuers which have Tender
Advances outstanding.
(c) Upon receipt of a notice of prepayment pursuant to this
Section 2.05, the Agent shall promptly notify each Lender of the contents
thereof and of such Lender's ratable share of such prepayment and such notice,
once received by the Agent, shall not thereafter be revocable by Lessor.
Section 2.06. General Provisions as to Payments. (a) Lessor
shall make each payment of principal of, and interest on, the Reimbursement
Obligations and of fees hereunder, not later than 11:00 A.M. (Atlanta, Georgia
time) on the date when due, in Federal or other funds immediately available in
Atlanta, Georgia, to the Agent at its address referred to in Section 9.01. The
Agent will promptly distribute to each Lender its ratable share of each such
payment received by the Agent for the account of the Lenders.
<PAGE>
(b) Whenever any payment of principal of, or interest on, the
Reimbursement Obligations (other than on a Euro-Dollar Rate Tender Advance) or
of fees hereunder shall be due on a day which is not a Domestic Business Day,
the date for payment thereof shall be extended to the next succeeding Domestic
Business Day. Whenever any payment of principal of or interest on, a Euro-Dollar
Rate Tender Advance shall be due on a day which is not a Euro-Dollar Business
Day, the date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case the date for payment thereof shall be the next
preceding Euro-Dollar Business Day.
(c) All payments of principal, interest and fees and all other
amounts to be made by Lessor pursuant to this Agreement with respect to any
Reimbursement Obligations, or fee relating thereto shall be paid without
deduction for, and free from, any tax, imposts, levies, duties, deductions, or
withholdings of any nature now or at anytime hereafter imposed by any
governmental authority or by any taxing authority thereof or therein excluding
in the case of each LC Issuer, taxes imposed on or measured by its net income,
and franchise taxes imposed on it, by the jurisdiction under the laws of which
such LC Issuer is organized or any political subdivision thereof and, in the
case of each LC Issuer, taxes imposed on its income, and franchise taxes imposed
on it, by the jurisdiction of such LC Issuer's applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, imposts, levies,
duties, deductions or withholdings of any nature being "Taxes"). In the event
that Lessor is required by applicable law to make any such withholding or
deduction of Taxes with respect to any Tender Advance or fee or other amount,
Lessor shall pay such deduction or withholding to the applicable taxing
authority, shall promptly furnish to any LC Issuer in respect of which such
deduction or withholding is made all receipts and other documents evidencing
such payment and shall pay to such LC Issuer additional amounts as may be
necessary in order that the amount received by such LC Issuer after the required
withholding or other payment shall equal the amount such LC Issuer would have
received had no such withholding or other payment been made.
Each Lender which is not organized under the laws of the
United States or any state thereof agrees to deliver to Agent, Lessor and
Lessee, on the Closing Date (or on any later date on which such Lender first
becomes a Lender hereunder) all appropriate forms, certificate or other
appropriate documents necessary to establish that it is entitled to receive
payments of principal and interest under this Agreement and the Reimbursement
Notes without deduction and free from withholding of any Taxes.
In the event any Lender receives a refund of any Taxes paid by
or on behalf of Lessor pursuant to this Section 2.06(c), it will pay to Lessor
(or pursuant to its direction) the amount of such refund promptly upon receipt
thereof; provided that if at any time thereafter it is required to return such
refund, Lessor shall promptly repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of
Lessor hereunder, the agreements and obligations of Lessor and the LC Issuers
contained in this Section 2.06(c) shall be applicable with respect to any
Participant, Assignee or other Transferee, and any calculations required by such
provisions (i) shall be made based upon the circumstances of such Participant,
Assignee or other Transferee, and (ii) constitute a continuing agreement and
shall survive the termination of this Agreement and the payment in full or
cancellation of the Reimbursement Notes.
<PAGE>
Section 2.07. Computation of Interest and Impositions.
Interest on Base Rate Tender Advances and other Reimbursement Obligations (other
than Euro-Dollar Rate Tender Advances) shall be computed on the basis of a year
of 360 days and paid for the actual number of days elapsed (including the first
day but excluding the last day). Interest on Euro-Dollar Rate Tender Advances
shall be computed on the basis of a year of 360 days and paid for the actual
number of days elapsed, calculated as to each Interest Period from and including
the first day thereof to but excluding the last day thereof. Commitment fees,
Letter of Credit Fees and any other fees and Impositions payable under this
Article II shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
ARTICLE III
CONDITIONS TO BORROWINGS AND ISSUANCE OF THE LETTERS OF CREDIT
Section 3.01. Conditions to Issuance of the Letters of Credit.
The obligation of each LC Issuer to issue its Letter of Credit is subject to the
satisfaction of the conditions set forth in Sections 3.02 (if applicable) and
receipt by the Agent of the following (as to the documents described in
paragraphs (a),(c), (d) and (e) below, in sufficient number of counterparts for
delivery of a counterpart to each Lender and retention of one counterpart by the
Agent):
(a) from each of the parties hereto of either (i) a duly
executed counterpart of this Agreement signed by such party or (ii) a
facsimile transmission of such executed counterpart, with the original
to be sent to the Agent by overnight courier);
(b) a duly executed Reimbursement Note for the account of each
LC Issuer complying with the provisions of Section 3.01(e)(iii);
(c) opinion letters (together with any opinions of local
counsel relied on therein) of Wolff & Samson, counsel for Lessor, dated
as of the Closing Date, (i) substantially in the form of Exhibit A-1
relating to corporate matters and enforceability and covering such
additional matters relating to the transactions contemplated hereby as
the Agent or any Lender may reasonably request, and (ii) substantially
in the form of Exhibit A-2 to the effect that, in the event either of
the Common Members, or their respective successors becomes insolvent,
neither Lessor nor its assets and liabilities would be substantively
consolidated with such insolvent Common Member or successor;
(d) an opinion of Jones, Day, Reavis & Pogue, special counsel
for the Agent, dated as of the Closing Date, substantially in the form
of Exhibit B and covering such additional matters relating to the
transactions contemplated hereby as the Agent may reasonably request;
(e) a certificate (the "Closing Certificate") substantially in
the form of Exhibit E), dated as of the Closing Date, signed by a
principal financial officer of Lessor to the effect that (i) no Default
has occurred and is continuing on the date of issuance of the Letters
of Credit, and (ii) the representations and warranties of Lessor
contained in Article IV are true on and as of the date of issuance of
the Letters of Credit hereunder;
<PAGE>
(f) all documents which the Agent or any Lender may reasonably
request relating to the existence of Lessor, the corporate authority
for and the validity of this Agreement and the Reimbursement Notes, and
any other matters relevant hereto, all in form and substance
satisfactory to the Agent, including, without limitation, a certificate
of Lessor substantially in the form of Exhibit F (the "Officer's
Certificate"), signed by the Secretary or an Assistant Secretary of
Lessor, certifying as to the names, true signatures and incumbency of
the officer or officers of Lessor authorized to execute and deliver the
Operative Documents, and certified copies of the following items,
respectively: (i) Lessor's Certificate of Formation, (ii) the Operating
Agreement, (iii) a certificate of the Secretary of State of the State
of New Jersey as to its good standing, and (iv) the action taken by the
managers of Lessor authorizing Lessor's execution, delivery and
performance of this Agreement, the Reimbursement Notes and the other
Operative Documents to which Lessor is a party;
(g) receipt in immediately available funds all fees payable on
the Closing Date pursuant to Sections 2.01 and 2.04;
(h) all agreements, instruments, and documents evidencing,
securing or relating to the Bonds, the Indenture, the Lease, the
Preferred Membership Interests, the Common Membership Interests, and
the terms and conditions of the Operating Agreement will be in form and
substance satisfactory to the Agent and the Lenders;
(i) from Lessor a fully executed counterpart of the Lease,
which Lease shall be satisfactory to the Agent and the Lenders in all
respects, attached as Exhibit G; and
(j) receipt by the Agent of each of the other Operative
Documents, duly executed by the parties thereto.
Section 3.02. Conditions to Certain Events. Lessor agrees that
each of the following conditions shall be satisfied at the relevant times
required for satisfaction thereof pursuant to the following provisions:
(a) for the first Project Cost Disbursement for any Individual
Property, the execution and delivery of a Supplemental Lease for the
Individual Property relating thereto, a Mortgage and Assignment of
Rents relating to such Project, and other documents to be satisfactory
in all respects to the Agent (including any ground lease), and with the
liens, security titles and security interests in favor of the Agent
(for the benefit of itself and the Lenders) to be a first and only lien
or security title and security interest in and to each Individual
Property, subject to no encumbrances or exceptions other than Permitted
Exceptions;
(b) On or before the earlier to occur of (i) the date of the
acquisition of the land for any Individual Property (the "Land
Acquisition Date"), or (ii) the date of a Project Cost Disbursement for
the purchase price therefor, the Agent (for the benefit of the Lenders)
shall be provided with a mortgage title insurance policy (or binding
commitment therefor), insuring the lien or security title of the Agent
(for the benefit of itself, the LC Issuer and the Lenders) as a first
and only lien or security title to each Individual Property, subject to
no encumbrances or exceptions other than any which are approved by the
Agent in its sole discretion.
<PAGE>
(c) Lessee shall have provided Lessor, the Agent and the
Lenders with the following, for each Individual Property: (A)(a) On or
before the Land Acquisition Date, a current ALTA-ACSM boundary survey
of the Individual Property site (showing any existing improvements from
a registered surveyor), and (b) on the Applicable Completion Date, an
as-built survey by the original surveyor as of the Applicable
Completion Date; and (B) on or prior to the date of commencement of
construction on the Individual Property (the "Construction Commencement
Date"), a complete set of architectural and engineering plans and
design specifications for the construction, installation and completion
of the Individual Property; (C) On or prior to the Construction
Commencement Date, an appraisal from an independent MAI appraiser,
engaged by the Agent at the expense of Lessee, setting forth the
estimated fair market value of the Individual Property on the
Applicable Completion Date (on an "as completed" basis in accordance
with the Proposed Plan), which shall be at least 90% of the anticipated
total Project Cost for such Individual Property, which appraisal will
satisfy all applicable FIRREA and other bank regulatory requirements;
all of the foregoing to be reasonably satisfactory to each of the
Agent, in its sole discretion.
(d) Lessor, the Agent and the Lenders will be provided for
each Individual Property, on or before the Land Acquisition Date, a
current Phase I environmental report satisfying the minimum standards
set forth in ASTME 1527-94 (and, if recommended in or indicated by the
Phase I environmental report, a Phase II, environmental soil test or
other environmental report or reports).
(e) on or before the Land Acquisition Date for each Individual
Property, all filings or recordings of Operative Documents considered
necessary or desirable by the Agent with respect to such Individual
Property shall be completed and all taxes and fees in connection
therewith paid by Lessee or Lessor;
(j) Lessor, the Agent and the Lenders will be provided for
each Individual Property, on or before the Land Acquisition Date for
each Individual Property, favorable opinions of counsel to Lessor and
(if required by the Lease) Lessee covering such matters incident to the
transactions as the Agent may require, together with such certified
resolutions and incumbency certificates, and such other certificates
and documents as the Agent or the Lenders may reasonably request; and
(k) As of the date of each Project Cost Disbursement, and
after giving effect thereto, the aggregate amount of Project Cost
Investments shall be not less than 3% of all Project Costs incurred for
any portion of which Project Cost Disbursements have been requested as
of such date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Lessor hereby represents and warrants that:
Section 4.01. Existence and Power. Lessor is a limited
liability company duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization and existence, and Lessor is
duly qualified to transact business in every jurisdiction where, by the nature
of its business, such qualification is necessary, and has all limited liability
powers and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
<PAGE>
Section 4.02. Limited Liability Company and Governmental
Authorization; No Contravention. The execution, delivery and performance by
Lessor of this Agreement, the Reimbursement Notes and the other Operative
Documents (i) are within its limited liability company powers, (ii) have been
duly authorized by all respective necessary limited liability company action,
(iii) require no action by or in respect of or filing with, any governmental
body, agency or official, (iv) do not contravene, or constitute a default under,
any provision of applicable law or regulation or of its Certificate of Formation
or the Operating Agreement or of any agreement, judgment, injunction, order,
decree or other instrument binding upon it, and (v) do not result in the
creation or imposition of any Lien on any of its assets, except in favor the
Agent.
Section 4.03. Binding Effect. This Agreement constitutes a
valid and binding agreement of Lessor, enforceable in accordance with its terms,
and the Reimbursement Notes and the other Operative Documents, when executed and
delivered in accordance with this Agreement, will constitute valid and binding
obligations of Lessor, enforceable in accordance with their respective terms,
provided that the enforceability hereof and thereof is subject in each case to
general principles of equity and to bankruptcy, insolvency and similar laws
affecting the enforcement of creditors' rights generally.
Section 4.04. Financial Information. (a) The consolidated
balance sheet of Parent as of December 31, 1996 and the related consolidated
statements of income and cash, shareholders' equity and cash flows for such
Fiscal Year, setting forth (in comparative form as to the statements of income
and cash flows) the figures for the previous fiscal year, the Form 10Q of the
Parent and the separate consolidating statements for the Lessor as of June 30,
1997, copies of which have been delivered to the Agent and each of the Lenders,
fairly present in all material respects, in accordance with GAAP, the respective
consolidated financial position of Parent and Lessor, as applicable, as of such
dates and their consolidated results of operations and (if included) cash flows
for such periods stated.
(b) Since June 30, 1997, there has been no event, act,
condition or occurrence having a Material Adverse Effect.
Section 4.05. No LItigation. (a) There is no action, suit or
proceeding pending, or to the knowledge of Lessor threatened, against Lessor
before any court or arbitrator or any governmental body, agency or official
which could have a Material Adverse Effect or which in any manner draws into
question the validity of or could impair the ability of Lessor to perform its
obligations under, this Agreement, the Reimbursement Notes or any of the other
Operative Documents.
Ssection 4.06. Compliance with ERISA. (a) Lessor and each
member of such Lessor's Controlled Group (if any), has fulfilled its obligations
under the minimum funding standards of ERISA and the Code with respect to each
Plan and is in compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and has not incurred any liability to the PBGC
or a Plan under Title IV of ERISA.
(b) Neither Lessor nor any member of Lessor's Controlled Group
(if any) is or ever has been obligated to contribute to any Multiemployer Plan.
Section 4.07. Compliance wiht Laws; Payment of Taxes. Lessor
is in compliance with all applicable laws, regulations and similar requirements
of governmental authorities, except where such compliance is being contested in
good faith through appropriate proceedings, and except where non-compliance has
not had and would not be reasonably expected to cause a Material Adverse Effect.
<PAGE>
There has been filed on behalf of Lessor all Federal, state and local income,
excise, property and other tax returns which are required to be filed by it and
all taxes due pursuant to such returns or pursuant to any assessment received by
or on behalf of Lessor have been paid, except where non-compliance has not had
and would reasonably be expected to cause a Material Adverse Effect. The
charges, accruals and reserves on the books of Lessor in respect of taxes or
other governmental charges are, respectively, in the opinion of Lessor,
adequate.
Section 4.08. Subsidiaries. Lessor has no Subsidiaries.
Section 4.09. Investment Company Act. Lessor is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
Section 4.10. Public Utility Holding Company Act. Lessor is
not a "holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act of
1935, as amended.
Section 4.11. Ownership of Property. Lessor has title to its
properties sufficient for the conduct of its business.
Section 4.12. No Default. Lessor is not in default under or
with respect to any agreement, instrument or undertaking to which it is a party
or by which it or any of its property is bound which could have or cause a
Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
Section 4.13. Full Disclosure. All information heretofore
furnished by Lessor to the Agent or any Lender for purposes of or in connection
with this Agreement or any transaction contemplated hereby is, and all such
information hereafter furnished by Lessor to the Agent or any Lender will be,
true, accurate and complete in every material respect or based on reasonable
estimates on the date as of which such information is stated or certified.
Lessor has disclosed to the Lenders in writing any and all facts which could
have or cause a Material Adverse Effect.
Secton 4.14. Environmental Matters. (a) Lessor is not subject
to any Environmental Liability which could have or cause a Material Adverse
Effect and Lessor has not been designated as a potentially responsible party
under CERCLA or under any state statute similar to CERCLA. None of the
Properties has been identified on any current or proposed (i) National
Priorities List under 40 C.F.R. ss. 300, (ii) CERCLIS list or (iii) any list
arising from a state statute similar to CERCLA.
(b) No Hazardous Materials have been or are being used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed or otherwise handled at, or shipped or transported to or
from the Properties or are otherwise present at, on, in or under the Properties,
or, to the best of the knowledge of Lessor, at or from any adjacent site or
facility, except for Hazardous Materials, such as cleaning solvents, pesticides
and other materials used, produced, manufactured, processed, treated, recycled,
generated, stored, disposed of, managed, or otherwise handled in minimal amounts
in the ordinary course of business in compliance with all applicable
Environmental Requirements.
(c) Lessor has procured all Environmental Authorizations
necessary for the conduct of its business, and is in compliance with all
Environmental Requirements in connection with the operation of the Properties
and Lessor's business.
<PAGE>
Section 4.15. Membership Interests. The Common Membership
Interests, Preferred Membership Interests and all debentures, bonds, notes and
all other securities of Lessor presently issued and outstanding are validly and
properly issued in accordance with all applicable laws, including, but not
limited to, the "Blue Sky" laws of all applicable states and the federal
securities laws. Based solely upon the representations of the Common Members and
the Preferred Members contained in the Operating Agreement, the issued Common
Membership Interests and Preferred Membership Interests are owned by the Common
Members and the Preferred Member, respectively, free and clear of any Lien or
adverse claim.
Section 4.16. Margin Stock. No Letter of Credit will be used
+to purchase or carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock, or be used for any purpose
which violates, or which is inconsistent with, the provisions of Regulation G,T,
U or X.
Section 4.17. Insolvency. After giving effect to the execution
and delivery of the Operative Documents and the issuance of the Letters of
Credit: (i) Lessor will not (x) be "insolvent," within the meaning of such term
as used in O.C.G.A. ss. 18-2-22 or as defined in ss. 101 of the "Bankruptcy
Code", or Section 2 of either the "UFTA" or the "UFCA", or as defined or used in
any "Other Applicable Law" (as those terms are defined below), or (y) be unable
to pay its debts generally as such debts become due within the meaning of
Section 548 of the Bankruptcy Code, Section 4 of the UFTA or Section 6 of the
UFCA, or (z) have an unreasonably small capital to engage in any business or
transaction, whether current or contemplated, within the meaning of Section 548
of the Bankruptcy Code, Section 4 of the UFTA or Section 5 of the UFCA; and (ii)
the obligations of Lessor under the Operative Documents and with respect to the
Letters of Credit will not be rendered avoidable under any Other Applicable Law.
For purposes of this Section 4.17, "Bankruptcy Code" means Title 11 of the
United States Code, "UFTA" means the Uniform Fraudulent Transfer Act, "UFCA"
means the Uniform Fraudulent Conveyance Act, and "Other Applicable Law" means
any other applicable law pertaining to fraudulent transfers or acts voidable by
creditors, in each case as such law may be amended from time to time.
Section 4.18. Insurance. Lessor has (or Lessor has caused
Lessee to obtain), with financially sound and reputable insurance companies,
insurance in at least such amounts and against at least such risks (including on
all its property, and public liability and worker's compensation) as are usually
insured against in the same general area by companies of established repute
engaged in the same or similar business.
ARTICLE V
COVENANTS
Lessor agrees that, so long as any amount payable to any Agent
or any Lender hereunder or under any Reimbursement Note remains unpaid or the
Letters of Credit remains in effect:
Section 5.01. Information. Lessor will deliver (and, with
respect to clauses (a), (b), and (d) through and including (h), will cause
Lessee to deliver such items pursuant to the Lease), to each of the Lenders:
<PAGE>
(a) as soon as available to the public and in any event within
95 days after the end of each Fiscal Year, (x) for Lessor, the
consolidated balance sheet of Parent as of the end of such Fiscal Year
and the related consolidated statements of income, shareholders' equity
and cash flows for such Fiscal Year, setting forth (in comparative form
as to the statements of income) the figures for the previous fiscal
year, all reported on by Richard A. Eisner Company, LLP or other
independent public accountants of nationally recognized standing,
together with separate consolidating statements for the Lessor,
certified as to fairness of presentation, GAAP and consistency by the
chief financial officer or the chief accounting officer of Parent, and
(y) for the Lessee, its consolidated balance sheet as of the end of
such Fiscal Year and the related consolidated statements of income,
shareholders' equity and (if included) cash flows for such Fiscal Year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by Ernst & Young LLP (as to
Lessee) or other independent public accountants of nationally
recognized standing, with such report to be free of exceptions and
qualifications not acceptable to the Required Lenders;
(b) as soon as available to the public and in any event within
50 days after the end of each of the first 3 Fiscal Quarters of each
Fiscal Year, its respective consolidated balance sheet as of the end of
such Fiscal Quarter and the related statement of income for such Fiscal
Quarter and for the portion of the Fiscal Year ended at the end of such
Fiscal Quarter, setting forth (in comparative form as to the statements
of income of the Lessor and in each case in comparative form as to the
Lessee) the figures for the corresponding Fiscal Quarter and the
corresponding portion of the previous Fiscal Year, all certified
(subject to normal year-end adjustments) as to fairness of
presentation, GAAP and consistency by its respective chief financial
officer or the chief accounting officer (except for normal year end
adjustments and notes to financial statements, which will be omitted);
(c) upon receipt thereof, any notice, report or other delivery
required to be delivered by Lessee pursuant to the terms of the Lease;
(d) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) above, (i) the
Compliance Certificate of Lessee delivered pursuant to Section
2.1(s)(iii) of the Lease setting forth in reasonable detail the
calculations required to establish whether Lessee was in compliance
with the financial covenants contained in Section 2.1(u) through (x),
inclusive, of the Lease on the date of such financial statements, and
stating whether any Default exists under the Lease on the date of such
certificate and, if any Default then exists under the Lease, setting
forth the details thereof and the action which Lessee is taking or
proposes to take with respect thereto and (ii) a certificate of Lessor
stating whether any Default exists hereunder on the date of such
certificate and, if any Default then exists hereunder, setting forth
the details thereof and the action which Lessor is taking or proposes
to take with respect thereto;
<PAGE>
(e) within 5 Domestic Business Days after Lessor becomes aware
of the occurrence of any Default, a certificate of its respective chief
financial officer or the chief accounting officer setting forth the
details thereof and the action which it is taking or proposes to take
with respect thereto, or any similar such certificate of Lessee
furnished pursuant to the Lease;
(f) promptly upon the mailing thereof to their respective
members or shareholders generally, copies of all financial statements,
reports and proxy statements so mailed;
(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and annual,
quarterly or monthly reports which Lessor, Parent or Lessee shall have
filed with the Securities and Exchange Commission;
(h) if and when any member of any Controlled Group (i) gives
or is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA, a copy of such notice; or (iii) receives
notice from the PBGC under Title IV of ERISA of an intent to terminate
or appoint a trustee to administer any Plan, a copy of such notice;
(i) upon receipt thereof, any notice, report or other delivery
required to be delivered by Lessor pursuant to the terms of the
Indenture; and
(j) from time to time such additional information regarding
the financial position or business of Lessor as the Agent, at the
request of any Lender, may reasonably request.
Section 5.02. Inspection of Property, Books and Records.
Lessor will, and will cause (pursuant to the Lease) Lessee to (i) keep proper
books of record and account in which full, true and correct entries in
conformity with GAAP shall be made of all dealings and transactions in relation
to its respective business and activities; and (ii) permit representatives of
any Lender at such Lender's expense prior to the occurrence of a Default and at
the Lessor's expense after the occurrence of a Default to visit and inspect any
of its properties, to examine and make abstracts from any of its books and
records and to discuss its affairs, finances and accounts with its officers,
employees and independent public accountants. Lessor agrees to, and will cause
(pursuant to the Lease) Lessee to, cooperate and assist in such respective
visits and inspections, in each case at such reasonable times and as often as
may reasonably be desired.
Section 5.03. Maintenance of Existence. Lessor shall maintain
its existence and carry on its business in substantially the same manner and in
substantially the same fields as such business is now carried on and maintained.
<PAGE>
Section 5.04. Dissolution. Lessor shall not suffer or permit
its dissolution or liquidation either in whole or in part or redeem or retire
any of its own membership interests except through corporate reorganization to
the extent permitted by Section 5.08.
Section 5.05. Certain Amendments Requiring Consent. Without
the prior written consent of the Agent and the Required Lenders, Lessor shall
not: (i) amend, modify or terminate the Indenture, the Agency and Development
Agreement, the Lease or the Payment Direction Agreement; or (ii) take any action
under the Agency and Development Agreement or the Lease; provided, however, that
Lessor shall not amend or modify the definitions of Basic Rent and Supplemental
Rent or the provisions of Sections 3.3, 3.5 (except as expressly contemplated in
the Lease with respect to any prepayment of Rent or purchase of any of the
Leased Properties) or 3.8 of the Lease without the prior written consent of the
Agent and all of the Lenders.
Section 5.06. Use of Proceeds. The proceeds of the Project
Cost Disbursements for Individual Properties shall be used by Lessor solely for
the acquisition, assembly and construction of the Individual Properties by
Lessor and Lessee, as development agent for Lessor. In no event shall the
proceeds of the Project Cost Disbursements be used in any manner which would
constitute the use of such proceeds directly or indirectly, whether immediate,
incidental or ultimate, of purchasing or carrying any Margin Stock, or for any
purpose in violation of any applicable law or regulation.
Section 5.07. Compliance with Laws; Payment of Taxes. Lessor
will, and will cause each member of its Controlled Group to, comply with
applicable laws (including but not limited to ERISA), regulations and similar
requirements of governmental authorities (including but not limited to PBGC),
except where the necessity of such compliance is being contested in good faith
through appropriate proceedings diligently pursued and except where
non-compliance has not had and would reasonably be expected to cause a Material
Adverse Effect. Lessor will pay promptly when due all taxes, assessments,
governmental charges, claims for labor, supplies, rent and other obligations
which, if unpaid, might become a lien against its property, except liabilities
being contested in good faith and against which, if requested by the Agent,
Lessor will set up reserves in accordance with GAAP and except where
non-compliance has not had and would reasonably be expected to cause a Material
Adverse Effect and would not cause a lien against any of the Collateral.
Section 5.08. Consolidations, Mergers and Sales of Assets.
Lessor will not consolidate or merge with or into, or sell, lease or otherwise
transfer all or any substantial part of its assets to, any other Person, or
discontinue or eliminate any business line or segment.
Section 5.09. Maintenance of Property. Lessor shall maintain
all of its properties and assets in good condition, repair and working order,
ordinary wear and tear excepted, and in accordance with the provisions of the
Lease.
Section 5.10. Restricted Payments. Lessor will not declare or
make any Restricted Payment during any Fiscal Year, except that Distributions
may be made from amounts in the Additional Rent Collateral Reserve Account
pursuant to Section 2.02, so long as no Event of Default exists.
<PAGE>
Section 5.11. Loans or Advances. Lessor shall not make loans
or advances to any Person, except deposits required by government agencies or
public utilities or required in order to comply with any applicable provisions
of any of the "Transaction Documents" (as defined in the Lease).
Section 5.12. Investments. Lessor shall not make Investments
in any Person except as permitted by Section 5.11 and except Investments in (i)
direct obligations of the United States Government maturing within one year,
(ii) certificates of deposit issued by a commercial bank whose credit is
satisfactory to the Agent, (iii) commercial paper rated A-1 or the equivalent
thereof by S&P or P-1 or the equivalent thereof by Moody's and in either case
maturing within 6 months after the date of acquisition, (iv) tender bonds the
payment of the principal of and interest on which is fully supported by a letter
of credit issued by a United States bank whose long-term certificates of deposit
are rated at least AA or the equivalent thereof by S&P and Aa or the equivalent
thereof by Moody's; and/or (v) Investments permitted by the terms of Section
5.05 of the Indenture; provided, however, immediately after giving effect to the
making of any Investment, no Default shall have occurred and be continuing.
Section 5.13. Additional Debt. Lessor shall not incur any
Debt, other than pursuant to this Agreement.
Section 5.14. No Other Businesses. Lessor shall engage in no
other business or activities, other than the ownership and leasing of the
Individual Properties, as contemplated herein and in the Operative Documents.
Section 5.15. Retention and Disposition of Certain Proceeds.
In the event the Agent receives any excess "Net Proceeds" (as defined in the
Lease) pursuant to Section 19.1(b), surplus proceeds pursuant to Section 19.2(b)
of the Lease, or any excess condemnation award pursuant to Section 19.3(c) of
the Lease, such amounts shall be held by the Agent as a collateral reserve (the
"Net Proceeds Collateral Reserve Account") to secure payment of the Obligations;
provided, that if all Letters of Credit have been terminated and all Obligations
have been paid in full, then the Agent shall disburse any remaining amount in
the Net Proceeds Collateral Reserve Account in accordance with the applicable
provisions of such Sections of the Lease.
ARTICLE VI
DEFAULTS
Secton 6.01 Events of Default. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) Lessor shall fail to pay when due any Letter of Credit
Obligations or principal amount of any Reimbursement Note, or shall
fail to pay any interest on any Reimbursement Note within 5 Domestic
Business Days after such interest shall become due, or shall fail to
pay any fee or any other Obligations within 5 Domestic Business Days
after such fee or other amount becomes due; or
(b) Lessor shall fail to observe or perform any covenant or
agreement contained in:
(1) any of Sections 5.03, 5.04, 5.05, 5.08, or 5.10,
5.11, 5.12 (other than arising out of temporary Investments of
cash in cash equivalents which are not otherwise permitted by
Section 5.12, which shall be subject to clause (2) of this
Section 6.01(b)), 5.13 or 5.14 of this Agreement; or
<PAGE>
(2) any other provision of this Agreement for 30 days
after the earlier of (i) the first day on which Lessor has
knowledge of such failure or (ii) written notice thereof has
been given to Lessor by the Agent at the request of any
Lender; or
(c) an "Event of Default" shall have occurred under the
Indenture; or
(d) any representation, warranty, certification or statement
made by Lessor in Article IV of this Agreement or in any certificate,
financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect or misleading in any
material respect when made (or deemed made); or
(e) Lessor shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief
or to the appointment of or taking possession by any such official in
an involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors, or shall fail
generally, or shall admit in writing its inability, to pay its debts as
they become due, or shall take any corporate action to authorize any of
the foregoing; or
(f) an involuntary case or other proceeding shall be commenced
against Lessor seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of
it or any substantial part of its property, and such involuntary case
or other proceeding shall remain undismissed and unstayed for a period
of 60 days; or an order for relief shall be entered against Lessor
under the federal bankruptcy laws as now or hereafter in effect; or
(g) Lessor or any member of its Controlled Groups shall fail
to pay when due any material amount which it shall have become liable
to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of
intent to terminate a Plan or Plans shall be filed under Title IV of
ERISA by Lessor or any member of their respective Controlled Groups,
any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate or to
cause a trustee to be appointed to administer any such Plan or Plans or
a proceeding shall be instituted by a fiduciary of any such Plan or
Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding
shall not have been dismissed within 30 days thereafter; or a condition
shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any such Plan or Plans must be terminated; or
(h) one or more judgments or orders for the payment of money
in an aggregate amount in excess of $500,000 shall be rendered against
Lessor and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
<PAGE>
(i) a federal tax lien shall be filed against Lessor under
Section 6323 of the Code or a lien of the PBGC shall be filed against
Lessor under Section 4068 of ERISA and in either case such lien shall
remain undischarged for a period of 25 days after the date of filing;
or
(j) the occurrence of any event, act, occurrence, or condition
which the Required Lenders determine either does or has a reasonable
likelihood of causing a Material Adverse Effect;
(k) an "Event of Default" under the Lease shall have occurred
or be in existence;
(l) an "Event of Default" shall have occurred under the Agency
and Development Agreement; or.
(m) an "Event of Default" shall occur under the Mortgage or
the Assignment of Rents, or Lessee or Lessor, as applicable, shall fail
to observe or perform any covenant or agreement contained the Lessee
Undertaking or the Fund Account Security Agreement, and such failure is
not cured within any applicable grace or cure period contained therein.
then, and in every such event:
(i) the Agent shall, if requested by the Required
Lenders, by notice to Lessor, declare the Reimbursement Notes
(together with accrued interest thereon), and all other
amounts payable hereunder and under the other Operative
Documents, to be, and the Reimbursement Notes (together with
accrued interest thereon), and all other amounts payable
hereunder and under the other Operative Documents shall
thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all
of which are hereby waived by Lessor, together with interest
at the Default Rate accruing on the principal amount thereof
from and after the date of such Event of Default, and apply
any amounts in the Additional Rent Collateral Reserve Account
in accordance with Section 6.02; provided that if any Event of
Default specified in paragraph (e) or (f) above occurs,
without any notice by the Agent or the Required Lenders to
Lessor or any other act by the Agent or the Required Lenders,
the Reimbursement Notes (together with accrued interest
thereon) and all other amounts payable hereunder and under the
other Operative Documents shall automatically and without
notice become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are
hereby waived by Lessor together with interest thereon at the
Default Rate accruing on the principal amount thereof from and
after the date of such Event of Default;
<PAGE>
(ii) subject to the final sentence of this Section
6.01, the Agent shall, if requested by the Required Lenders,
by notice to the Trustee, direct the Trustee to call the Bonds
for mandatory purchase or declare the principal of the Bonds
to be immediately due and payable pursuant to Section
5.08(a)(v) and 7.01(f) of the Indenture; and
(iii) if the Reimbursement Obligations have not been
paid as required by Section 2.01(e)(i) with respect to any
Letter of Credit, the Agent shall, if requested by the
Required Lenders, give notice to the Trustee, on behalf of all
of the LC Issuers, that the Letters of Credit will not be
reinstated following a Series A Bonds Scheduled Payment
Drawing, a Series B Bonds Scheduled Payment Drawing or a
Tender Drawing. In addition, subject to the final sentence of
this Section 6.01, upon the occurrence of an Event of Default,
to the extent of any existing Letter of Credit Obligations,
upon the demand of the Agent (acting at the direction of the
Required Lenders) by notice to Lessor, Lessor shall
immediately deposit the principal amount thereof with the
Agent and the Agent shall set aside the amounts so deposited
as a collateral reserve account (the "Reimbursement
Obligations Collateral Reserve Account") for payment of the
Reimbursement Obligations relating to Letters of Credit which
are subsequently funded; provided that if any Event of Default
specified in paragraph (e) or (f) above occurs, subject to the
final sentence of this Section 6.01, Lessor shall immediately
be obligated to make such deposit without any notice by the
Agent or the Required Lenders to Lessor or any other act by
the Agent or the Required Lenders. After all Letters of Credit
have been cancelled and all Reimbursement Obligations have
been satisfied, and each LC Issuer has been reimbursed all
amounts funded by it with respect thereto, any balance
remaining in the Reimbursement Obligations Collateral Reserve
Account may be applied to other Obligations, and, if none,
shall be remitted to Lessor;
Notwithstanding the foregoing, the Agent shall have available to it all remedies
under this Agreement, under the other Operative Documents, and all other
remedies at law or equity, and shall exercise any one or all of them at the
request of the Required Lenders; provided, however, that so long as all
obligations of the Lessee are being paid as and when they come due pursuant to
the Lease and the Payment Direction Agreement and no Lease Default has occurred,
(1) the Agent shall not exercise the rights described in clauses (ii) and (iii)
above, (2) the Lessee shall have no obligation under the Lease to pay Rent on an
accelerated basis to enable Lessor to make the deposit in the Reimbursement
Obligations Collateral Reserve Account or to pay the Reimbursement Notes or
Reimbursement Obligations, and (3) the Agent shall not terminate the Lease or
disturb the rights of Lessee thereunder.
Section 6.02. Applicaton of Proceeds of Collateral. Any
proceeds of sale or other disposition of the Collateral will be applied by the
Agent as follows, and thereafter, in accordance with the Agent's sole
discretion:
<PAGE>
(i) Any proceeds obtained by the Agent or the Lenders from a
foreclosure or other exercise of rights and remedies with respect to
the Assignment of the Rents, the Fund Account Security Agreement and/or
the Lessee Undertaking, any amount in the Additional Rent Collateral
Reserve Account maintained by the Agent pursuant to Section 2.02 or the
Net Proceeds Collateral Reserve Account maintained by the Agent
pursuant to Section 5.15, shall (after payment of the Obligations
consisting of any unpaid Impositions and any costs and other expenses
relating to the enforcement of such Operative Documents) be applied (i)
first, pro rata to interest on the Reimbursement Obligations, (ii)
secondly, pro rata to the Reimbursement Obligations (Series A Bonds)
and (iii) lastly, pro rata to the Reimbursement Obligations (Series B
Bonds).
(ii) Any proceeds obtained by the Agent or the Lenders from a
foreclosure or other exercise of rights and remedies with respect to
the Mortgages shall (after payment of the Obligations consisting of any
unpaid Impositions and any costs and other expenses relating to the
enforcement of such Operative Documents) be applied (i) first, pro rata
to interest on the Reimbursement Obligations, (ii) secondly, pro rata
to the Reimbursement Obligations (Series B Bonds), and (iii) lastly,
pro rata to the Reimbursement Obligations (Series A Bonds).
In the event that the sale or other disposition of the Collateral fails to fully
satisfy any of the Obligations, Lessor shall remain liable to the Agent and the
Lenders for any deficiency in the Obligations.
ARTICLE VII
THE AGENT
Section 7.01. Appointment; Powers and Immunities. Each Lender
hereby irrevocably appoints and authorizes the Agent to act as its agent
hereunder and under the other Operative Documents with such powers as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such other powers as are reasonably incidental thereto. The Agent: (a)
shall have no duties or responsibilities except as expressly set forth in this
Agreement and the other Operative Documents, and shall not by reason of this
Agreement or any other Loan Document be a trustee for any Lender; (b) shall not
be responsible to the Lenders for any recitals, statements, representations or
warranties contained in this Agreement or any other Loan Document, or in any
certificate or other document referred to or provided for in, or received by any
Lender under, this Agreement or any other Loan Document, or for the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document referred to or provided for herein
or therein or for any failure by Lessor to perform any of its obligations
hereunder or thereunder; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder or under any other Loan Document
except to the extent requested by the Required Lenders, and then only on terms
and conditions satisfactory to the Agent, and (d) shall not be responsible for
any action taken or omitted to be taken by it hereunder or under any other Loan
Document or any other document or instrument referred to or provided for herein
or therein or in connection herewith or therewith, except for its own gross
negligence or wilful misconduct. The Agent may employ agents and
<PAGE>
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care. The
provisions of this Article VII are solely for the benefit of the Agent and the
Lenders, and Lessor shall not have any rights as a third party beneficiary of
any of the provisions hereof. In performing its functions and duties under this
Agreement and under the other Operative Documents, the Agent shall act solely as
agent of the Lenders and does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for Lessor.
The duties of the Agent shall be ministerial and administrative in nature, and
the Agent shall not have by reason of this Agreement or any other Loan Document
a fiduciary relationship in respect of any Lender.
Section 7.02. Reliance by Agent. The Agent shall be entitled
to rely upon any certification, notice or other communication (including any
thereof by telephone, telecopier, telegram or cable) believed by it to be
genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants or other experts selected by the Agent. As to any
matters not expressly provided for by this Agreement or any other Loan Document,
the Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder and thereunder in accordance with instructions signed by the
Required Lenders, and such instructions of the Required Lenders in any action
taken or failure to act pursuant thereto shall be binding on all of the Lenders.
Section 7.03. Defaults. The Agent shall not be deemed to have
knowledge of the occurrence of a Default or an Event of Default (other than the
nonpayment of principal of or interest on the Reimbursement Obligations) unless
the Agent has received notice from a Lender or Lessor specifying such Default or
Event of Default and stating that such notice is a "Notice of Default". In the
event that the Agent receives such a notice of the occurrence of a Default or an
Event of Default, the Agent shall give prompt notice thereof to the Lenders. The
Agent shall give each Lender prompt notice of each nonpayment of principal of or
interest on the Reimbursement Obligations whether or not it has received any
notice of the occurrence of such nonpayment. The Agent shall (subject to Section
9.06) take such action hereunder with respect to such Default or Event of
Default as shall be directed by the Required Lenders, provided that, unless and
until the Agent shall have received such directions, the Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
Section 7.04. Rights of Agent and its Affiliates as a Lender.
With respect to the Wachovia Letter of Credit, Wachovia in its capacity as a
Lender hereunder and any Affiliate of the Agent or such Affiliate in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though Wachovia were not acting
as the Agent, and the term "Lender" or "Lenders" shall, unless the context
otherwise indicates, include Wachovia in its individual capacity and any
Affiliate of the Agent in its individual capacity. The Agent and any Affiliate
of the Agent may (without having to account therefor to any Lender) accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with Lessor (and any of such Lessor's Affiliates), and hold
the Preferred Membership Interests and act as Preferred Member, as if Wachovia
were not acting as the Agent, and the Agent and any Affiliate of the Agent may
accept fees and other consideration from Lessor (in addition to any agency fees
and arrangement fees heretofore agreed to between Lessor and the Agent) for
services in connection with this Agreement or any other Loan Document or
otherwise without having to account for the same to the Lenders.
<PAGE>
Section 7.05. Indemnification. Each Lender severally agrees to
indemnify the Agent, to the extent the Agent shall not have been reimbursed by
Lessor, ratably in accordance with its Commitment, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, counsel fees and disbursements) or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of this Agreement or any other Loan Document or any other documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby (excluding, unless an Event of Default has occurred and is continuing,
the normal administrative costs and expenses incident to the performance of its
agency duties hereunder) or the enforcement of any of the terms hereof or
thereof or any such other documents; provided that no Lender shall be liable for
any of the foregoing to the extent they arise from the gross negligence or
wilful misconduct of the Agent. If any indemnity furnished to the Agent for any
purpose shall, in the opinion of the Agent, be insufficient or become impaired,
the Agent may call for additional indemnity and cease, or not commence, to do
the acts indemnified against until such additional indemnity is furnished.
Section 7.06. Consequential Damages. THE AGENT SHALL NOT BE
RESPONSIBLE OR LIABLE TO ANY LENDER, LESSOR OR ANY OTHER PERSON OR ENTITY FOR
ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A
RESULT OF THIS AGREEMENT, THE OTHER Operative Documents OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Ssection 7.07. Payee of Reimbursement Note Treated as Owner.
The Agent may deem and treat the payee of any Reimbursement Note as the owner
thereof for all purposes hereof unless and until a written notice of the
assignment or transfer thereof shall have been filed with the Agent and the
provisions of Section 9.08(c) have been satisfied. Any requests, authority or
consent of any Person who at the time of making such request or giving such
authority or consent is the holder of any Reimbursement Note shall be conclusive
and binding on any subsequent holder, transferee or assignee of that
Reimbursement Note or of any Reimbursement Note or Reimbursement Notes issued in
exchange therefor or replacement thereof.
Section 7.08. Nonreliance on Agent and Other Lenders. Each
Lender agrees that it has, independently and without reliance on the Agent or
any other Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of Lessor and of Lessee and decision
to enter into this Agreement and that it will, independently and without
reliance upon the Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under this Agreement or
any of the other Operative Documents. The Agent shall not be required to keep
itself (or any Lender) informed as to the performance or observance by Lessor of
this Agreement or by Lessee of the Lease or by Lessor or Lessee of any of the
other Operative Documents or any other document referred to or provided for
herein or therein or to inspect the properties or books of Lessor, Lessee or any
other Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Lenders by the Agent hereunder or
under the other Operative Documents, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of Lessor, Lessee or any
other Person (or any of their Affiliates) which may come into the possession of
the Agent.
<PAGE>
Section 7.09. Failure to Act. Except for action expressly
required of the Agent hereunder or under the other Operative Documents, the
Agent shall in all cases be fully justified in failing or refusing to act
hereunder and thereunder unless it shall receive further assurances to its
satisfaction by the Lenders of their indemnification obligations under Section
7.05 against any and all liability and expense which may be incurred by the
Agent by reason of taking, continuing to take, or failing to take any such
action.
Section 7.10. Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent may
resign at any time by giving notice thereof to the Lenders and Lessor, and the
Agent may be removed at any time with or without cause by the Required Lenders.
Upon any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Agent. If no successor Agent shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Agent's notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent. Any successor Agent shall be a bank which
has a combined capital and surplus of at least $500,000,000. Upon the acceptance
of any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VII
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Agent hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
Section 8.01. Basis for Determining Interest Rate Inadequate
or Unfair. If on or prior to the first day of any Interest Period:
(a) the Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for
such Interest Period, or
(b) any LC Issuer advises the Agent that the London Interbank
Offered Rate, as the case may be, as determined by the Agent will not
adequately and fairly reflect the cost to such LC Issuer of funding a
Euro-Dollar Rate Tender Advance,
the Agent shall forthwith give notice thereof to Lessor and Lessee, whereupon
until the Agent notifies Lessor and Lessee that the circumstances giving rise to
such suspension no longer exist, the obligations of such LC Issuer to make or
maintain a Euro-Dollar Rate Tender Advance shall be suspended, and such Tender
Advance shall be a Base Rate Tender Advance.
<PAGE>
Section 8.02. Illegality. If, after the date hereof, the
adoption of any applicable law, rule or regulation, or any change therein or any
existing or future law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof (any
such agency being referred to as an "Authority" and any such event being
referred to as a "Change of Law"), or compliance by any Lender (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any Authority shall make it unlawful or impossible for any LC Issuer (or its
Lending Office) to make, maintain or fund any Euro-Dollar Tender Advance and
such LC Issuer shall so notify the Agent, the Agent shall forthwith give notice
thereof to Lessor and Lessee, whereupon until such LC Issuer notifies Lessor,
Lessee and the Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such LC Issuer to make or maintain Euro-Dollar
Tender Advances shall be suspended. Before giving any notice to the Agent
pursuant to this Section, such LC Issuer shall designate a different Lending
Office if such designation will avoid the need for giving such notice and will
not, in the judgment of such LC Issuer, be otherwise disadvantageous to such LC
Issuer. If such LC Issuer shall determine that it may not lawfully continue to
maintain and fund any outstanding Euro-Dollar Tender Advance to the last day of
the applicable Interest Period and shall so specify in such notice, Lessor shall
immediately pay in full the accrued interest on such Euro-Dollar Tender Advance
and any amount due such LC Issuer pursuant to Section 8.05(a), and such Tender
Advance shall become a Base Rate Tender Advance.
Section 8.03. Increased Cost and Reduced Return. (a) If after
the date hereof, a Change of Law or compliance by any LC Issuer (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any Authority:
(i) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding any such requirement included in an
applicable Euro-Dollar Reserve Percentage) against assets of, deposits
with or for the account of, or credit extended by, any Euro-Dollar Rate
Tender Advance (or its Lending Office); or
(ii) shall impose on any LC Issuer (or its Lending Office) or
on the London interbank market any other condition affecting its
Euro-Dollar Rate Tender Advance, its Reimbursement Note or its
obligation to make Euro-Dollar Rate Tender Advances;
and the result of any of the foregoing is to increase the cost to such LC Issuer
(or its Lending Office) of making or maintaining any Euro-Dollar Rate Tender
Advance, or to reduce the amount of any sum received or receivable by such LC
Issuer (or its Lending Office) under this Agreement or under its Reimbursement
Note with respect thereto, by an amount deemed by such LC Issuer to be material,
then, within 15 days after demand by such LC Issuer made to Lessor and
Lessee(with a copy to the Agent), Lessor shall pay to such LC Issuer such
additional amount or amounts as will compensate such LC Issuer for such
increased cost or reduction; provided, that no such LC Issuer shall be entitled
to any such compensation for any such increased cost or reduction of sum
received or receivable incurred more than 45 days prior to the date of its
written demand for such compensation.
<PAGE>
(b) If any LC Issuer shall have determined that after the date
hereof the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof, or compliance by any LC Issuer (or its Lending Office)
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any Authority, has or would have the effect of reducing the
rate of return on such LC Issuer's capital as a consequence of its obligations
hereunder to a level below that which such LC Issuer could have achieved but for
such adoption, change or compliance (taking into consideration such LC Issuer's
policies with respect to capital adequacy) by an amount deemed by such LC Issuer
to be material, then from time to time, within 15 days after demand by such LC
Issuer made to Lessor and Lessee, Lessor shall pay to such LC Issuer such
additional amount or amounts as will compensate such LC Issuer for such
reduction; provided, that no such LC Issuer shall be entitled to any such
compensation for any such reduction of the rate of return incurred more than 45
days prior to the date of its written demand for such compensation.
(c) Each LC Issuer will promptly notify Lessor, Lessee and the
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such LC Issuer to compensation pursuant to this Section and
will designate a different Lending Office if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the
judgment of such LC Issuer, be otherwise disadvantageous to such LC Issuer. A
certificate of any LC Issuer claiming compensation under this Section and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error. In determining such amount, such
LC Issuer may use any reasonable averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be applicable
with respect to any Participant, Assignee or other Transferee, and any
calculations required by such provisions shall be made based upon the
circumstances of such Participant, Assignee or other Transferee.
Section 8.04. Base Rate Tender Advances Substituted for
Euro-Dollar Rate Tender Advances. If (i) the obligation of any LC Issuer to make
or maintain any Euro-Dollar Rate Tender Advance has been suspended pursuant to
Section 8.02 or (ii) any LC Issuer has demanded compensation under Section 8.03,
and Lessee (acting on behalf of Lessor) shall, by at least 5 Euro-Dollar
Business Days' prior notice to such LC Issuer through the Agent, have elected
that the provisions of this Section shall apply to such LC Issuer, then, unless
and until such LC Issuer notifies Lessor and Lessee that the circumstances
giving rise to such suspension or demand for compensation no longer apply:
(a) all Tender Advances which would otherwise be made or
maintained by such LC Issuer as Euro-Dollar Tender Advances shall be
made instead as Base Rate Tender Advances (in all cases interest and
principal on such Base Rate Tender Advances shall be payable
contemporaneously with the related Euro-Dollar Rate Tender Advances, if
any, of the other LC Issuers), and
(b) after each of its Euro-Dollar Tender Advances has been
repaid, all payments of principal which would otherwise be applied to
repay such Euro-Dollar Rate Tender Advances shall be applied to repay
its Base Rate Tender Advances instead.
<PAGE>
Section 8.05. Compensation. Upon the request of any LC Issuer,
delivered to Lessor, Lessee and the Agent, Lessor shall pay to such LC Issuer
such amount or amounts as shall compensate such LC Issuer for any loss, cost or
expense incurred by such LC Issuer as a result of any payment or prepayment of a
Euro-Dollar Rate Tender Advance on a date other than the last day of an Interest
Period for such Euro-Dollar Rate Tender Advance; such compensation to include,
without limitation, an amount equal to the excess, if any, of (x) the amount of
interest which would have accrued on the amount so paid or prepaid for the
period from the date of such payment or prepayment or failure to prepay or
borrow to the last day of the then current Interest Period for such Euro-Dollar
Rate Tender Advance (or, in the case of a failure to prepay, the Interest Period
for such Euro-Dollar Rate Tender Advance which would have commenced on the date
of such failure to prepay) at the applicable rate of interest for such
Euro-Dollar Rate Tender Advance provided for herein (excluding, however, for
purposes of this Section only, the components of the Euro-Dollar Rate other than
the Adjusted London Interbank Rate in determining such rate of interest) over
(y) the amount of interest (as reasonably determined by such LC Issuer) such LC
Issuer would have paid on deposits in Dollars of comparable amounts having terms
comparable to such period placed with it by leading banks in the London
interbank market.
Section 8.06. Replacement of LC Issuer. In the event that any
LC Issuer gives any notice under Section 8.02 resulting in the suspension of its
obligation to make or maintain Euro-Dollar Tender Advances or requests
compensation pursuant to Section 8.03 or Lessor is required to make any payment
pursuant to Section 2.06(c), then, so long as the condition giving rise to such
suspension, compensation or payment exists, Lessee (acting on behalf of Lessor)
may designate another bank or financial institution which is an Eligible Lender
(such bank or financial institution being herein called a "Replacement LC
Issuer") acceptable to the Agent (which acceptance will not be unreasonably
withheld) and which is not an Affiliate of Lessor or Lessee, to replace the
Letter of Credit of such LC Issuer and assume such LC Issuer's Commitment
hereunder and purchase such LC Issuer's Reimbursement Note and rights under this
Agreement, all without recourse to or representation or warranty by, or expense
to, such LC Issuer, for a purchase price equal to the outstanding principal
amount of the Reimbursement Note of such LC Issuer plus any accrued but unpaid
interest on such Euro-Dollar Rate Tender Advance and accrued but unpaid fees
owing to such LC Issuer plus any amounts payable to such LC Issuer under Section
8.05, and upon such replacement, assumption, purchase and substitution, and
subject to the execution and delivery by the Replacement LC Issuer to the Agent,
for re-delivery to the Trustee, of the replacement Letter of Credit and to the
Agent of an Assignment and Acceptance, the Replacement LC Issuer shall succeed
to the rights and obligations of such LC Issuer hereunder. In the event that
Lessor exercises its rights under the preceding sentence, the LC Issuer against
which such rights were exercised shall no longer be a party hereto or have any
rights or obligations hereunder; provided that the obligations of Lessor to such
LC Issuer under Article VIII and Section 9.03 with respect to events occurring
or obligations arising before or as a result of such replacement shall survive
such exercise.
<PAGE>
ARTICLE IX
MISCELLANEOUS
Secton 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including telecopier
or similar writing) and shall be given to such party at its address or
telecopier number set forth on the signature pages hereof or such other address
or telecopier number as such party may hereafter specify for the purpose by
notice to each other party. Each such notice, request or other communication
shall be effective (i) if given by telecopier, when such telecopy is transmitted
to the telecopier number specified in this Section and the confirmation is
received, (ii) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid or (iii)
if given by any other means, when delivered at the address specified in this
Section; provided that notices to the Agent under Article II or Article VIII
shall not be effective until received. A copy of any notice given by any party
hereunder shall be given to the Lessee at its address specified in the Lease or
such other address or telecopier number as the Lessee may hereafter specify to
the parties hereto.
Section 9.02. No Waivers. No failure or delay by the Agent or
any Lender in exercising any right, power or privilege hereunder or under any
Reimbursement Note or other Loan Document shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 9.03. Expenses; Documentary Taxes. Lessor shall pay
(i) all out-of-pocket expenses of the Agent, including fees and disbursements of
special counsel for the Agent, in connection with the preparation of this
Agreement and the other Operative Documents, any waiver or consent hereunder or
thereunder or any amendment hereof or thereof or any Default or alleged Default
hereunder or thereunder and (ii) if a Default occurs, all out-of-pocket expenses
incurred by the Agent and the Lenders, including fees and disbursements of
counsel, in connection with such Default and collection and other enforcement
proceedings resulting therefrom, including out-of-pocket expenses incurred in
enforcing this Agreement and the other Operative Documents. Lessor shall
indemnify the Agent and each Lender against any transfer taxes, documentary
taxes, assessments or charges made by any Authority by reason of the execution
and delivery of this Agreement, the Reimbursement Notes or the other Operative
Documents.
Section 9.04. Indemnification. Lessor shall indemnify the
Agent, the Lenders and each Affiliate thereof and their respective directors,
officers, employees and agents from, and hold each of them harmless against, any
and all losses, liabilities, claims or damages to which any of them may become
subject, insofar as such losses, liabilities, claims or damages arise out of or
result from any actual or proposed use by Lessor of the proceeds of any
extension of credit by any Lender hereunder or breach by Lessor of this
Agreement or any other Loan Document or from any investigation, litigation
(including, without limitation, any actions taken by the Agent or any of the
Lenders to enforce this Agreement or any of the other Operative Documents) or
other proceeding (including, without limitation, any threatened investigation or
<PAGE>
proceeding) relating to the foregoing, and Lessor shall reimburse the Agent and
each Lender, and each Affiliate thereof and their respective directors,
officers, employees and agents, upon demand for any expenses (including, without
limitation, legal fees) incurred in connection with any such investigation or
proceeding; but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or wilful misconduct of the
Person to be indemnified.
Section 9.05. Setoff; Sharing of Setoffs. (a) Lessor hereby
grants to the Agent and each Lender a lien for all indebtedness and obligations
owing to them from Lessor upon all deposits or deposit accounts, of any kind, or
any interest in any deposits or deposit accounts thereof, now or hereafter
pledged, mortgaged, transferred or assigned to the Agent or any such Lender or
otherwise in the possession or control of the Agent or any such Lender for any
purpose for the account or benefit of Lessor and including any balance of any
deposit account or of any credit of Lessor with the Agent or any such Lender,
whether now existing or hereafter established hereby authorizing the Agent and
each Lender at any time or times with or without prior notice to apply such
balances or any part thereof to such of the indebtedness and obligations owing
by Lessor to the Lenders and/or the Agent then past due and in such amounts as
they may elect, and whether or not the collateral, if any, or the responsibility
of other Persons primarily, secondarily or otherwise liable may be deemed
adequate. For the purposes of this paragraph, all remittances and property shall
be deemed to be in the possession of the Agent or any such Lender as soon as the
same may be put in transit to it by mail or carrier or by other bailee.
(b) Each Lender agrees that if it shall, by exercising any
right of setoff or counterclaim or resort to collateral security or otherwise,
receive payment of a proportion of the aggregate amount of Obligations owed to
it which is greater than the proportion received by any other Lender in respect
of the aggregate amount of all Obligations held by such other Lender, the Lender
receiving such proportionately greater payment shall purchase such
participations in the Obligations owing to such other Lenders, and such other
adjustments shall be made, as may be required so that all such payments of
Obligations owing to such other Lenders shall be shared by the Lenders pro rata;
provided that if all or any portion of such payment received by the purchasing
Lender is thereafter recovered from such purchasing Lender, such purchase from
each other Lender shall be rescinded and such other Lender shall repay to the
purchasing Lender the purchase price of such participation to the extent of such
recovery together with an amount equal to such other Lender's ratable share
(according to the proportion of (x) the amount of such other Lender's required
repayment to (y) the total amount so recovered from the purchasing Lender) of
any Obligations paid or payable by the purchasing Lender in respect of the total
amount so recovered. Lessor agrees, to the fullest extent it may effectively do
so under applicable law, that any holder of a participation in any of the
Obligations, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of setoff or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of Lessor in the amount of such participation.
Section 9.06. Amendments and Waivers. (a) Any provision of
this Agreement, the Reimbursement Notes or any other Operative Documents may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed by Lessor and the Required Lenders (and, if the rights or duties of the
Agent are affected thereby, by the Agent); provided that, no such amendment or
waiver shall, unless signed by all Lenders, (i) change the Commitment of any
Lender or subject any Lender to any additional obligation, (ii) change the
<PAGE>
principal of or rate of interest on any Reimbursement Note or other
Reimbursement Obligation or any fees (other than fees payable to the Agent)
hereunder, (iii) change the date fixed for any payment of principal of or
interest on any Reimbursement Note or other Reimbursement Obligation or any fees
hereunder, (iv) change the amount of principal, interest or fees due on any date
fixed for the payment thereof, (v) change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Reimbursement Notes, or the
percentage of Lenders, which shall be required for the Lenders or any of them to
take any action under this Section or any other provision of this Agreement,
(vi) change the manner of application of any payments made under this Agreement
or the Reimbursement Notes, (vii) release or substitute any Individual Property
or all or any substantial part of any other collateral (if any) held as security
for the Obligations (other than (x) a substitution of Individual Properties
pursuant to Section 4.4(a) of the Lease, which may be done with the consent of
the Agent and the Required Lenders, which consent shall not be unreasonably
withheld or (y) a release expressly required pursuant to the provisions of the
Lease, or (viii) release any Guarantee given to support payment of the
Obligations.
(b) Lessee will not solicit, request or negotiate for or with
respect to any proposed waiver or amendment of any of the provisions of this
Agreement unless each Lender shall be informed thereof by Lessee and shall be
afforded an opportunity of considering the same and shall be supplied by Lessee
with sufficient information to enable it to make an informed decision with
respect thereto. Executed or true and correct copies of any waiver or consent
effected pursuant to the provisions of this Agreement shall be delivered by
Lessee to each Lender forthwith following the date on which the same shall have
been executed and delivered by the requisite percentage of Lenders. Lessor will
not, directly or indirectly, pay or cause to be paid any remuneration, whether
by way of supplemental or additional interest, fee or otherwise, to any Lender
(in its capacity as such) as consideration for or as an inducement to the
entering into by such Lender of any waiver or amendment of any of the terms and
provisions of this Agreement unless such remuneration is concurrently paid, on
the same terms, ratably to all such Lenders.
Section 9.07. No Margin Stock Collateral. Each of the Lenders
represents to the Agent and each of the other Lenders that it in good faith is
not, directly or indirectly (by negative pledge or otherwise), relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
Section 9.08. Successors and Assigns (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided that Lessor may not
assign or otherwise transfer any of its rights under this Agreement.
(b) The LC Participants may not sell sub-participations in the
Wachovia Letter of Credit, except to any Affiliate of such LC Participant (an
"LC Sub-participation Affiliate") and may not assign their rights and
obligations as an LC Participant except (i) pursuant to 2.01(b) or (ii)
otherwise to an Eligible Lender, but only with the express written consent of
Wachovia, the Agent and Lessee. Each LC Participant shall be entitled to the
benefits of Article VIII with respect to its participation in the Wachovia
Letter of Credit and the Reimbursement Note held by Wachovia. Subject to the
<PAGE>
provisions hereof, the LC Issuers (including Wachovia) may sell participations
in their Letters of Credit to any Person (an "Other Participant"). Each Other
Participant and LC Sub-participation Affiliate shall be entitled to the benefits
of Article VIII with respect to its participation or sub-participation in the
Letter of Credit and the Reimbursement Note held by the LC Issuer or LC
Participant in which it has purchased a participation or sub-participation, but
no Other Participant or LC Sub-participation Affiliate shall be, or have the
rights hereunder or under any of the other Operative Documents of, an LC
Participant. In the event of any such sale by an LC Issuer of a participating
interest to an Other Participant, or sale by an LC Participant of a
sub-participation to an LC Sub-participation Affiliate, such LC Issuer's or LC
Participant's obligations under this Agreement shall remain unchanged, such LC
Issuer or LC Participant shall remain solely responsible for the performance
thereof, such LC Issuer or LC Participant shall remain the holder of its
Reimbursement Note or participation in the Reimbursement Note of Wachovia, for
all purposes under this Agreement, and Lessor and the Agent shall continue to
deal solely and directly with such LC Issuer or LC Participant in connection
with such LC Issuer's or LC Participant's rights and obligations under this
Agreement. In no event shall an LC Issuer that sells a participation to an Other
Participant or an LC Participant that sells a sub-participation to an LC
Sub-participation Affiliate be obligated to the Other Participant or LC
Sub-participation Affiliate to take or refrain from taking any action hereunder
except that such LC Issuer or LC Participant may agree that it will not (except
as provided below), without the consent of the Other Participant or LC
Sub-participation Affiliate, agree to (i) the change of any date fixed for the
payment of principal of or interest on the related Reimbursement Obligations,
(ii) the change of the amount of any principal, interest or fees due on any date
fixed for the payment thereof with respect to the related Letter of Credit or
Reimbursement Obligations, (iii) the change of the principal amount of the
related Letter of Credit or Reimbursement Obligations, (iv) any change in the
rate at which either interest is payable thereon or (if the Other Participant or
LC Sub-participation Affiliate is entitled to any part thereof) fee is payable
hereunder from the rate at which the Participant is entitled to receive interest
or fee (as the case may be) in respect of such participation or
sub-participation, (v) the release or substitution of all or any substantial
part of the collateral (if any) held as security for the Obligations, or (vi)
the release of any Guarantee which may hereafter have been given to support
payment of the Obligations. Each LC Issuer selling a participating interest in
any Letter of Credit and Reimbursement Note shall, and each LC Participant
selling a sub-participation to an LC Sub-participation Affiliate, within 10
Domestic Business Days of such sale, provide the Lessor, Lessee and the Agent
with written notification stating that such sale has occurred and identifying
the Other Participant or LC Sub-participation Affiliate and the interest
purchased by such Other Participant or LC Sub-participation Affiliate.
(c) Any Lender may at any time assign to one or more banks or
financial institutions which would, upon such assignment, be an Eligible Lender
(each an "Assignee") all or a proportionate part of its rights and obligations
under this Agreement, the Reimbursement Notes, the Letters of Credit and the
other Operative Documents, and such Assignee shall assume all such rights and
obligations, pursuant to an Assignment and Acceptance, executed by such
Assignee, such transferor Lender and the Agent (and, in the case of an Assignee
that is not then a Lender, subject to clause (iii) below, by Lessor), (ii) with
respect to the sale of its rights and obligations as an LC Issuer, such
assignment must be of all of such rights and obligations and such assignee must
issue a replacement Letter of Credit, (iii) except during the continuance of a
Default, no interest may be sold by a Lender pursuant to this paragraph (c) to
any Assignee that is not then a Lender (or an Affiliate of a Lender) without the
<PAGE>
consent of Lessor, Lessee and the Agent, which consent shall not be unreasonably
withheld, and (iv) a Lender may not have more than 2 Assignees that are not then
Lenders at any one time. Upon (A) execution of the Assignment and Acceptance by
such transferor Lender, and the issuance of any replacement Letter of Credit, if
applicable, such Assignee, the Agent and (if applicable) Lessor, (B) delivery of
an executed copy of the Assignment and Acceptance to Lessor and the Agent, (C)
payment by such Assignee to such transferor Lender of an amount equal to the
purchase price agreed between such transferor Lender and such Assignee, and (D)
payment by such Assignee of a processing and recordation fee of $2,500 to the
Agent, such Assignee shall for all purposes be a Lender party to this Agreement
and shall have all the rights and obligations of a Lender under this Agreement
to the same extent as if it were an original party hereto with a Commitment as
set forth in such instrument of assumption, and the transferor Lender shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by Lessor, the Lenders or the Agent shall be required.
Upon the consummation of any transfer to an Assignee pursuant to this paragraph
(c), the transferor Lender, the Agent and Lessor shall make appropriate
arrangements so that, if required, a new Reimbursement Note is issued to each of
such Assignee and such transferor Lender.
(d) Subject to the provisions of Section 9.09, Lessor
authorizes each Lender to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and any prospective Transferee any and all
financial information in such Lender's possession concerning Lessor which has
been delivered to such Lender by Lessor pursuant to this Agreement or which has
been delivered to such Lender by Lessor in connection with such Lender's credit
evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater
payment under Section 8.03 than the transferor Lender would have been entitled
to receive with respect to the rights transferred, unless such transfer is made
with Lessor's and Lessee's prior written consent or by reason of the provisions
of Section 8.02 or 8.03 requiring such Lender to designate a different Lending
Office under certain circumstances or at a time when the circumstances giving
rise to such greater payment did not exist.
(f) Anything in this Section 9.08 to the contrary
notwithstanding, any Lender may assign and pledge all or any portion of the
Tender Advances and/or obligations owing to it to any Federal Reserve Bank or
the United States Treasury as collateral security pursuant to Regulation A of
the Board of Governors of the Federal Reserve System and any Operating Circular
issued by such Federal Reserve Bank, provided that any payment in respect of
such assigned Tender Advances and/or obligations made by Lessor to the assigning
and/or pledging Lender in accordance with the terms of this Agreement shall
satisfy Lessors' obligations hereunder in respect of such assigned Tender
Advances and/or obligations to the extent of such payment. No such assignment
shall release the assigning and/or pledging Lender from its obligations
hereunder.
Section 9.09. Confidentiality. Each Lender agrees to exercise
commercially reasonable efforts to keep any information delivered or made
available by Lessor to it which is clearly indicated to be confidential
information, confidential from anyone other than persons employed or retained by
such Lender who are or are expected to become engaged in evaluating, approving,
structuring or administering the Letters of Credit and the facility for making
Tender Advances; provided that nothing herein shall prevent any Lender from
<PAGE>
disclosing such information (i) to any other Lender, (ii) upon the order of any
court or administrative agency, (iii) upon the request or demand of any
regulatory agency or authority having jurisdiction over such Lender, (iv) which
has been publicly disclosed, (v) to the extent reasonably required in connection
with any litigation to which the Agent, any Lender or their respective
Affiliates may be a party, (vi) to the extent reasonably required in connection
with the exercise of any remedy hereunder, (vii) to such Lender's legal counsel
and independent auditors and (viii) to any actual or proposed Participant,
Assignee or other Transferee of all or part of its rights hereunder which has
agreed in writing to be bound by the provisions of this Section 9.09; provided
that should disclosure of any such confidential information be required by
virtue of clause (ii) of the immediately preceding sentence, to the extent
permitted by law, any relevant Lender shall promptly notify Lessor of same so as
to allow Lessor to seek a protective order or to take any other appropriate
action; provided, further, that, no Lender shall be required to delay compliance
with any directive to disclose any such information so as to allow Lessor to
effect any such action.
Section 9.10. Representations by Lenders. Each Lender hereby
represents that it is a commercial lender or financial institution which makes
loans and issues letters of credit in the ordinary course of its business and
that it will make its Tender Advances (if any) and issue its Letter of Credit
(or obtain its participation interest in the Wachovia Letter of Credit)
hereunder for its own account in the ordinary course of such business; provided
that, subject to Section 9.08, the disposition of the Obligations held by that
Lender shall at all times be within its exclusive control.
Section 9.11. Obigations Several. The obligations of each LC
Issuer hereunder are several, and no LC Issuer shall be responsible for the
obligations or commitment of any other LC Issuer hereunder. Nothing contained in
this Agreement and no action taken by the Lenders pursuant hereto shall be
deemed to constitute the Lenders to be a partnership, an association, a joint
venture or any other kind of entity. The amounts payable at any time hereunder
to each Lender shall be a separate and independent debt, and each Lender shall
be entitled to protect and enforce its rights arising out of this Agreement or
any other Loan Document and it shall not be necessary for any other Lender to be
joined as an additional party in any proceeding for such purpose.
Section 9.12. New York Law. This Agreement and each
Reimbursement Note shall be construed in accordance with and governed by the law
of the State of New York.
Section 9.13. Severability. In case any one or more of the
provisions contained in this Agreement, the Reimbursement Notes or any of the
other Operative Documents should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby and shall be enforced to the greatest extent permitted by law.
Section 9.14. Interest. In no event shall the amount of
interest, and all charges, amounts or fees contracted for, charged or collected
pursuant to this Agreement, the Reimbursement Notes or the other Operative
Documents and deemed to be interest under applicable law (collectively,
"Interest") exceed the highest rate of interest allowed by applicable law (the
"Maximum Rate"), and in the event any such payment is inadvertently received by
any Lender, then the excess sum (the "Excess") shall be credited as a payment of
principal, unless Lessor shall notify such Lender in writing that it elects to
<PAGE>
have the Excess returned forthwith. It is the express intent hereof that Lessor
not pay and none of the Lenders receive, directly or indirectly in any manner
whatsoever, interest in excess of that which may legally be paid by Lessor under
applicable law. The right to accelerate maturity of any of the Reimbursement
Notes or payment of the Reimbursement Obligations does not include the right to
accelerate any interest that has not otherwise accrued on the date of such
acceleration, and the Agent and the Lenders do not intend to collect any
unearned interest in the event of any such acceleration. All monies paid to the
Agent or the Lenders hereunder or under any of the Reimbursement Notes or the
other Operative Documents, whether at maturity or by prepayment, shall be
subject to rebate of unearned interest as and to the extent required by
applicable law. By the execution of this Agreement, Lessor covenants, to the
fullest extent permitted by law, that (i) the credit or return of any Excess
shall constitute the acceptance by Lessor of such Excess, and (ii) Lessor shall
not seek or pursue any other remedy, legal or equitable, against the Agent or
any Lender, based in whole or in part upon contracting for charging or receiving
any Interest in excess of the Maximum Rate. For the purpose of determining
whether or not any Excess has been contracted for, charged or received by the
Agent or any Lender, all interest at any time contracted for, charged or
received from Lessor in connection with this Agreement, the Reimbursement Notes
or any of the other Operative Documents shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread in equal parts
throughout the full term of the Commitments. Lessor, the Agent and each Lender
shall, to the maximum extent permitted under applicable law, (i) characterize
any non-principal payment as an expense, fee or premium rather than as Interest
and (ii) exclude voluntary prepayments and the effects thereof. The provisions
of this Section shall be deemed to be incorporated into each Reimbursement Note
and each of the other Operative Documents (whether or not any provision of this
Section is referred to therein). All such Operative Documents and communications
relating to any Interest owed by Lessor and all figures set forth therein shall,
for the sole purpose of computing the extent of obligations hereunder and under
the Reimbursement Notes and the other Operative Documents be automatically
recomputed by Lessor, and by any court considering the same, to give effect to
the adjustments or credits required by this Section.
Section 9.15. Interpretation. No provision of this Agreement
or any of the other Operative Documents shall be construed against or
interpreted to the disadvantage of any party hereto by any court or other
governmental or judicial authority by reason of such party having or being
deemed to have structured or dictated such provision.
Section 9.16. Waiver of Jury Trial; Consent to Jurisdiction.
Lessor (a) and each of the Lenders and the Agent irrevocably waives, to the
fullest extent permitted by law, any and all right to trial by jury in any legal
proceeding arising out of this Agreement, any of the other Operative Documents,
or any of the transactions contemplated hereby or thereby, (b) submits to the
nonexclusive personal jurisdiction in the State of New York, the courts thereof
and the United States District Courts sitting therein, for the enforcement of
this Agreement, the Reimbursement Notes and the other Operative Documents, (c)
waives any and all personal rights under the law of any jurisdiction to object
on any basis (including, without limitation, inconvenience of forum) to
jurisdiction or venue within the State of New York for the purpose of litigation
to enforce this Agreement, the Reimbursement Notes or the other Operative
Documents, and (d) agrees that service of process may be made upon it in the
manner prescribed in Section 9.01 for the giving of notice to Lessor. Nothing
herein contained, however, shall prevent the Agent from bringing any action or
exercising any rights against any security and against Lessor personally (but
not against the Preferred Member or the Common Members), and against any assets
of Lessor, within any other state or jurisdiction.
<PAGE>
Section 9.17. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
Section 9.18. Source of Funds -- ERISA. Each of the Lenders
hereby severally (and not jointly) represents to Lessor that no part of the
funds to be used by such Lender to fund any Tender Advance made by it or its
funding with respect to any Letter of Credit hereunder from time to time
constitutes (i) assets allocated to any separate account maintained by such
Lender in which any employee benefit plan (or its related trust) has any
interest nor (ii) any other assets of any employee benefit plan. As used in this
Section, the terms "employee benefit plan" and "separate account" shall have the
respective meanings assigned to such terms in Section 3 of ERISA.
Section 9.21. Exculpation. Neither Lessor nor any Preferred
Member or Common Member shall have any obligation or liability for payment of
the Obligations, either under this Agreement, the Reimbursement Notes or any
other Operative Documents, and the Lenders will have no claims or other recourse
against Lessor or any Preferred Member or Common Member, or against any assets
of Lessor or any Preferred Member or Common Member, in respect of the
Obligations, either under this Agreement, the Reimbursement Notes or any other
Operative Documents; and the Lenders shall not have any right to enforce any
obligations of a Preferred Member or Common Member to make a contribution to
Lessor under any provision of the Operating Agreement. Neither Lessor nor any
Preferred Member or Common Member nor any of their respective assets shall be
subject to any lien, levy, execution or any other enforcement procedure relating
directly or indirectly to the Obligations; provided, however, that in the event
of a dissolution of Lessor, any assets of Lessor that are received by any
Preferred Member or Common Member in such dissolution shall be subject to the
claims of the Lenders for the enforcement of payment thereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, under seal, by their respective authorized
officers as of the day and year first above written.
MOVIEPLEX REALTY LEASING,
L.L.C. (SEAL)
By: Randolph, Hudson & Co.,
Inc., its sole managing
member
By: /s/Roger J. Burns
-----------------
Roger J. Burns
Vice President
MoviePlex Realty Leasing,
L.L.C.
2 World Trade Center
Suite 2112
New York, New York 10048
Attention: Gilbert Sandler
Telecopier no: 212-775-0901
Confirmation no: 212-775-0222
Commitments WACHOVIA BANK, N.A.,
as Agent and as a
Lender (SEAL)
By: /s/Douglas L. Strickland
------------------------
Douglas L. Strickland
Title: Vice President
FORM OF LETTER OF CREDIT
IRREVOCABLE LETTER OF CREDIT
[LETTER OF CREDIT ISSUER LETTERHEAD]
IRREVOCABLE LETTER OF CREDIT NO.
Beneficiary: FIRST UNION NATIONAL BANK
Applicant/
Account Party: MOVIEPLEX REALTY LEASING, L.L.C.
Issue Date: November 20, 1997
Expiry Date: November 5, 2002
Amount: [$43,260,624.99-Series A-1/B-1] [$15,179,166.67-Series A-2/B-2 and
Series A-3/B-3]
Attention:
Ladies and Gentlemen:
At the request and on the instructions of MOVIEPLEX REALTY LEASING, L.L.C., a
New Jersey limited liability company (the "Bond Issuer"), we hereby issue in
your favor, not individually, but solely as Trustee under that certain Indenture
of Trust dated as of November 1, 1997 (the "Indenture") between the Trustee and
the Bond Issuer, this irrevocable direct pay letter of credit (this "Letter of
Credit") in the amount of [$43,260,624.99 for A-1/B-1] [$15,179,166.67 for
A-2/B-2 and A-3/B-3](the "Stated Amount") of which an amount equal to
[$35,544,548.61 for A-1] [$12,472,215.28 for A-2 and A-3] (the "Series [A-1]
A-2] [A-3] Bond Stated Amount") may be drawn upon with respect to the payments
of interest and principal of the Series [A-1] A-2] [A-3] Bonds referred to in
the Indenture, and an amount equal to [$7,716,076.38 for B-1] [$2,706,951.39 for
B-2 and B-3] (the "Series [B-1] [B-2] [B-3] Bond Stated Amount") may be drawn
upon with respect to the payment of interest and principal of the Series [B-1]
[B-2] [B-3] Bonds referred to in the Indenture; the Series [A-1] A-2] [A-3]
Bonds and the Series [B-1] [B-2] [B-3] Bonds are individually and collectively
referred to herein, as the context may require, the "Bonds". Notwithstanding
anything to the contrary contained herein, the terms "Series [A-1] A-2] [A-3]
Bonds", "Series [B-1] [B-2] [B-3] Bonds" and "Bonds" shall not include any Bonds
which have been purchased with a "Tender Drawing" as hereinafter defined
("Pledged Bonds") unless the Agent has given notice of reinstatement hereof with
respect to such Pledged Bonds pursuant hereto (in which case they shall no
longer be Pledged Bonds). All payments by us of drawings under this Letter of
Credit will be paid with our own funds.
<PAGE>
This Letter of Credit is issued for the account of the Bond Issuer pursuant to
that certain Reimbursement Agreement dated as of November 20, 1997, as amended
or supplemented from time to time (the "Reimbursement Agreement") between the
Bond Issuer, Wachovia Bank, N.A., as Agent for the Lenders (the "Agent"), us,
and certain other Lenders parties thereto, pursuant to which the Letter of
Credit and certain other letters of credit (the "Other Letters of Credit") were
issued.
Subject to the provisions of this Letter of Credit, a demand for payment may be
made by you by presentation to us, which presentation may be by telecopier and
confirmed by telephone to us, at _____________________________ , Attention:
_____________________, telecopier no.______________________, telephone no.
__________________, of your completed sight draft in the form of Attachment A
attached hereto, accompanied by your signed certificate (with the blanks filled
in appropriately) (which sight draft and certificate may be telecopied as
aforesaid):
1. If the drawing is being made with respect to the regularly scheduled payment
of principal and interest of Series [A-1] A-2] [A-3] Bonds (a "Series A Bonds
Scheduled Payment Drawing"), your certificate in the form of Annex A attached
hereto; or
2. If the drawing is being made with respect to the regularly scheduled payment
of interest or principal and interest, as the case may be, of the Series [B-1]
[B-2] [B-3] Bonds (a "Series B Bonds Scheduled Payment Drawing"), your
certificate in the form of Annex B attached hereto; or
3. If the drawing is being made with respect to the payment of the purchase
price of Bonds tendered or required to be tendered pursuant to the Bonds
pursuant to Section 4.04 of the Indenture (a "Tender Drawing"), your certificate
in the form of Annex C attached hereto; or
4. If the drawing is being made with respect to the payment in full of the
principal amount outstanding and all accrued interest on the Bonds following the
occurrence of an Event of Default under the Indenture (a "Default Drawing"),
your certificate in the form of Annex D attached hereto.
More than one demand for payment may be made under Paragraphs 1, 2, or 3 of this
Letter of Credit. A demand for payment may be made under this Letter of Credit
prior to the Expiry Date at any time on a Business Day during our regular
business hours at our address set forth above. A demand for payment and drawing
hereunder with respect to the payment of interest on or principal of the Bonds
(including the interest or principal component of the redemption or purchase
price of Bonds, in the case of Tender Drawing) shall not exceed that portion of
the Series [A-1] A-2] [A-3] Bond Stated Amount or Series [B-1] [B-2] [B-3] Bond
Stated Amount, as the case may be, allocated herein to interest or to principal,
respectively, as the same is reduced from time to time as herein provided. As
used herein, "Business Day" shall mean any day other than (i) a Saturday or
Sunday, or (ii) a day on which commercial banks in Atlanta, Georgia and New
York, New York, are authorized by law or executive order to close.
The termination date of this Letter of Credit shall be the earliest of: (i) the
close of business on November 5, 2002, or, if such day is not a Business Day,
then on the next succeeding Business Day (such date, as it may be extended from
time to time as provided in the next sentence, being called the "Expiry Date"),
(ii) subject to reinstatement pursuant hereto, the date on which all then
remaining available amounts hereunder are drawn, (iii) the close of business on
<PAGE>
the date on which we receive notice from the Trustee that no Bonds remain
outstanding, (iv) the close of business on the effective date of a substitute
letter of credit herefor is delivered pursuant to Section 5.08 of the Indenture,
and (v) upon the delivery by the Trustee to us of this Letter of Credit for
cancellation accompanied by a certificate of the Trustee in the form of
Attachment B attached hereto. At the written request of the Bond Issuer, we may
give our written consent to periodic extensions of the Expiry Date. We shall
deliver to you a certificate, in the form of Attachment C attached hereto,
evidencing each extension of the Expiry Date. You shall surrender this Letter of
Credit to us on the first Business Day following the termination date of this
Letter of Credit as set forth above.
A draft accompanied by a completed signed certificate presented to us prior to
12:00 noon (Atlanta, Georgia time) will be honored no later than 3:00 p.m.
(Atlanta, Georgia time) on the same Business Day. A draft accompanied by a
completed signed certificate presented to us after 12:00 noon (Atlanta, Georgia
time) on any Business Day will be honored no later than 3:00 p.m. (Atlanta,
Georgia time) on the following Business Day. Payment under this Letter of Credit
shall be made in accordance with the payment instructions set forth in the
completed certificate accompanying each draft. Notwithstanding any other
provisions of this Letter of Credit, payment shall be deemed to have been made
when such payment instructions have been entered on the Federal Reserve wire or,
in the event such payment instructions specify an account maintained with us,
when we have credited such account. If a demand for payment made by you
hereunder does not, in any instance, conform to the terms and conditions of this
Letter of Credit, we shall give you prompt notice that the demand for payment
was not effected in accordance with the terms and conditions of this Letter of
Credit, stating the reasons therefor and that the we will upon your instructions
hold any documents at your disposal or return the same to you. Upon being
notified that the demand for payment was not effectuated in conformity with this
Letter of Credit, you may attempt to correct any such non-conforming demand for
payment to the extent that you are entitled to do so.
Notwithstanding any contrary provision of the hereinafter defined Uniform
Customs, this Letter of Credit is successively transferable in its entirety (but
not in part) to a successor Trustee upon receipt by us (a copy of which shall be
furnished to the Agent) of your written request for such transfer in
substantially the form of Attachment E attached hereto, acknowledged by a
purported officer of the Trustee and the transferee addressed to us and
certifying that the transferee is a successor Trustee under the Indenture.
Each demand for payment by us hereunder shall, pro tanto, reduce that portion of
the Stated Amount available under this Letter of Credit; provided, however,
that:
(i) unless notice of non-reinstatement is given to you by the Agent prior to the
sixth day (or, if such sixth day is not a Domestic Business Day, the next
preceding Domestic Business Day) following payment of a Series A Bonds Scheduled
Payment Drawing or a Series B Bonds Scheduled Payment Drawing, the Stated Amount
shall be reinstated by the amount: (x) of interest (but not principal) included
in a Series A Bonds Scheduled Payment Drawing; and (y) of interest included in a
Series B Bonds Scheduled Payment Drawing; and
<PAGE>
(ii) with respect to principal and interest included in a Tender Drawing, there
shall be no reinstatement with respect to the related Pledged Bonds unless and
until, and only to the extent, the Agent notifies us, the Trustee and RealVest
Securities Corporation, or any successor Remarketing Agent under the Indenture
(the "Remarketing Agent") by telephone (thereafter promptly confirmed in
writing), that this Letter of Credit has been reinstated, which notice shall not
be given until the Agent has received notice from the Remarketing Agent that
such Pledged Bonds have been successfully remarketed, subject to the
reinstatement of this Letter of Credit, and that all Reimbursement Obligations
with respect thereto shall be paid in full on the effective date of the sale of
the Pledged Bonds so remarketed from the proceeds of such remarketing.
The Stated Amount of this Letter of Credit shall also be reduced by the amount
stated in a written notice of reduction executed by a purported officer of the
Trustee substantially in the form of Attachment D to this Letter of Credit and
such a reduction of the Stated Amount shall be effective as of the later of (i)
the date specified in such notice or (ii) the actual date of receipt by us of
such notice at the above-stated address; and on or after the effective date of
such reduction we shall have the right to require the Trustee to surrender this
Letter of Credit to us and to accept on such date of surrender a substitute
irrevocable direct pay letter of credit dated such date of surrender in a Series
[A-1] [A-2] [A-3] Bond Stated Amount equal to the amount to which the Series
[A-1] [A-2] [A-3] Bond Stated Amount of the Letter of Credit shall have been so
permanently reduced and in an Series [B-1] [B-2] [B-3] Bond Stated Amount equal
to the amount to which the Series [B-1] [B-2] [B-3] Bond Stated Amount shall
have been so permanently reduced, but otherwise having terms identical to those
of this Letter of Credit.
Under no circumstances shall draws be made on this Letter of Credit to make
payments with respect to Bonds owned of record by the Bond Issuer (collectively,
the "Issuer Owned Bonds").
To the extent not inconsistent with the express terms hereof this Letter of
Credit is subject to the Uniform Customs and Practice for Documentary Credits
(1993 revision) (International Chamber of Commerce Publication No. 500) (the
"Uniform Customs"). This Letter of Credit shall be deemed to be made under the
laws of the State of New York, including Article 5 of its Uniform Commercial
Code, and shall, as to matters not governed by the Uniform Customs, be governed
by and construed in accordance with the laws of the State of New York without
reference to the conflict of laws principles thereof.
Your failure to make any partial drawing at any time shall not impair or reduce
the availability of this Letter of Credit in any subsequent period or our
obligation to honor your subsequent demands for payment made in accordance with
the terms of this Letter of Credit.
We undertake that your draft and certificate drawn and presented on or before
the Expiry Date in conformity with the terms of this Letter of Credit will be
duly honored.
<PAGE>
This Letter of Credit sets forth in full our undertaking, and such undertaking
shall not be deemed in any way to be modified, amended, amplified or otherwise
affected by any document, instrument or agreement referred to herein (including
the Bonds), except only the Uniform Customs and the certificates provided for
herein.
Very truly yours,
[LETTER OF CREDIT ISSUER]1
By:
Authorized Signature
Title:
- --------
1 Wachovia Bank, N.A. for Series A-1 and B-1, SunTrust Bank, Atlanta for Series
A-2 and B-2 and The Bank of New York for Series A-3 and B-3
FORM OF BOND PURCHASE AGREEMENT
between
MOVIEPLEX REALTY LEASING, L.L.C.
and
[THE PURCHASER]
Dated November 20, 1997
<PAGE>
FORM OF BOND PURCHASE AGREEMENT
THIS BOND PURCHASE AGREEMENT is dated November 20, 1997, between
Movieplex Realty Leasing, L.L.C. ("Movieplex") and [the Purchaser] (the
"Purchaser").
1. Background.
Movieplex, in order to obtain financing for a certain project
(the "Project") consisting of the acquisition or groundleasing of
yet-to-be-identified parcels of real property located in various states within
the United States, the construction thereon of state-of-the-art multiplex movie
theaters and the leasing of such parcels and theaters to Carmike Cinemas, Inc.
(the "Company") pursuant to a Master Lease dated November 20, 1997 (the
"Lease"), is issuing and selling the Bonds (as hereinafter defined) to the
Purchaser on the date hereof. The debt service on the Bonds and the purchase
price of Bonds tendered for purchase shall initially be paid from drawings under
irrevocable, direct pay letters of credit (the "Letters of Credit") to be issued
by Wachovia Bank, N.A., SunTrust Bank, Atlanta, and The Bank of New York
(collectively, the "Banks").
2. Definitions.
For purposes of this Agreement the following terms have the
meanings specified:
"Agreement" means this Bond Purchase Agreement.
"Banks" shall have the meaning set forth in Section 1 hereof.
"Bonds" means Movieplex's Adjustable Rate Tender Securities
(Carmike Cinemas, Inc.) 1997 Series A in the aggregate principal amount of
$59,775,000, which are being issued by Movieplex pursuant to the Indenture,
consisting of Series A-1 Bonds in the aggregate principal amount of $35,125,000,
Series A-2 Bonds in the aggregate principal amount of $12,325,000 and Series A-3
Bonds in the aggregate principal amount of $12,325,000.
"Company" means Carmike Cinemas, Inc., a Delaware corporation,
and its successors and assigns.
"Indenture" means the Indenture of Trust dated as of November
1, 1997 between Movieplex and First Union National Bank, as Trustee (unless
otherwise provided in this Agreement, terms used in this Agreement shall have
the same meaning as provided in the Indenture).
"Lease" means that certain Master Lease between Movieplex and
the Company dated November 20, 1997, as the same may be amended or supplemented.
"Offering Memorandum" means the Offering Memorandum, dated the
date hereof, with respect to the Bonds.
"Project" shall have the meaning set forth in Section 1 of
this Agreement.
"Purchaser" means [the Purchaser].
<PAGE>
"Transaction Documents" means the Lease, the Indenture, the
Reimbursement Agreement, the Applicable Construction Agreements, the Lessee
Undertaking, the Mortgages, the Assignments of Rents, the Master Assignment, the
Agency and Development Agreement, the Payment Direction Agreement, the Indexing,
Remarketing and Placement Agent Agreement (as each such term is defined in the
Lease) in connection with the Bonds and all agreements, documents or contracts
between the Landlord and the Tenant or the Landlord and the Agent and, if
applicable, the Lenders in connection with the transactions contemplated by any
of the foregoing.
"Trustee" means First Union National Bank, as trustee for the
Bonds.
3. Sale and Purchase of Bonds.
(A) Sale and Purchase of Bonds. Subject to the terms and
conditions contained in this Agreement, Movieplex is selling simultaneously
herewith to the Purchaser, and the Purchaser is purchasing simultaneously
herewith from Movieplex, the Bonds. The Bonds are being issued pursuant to and
in the forms described in the Indenture.
(B) The Bonds will be issued as Book-Entry Bonds. The
Depository Trust Company ("DTC"), New York, New York, will act as a securities
depository for the Bonds. The Bonds will be issued as fully-registered
securities registered in the name of Cede & Co. (DTC's partnership nominee). One
fully-registered Bond certificate will be issued for each maturity, each in the
aggregate principal amount of such maturity, and will be deposited with DTC.
Settlement of the sale of the Bonds is being made by the deposit of such fully
registered Bond certificates with DTC against payment in immediately available
funds to the Trustee.
4. Representations and Warranties of Movieplex. Movieplex represents
and warrants to the Purchaser that:
(A) Authority. Movieplex is a limited liability company duly
formed, validly existing and in good standing under the laws of the State of New
Jersey. The execution, delivery and performance of this Agreement, the
Transaction Documents to which Movieplex is a party and the Bonds have been duly
authorized by all necessary action on the part of Movieplex and such execution,
delivery and performance do not and will not contravene, or constitute a default
under, any provision of applicable law or regulation or the Certificate of
Formation or Amended and Restated Operating Agreement of Movieplex, or any
judgment, order, decree, agreement or instrument binding on it. This Agreement,
the Bonds and the Transaction Documents to which Movieplex is a party constitute
valid and binding obligations of Movieplex enforceable in accordance with their
respective terms.
(B) Litigation and Governmental Authorization. There are no
actions, suits or proceedings pending or, to the knowledge of Movieplex,
threatened by or against Movieplex, at law or in equity or before or by any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, an adverse decision in which might materially
adversely affect Movieplex or Movieplex's ability to perform its obligations
under this Agreement, the Transaction Documents to which Movieplex is a party or
the Bonds. All authorizations, consents and approvals of governmental bodies or
agencies required in connection with the execution and delivery by Movieplex of,
or in connection with the performance by Movieplex of its obligations under this
Agreement, the Transaction Documents to which Movieplex is a party and the
Bonds, have been obtained and are in full force and effect.
<PAGE>
(C) Information. In connection with its participation in the
preparation of the Offering Memorandum, and without having undertaken to
determine independently the accuracy, completeness or fairness of the statements
contained in the Offering Memorandum, Movieplex has no reason to believe that
any of the information contained in the Offering Memorandum relating to the
Banks or the Company contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
5. Limitations on the Representations and Warranties of Movieplex.
(A) It is specifically understood and agreed that Movieplex
makes no representation as to the financial position or business condition of
the Banks or the Company and does not represent or warrant as to the accuracy,
correctness or completeness of any of the statements, information (financial or
otherwise), representations or certifications furnished or to be made and
furnished by the Company in connection with the execution and delivery of the
Lease or the consummation of the transactions contemplated thereunder or in
connection with the execution and delivery of this Agreement or the issuance and
sale of the Bonds.
(B) IT IS SPECIFICALLY UNDERSTOOD AND AGREED THAT THE BONDS
ARE SPECIAL, LIMITED OBLIGATIONS OF MOVIEPLEX AND ARE PAYABLE SOLELY FROM THE
SOURCES REFERRED TO IN THE INDENTURE.
(C) All covenants, stipulations, promises, agreements and
obligations of Movieplex set forth herein shall be deemed to be the covenants,
stipulations, promises, agreements and obligations of Movieplex, and not of any
member, manager or employee of Movieplex in his or her individual capacity, and
no recourse shall be had for the payment of the principal, purchase price or
redemption price of or interest on the Bonds or for any claim based thereon or
hereunder against any member, manager or employee of Movieplex or any person
executing the Bonds. Any certificates signed by a member, manager or employee of
Movieplex and delivered to the Purchaser shall be deemed a representation and
warranty made by Movieplex to the Purchaser as to the statements made therein.
6. Representations and Warranties of the Purchaser.
By its purchase of the Bonds, the Purchaser represents and
warrants to Movieplex that:
(A) The Purchaser has not requested from Movieplex any
information concerning the business and affairs of the Banks or the Company and
hereby (i) expressly waives the right to receive such information from
Movieplex, and (ii) relieves Movieplex of any liability for failure to provide
such information or for the inclusion in any such information provided by the
Banks or the Company or in any of the documents, representations or
certifications provided or to be provided by the Company of any untrue statement
or for the failure therein to include any information necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading. The Purchaser is a series of shares of beneficial
interests issued by an investment company registered under the Investment
Company Act of 1940, as amended, and has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of investments of the general character of the Bonds.
(B) This Agreement has been duly executed and delivered by the
Purchaser and constitutes a valid and binding agreement of the Purchaser.
<PAGE>
(C) The Purchaser is purchasing the Bonds for its own account
for investment and not with a view to the distribution or resale thereof,
provided that the Purchaser reserves the right to dispose of any or all of the
Bonds in compliance with federal and state securities law, if in the future it
is deemed desirable by the Purchaser to do so.
7. Conditions of Sale. The Purchaser's obligation to purchase the Bonds
under this Agreement is subject to the satisfaction of the following conditions,
each of which the Purchaser acknowledges has been satisfied on the date hereof:
(A) Upon settlement, the Bonds will have received ratings from
Standard & Poor's Rating Group, Inc. as follows:
Series A-1 $35,125,000 "AA+"/"A-1+"
Series A-2 12,325,000 "AA-"/"A-1+"
Series A-3 12,325,000 "AA-"/"A-1+"
(B) The Trustee will have received irrevocable, direct pay
Letters of Credit from the Banks fully securing the Bonds as well as appropriate
opinions of counsel to Movieplex and counsel to the Agent for the Banks,
respectively, as to the due authorization, validity and enforceability of the
Bonds and of the Letters of Credit.
8. Offering Memorandum. The Purchaser acknowledges its receipt on the
date hereof of a copy of the Offering Memorandum. The Purchaser acknowledges
that (i) Movieplex has not verified or approved, and does not represent or
warrant in any way, any of the information set forth in the Offering Memorandum
other than information set forth under the heading "THE ISSUER", and (ii) the
Banks have not verified or approved, and do not represent or warrant in any way,
any of the information set forth in the Offering Memorandum other than
information set forth under the heading " THE LC ISSUERS" and "THE LETTERS OF
CREDIT".
9. Miscellaneous.
(A) All covenants, agreements, representations and warranties
made by the parties in this Agreement and in certificates or other documents
delivered pursuant hereto shall survive the sale and delivery of the Bonds to
the Purchaser and shall continue in full force and effect until all the Bonds
are paid in full and thereafter to the extent provided by the parties and shall
be binding upon and inure to the benefit of the successors and assigns of the
parties hereto.
(B) This Agreement shall be construed in accordance with and
governed by the laws of the State of New Jersey.
(C) The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute a part of
this Agreement.
(D) This Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.
10. Concerning the Purchaser. [To be supplied by the Purchaser.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Bond
Purchase Agreement as of the day and year first above written.
MOVIEPLEX REALTY LEASING, L.L.C.
By: RANDOLPH, HUDSON & CO., INC., Manager
By:
Name: Roger J. Burns
Title: Vice President
THE PURCHASER
By:
Name:
Title:
AGENCY AND DEVELOPMENT AGREEMENT
THIS AGENCY AND DEVELOPMENT AGREEMENT is dated November 20, 1997
between MOVIEPLEX REALTY LEASING, L.L.C., a New Jersey limited liability company
having an address at 2 World Trade Center, Suite 2112, New York, New York 10048
(the "Owner") and CARMIKE CINEMAS, INC., a Delaware corporation having an
address at 1301 First Avenue, Columbus, Georgia 31901-2105 (the "Company").
RECITALS
A. Concurrently herewith, the Owner and the Company are
entering into a Master Lease dated the date hereof (the "Lease") in connection
with the leasing of the Leased Property by the Owner to the Company, all as more
fully set forth therein.
B. In order to provide for the selection and acquisition of
the Individual Properties and the development and construction of the Applicable
Projects thereon, the Owner and Company have agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants contained herein, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to them in the Lease. In addition, the
following terms shall have the meanings set forth below:
"Applicable Acquisition Agreement" means, with respect to each
Individual Property, the agreement between the Owner, as purchaser or ground
lessee, as the case may be, and the seller of such Individual Property, as
seller or ground lessor, as the case may be, pursuant to which the Owner has
agreed or will agree to purchase or ground lease such Individual Property.
"Applicable Approvals" means, with respect to each Individual
Property, all permits, approvals and authorizations, including without
limitation site plan approval or similar land development approvals, which are
required to be obtained under Legal Requirements or by Governmental Authorities
in connection with the acquisition or ground lease of such Individual Property,
the construction of the Improvements and the Off-Site Improvements and the other
activities constituting part of the Applicable Project.
"Applicable Assignment Agreement" means, with respect to each
Individual Property, the assignment agreement executed by the Company in favor
of the Owner, assigning to the Owner all of the Company's right, title and
interest in and to any Project Documents executed by the Company with respect to
such Individual Property or the Applicable Project.
"Applicable Completion Date" means, with respect to each
Individual Property, the date as of which the Improvements thereon are
substantially completed, as such date shall be evidenced by a certificate of
occupancy (or its equivalent) issued by the applicable Governmental Authority
and certified by the Company to the Owner and the Agent pursuant to subsection
7(e)(vi) hereof.
"Applicable Construction Agreement" means, with respect to
each Individual Property, the agreement or agreements between the Owner and any
Contractor(s) with respect to the construction of the Improvements on or at such
Individual Property.
<PAGE>
"Applicable Plans and Specifications" means, with respect to
each Individual Property, the architectural and engineering drawings and
specifications describing the construction of the Improvements thereon which
have been prepared for and accepted by the Company and which are approved by the
Owner and the Agent prior to the commencement of any construction with respect
to the Applicable Project.
"Applicable Project" means, with respect to each Individual
Property, the acquisition or lease, construction, renovation or installation of
such Individual Property, the Improvements thereon and the Off-Site Improvements
relating thereto, including any expansion of, or additional equipment installed
in, any Individual Property, which is funded in whole or in part by the proceeds
of the issuance of the Bonds, for use by the Company pursuant to the Lease or
any Supplemental Lease.
"Applicable State" means, with respect to each Individual
Property, the state or commonwealth within which such Individual Property, or
any portion thereof, is located.
"Construction Disbursement" means, with respect to each
Individual Property, a disbursement by the Trustee from the Project Fund for the
Costs of constructing, renovating or installing the Applicable Project,
including without limitation the Improvements or Off-Site Improvements at or
with respect to such Individual Property.
"Contractor" means, with respect to each Applicable Project,
any contractor selected by the Company, with the approval of the Owner and the
Agent, to construct, renovate and install such Applicable Project.
"Final Disbursement" means, with respect to each Individual
Property, the final disbursement by the Trustee from the Project Fund for the
Costs of the Applicable Project.
"Land Acquisition Disbursement" means, with respect to each
Individual Property, a disbursement by the Trustee from the Project Fund for the
Costs of acquiring title to, or (subject to the approval of the Agent) ground
leasing, such Individual Property.
"Owner Indemnitees" shall have the meaning given to such term
in Section 9 hereof.
"Project Documents" means, with respect to each Individual
Property, (i) the Applicable Acquisition Agreement, (ii) the Applicable
Construction Agreement, (iii) the Applicable Approvals, (iv) the Applicable
Plans and Specifications and (v) any and all other documents executed by the
Owner, or executed by the Company and assigned to the Owner pursuant to the
Applicable Assignment Agreement, relating to the acquisition or ground leasing
of such Individual Project or the design or construction of the Applicable
Project.
"Requisition" means a standard requisition for disbursements
from the Project Fund, in the form attached as Exhibit A, duly executed by
Authorized Representatives of the Owner, the Company and the Agent.
<PAGE>
2. Agency Relationship.
(a) Subject to the provisions of subsections 2(b) and 3(b)
hereof, the Owner, with respect to each Individual Property, hereby irrevocably
appoints the Company as the Owner's agent, with full authority in the place and
stead of the Owner and in the name of the Owner or otherwise, from time to time
in the Company's discretion, to (i) select the location of such Individual
Property and negotiate the terms of the acquisition or ground lease thereof, and
obtain the approval of the Agent with respect to any such ground lease; (ii)
take any and all action which the Company may deem necessary or advisable in
order to cause the Applicable Project, including the Improvements and Off-Site
Improvements in connection therewith, to be planned, designed and constructed;
(iii) exercise any and all rights and remedies, take any action and give all
consents, demands and notices, that the Owner is permitted or required to
exercise, take or give, as applicable, under or pursuant to the Project
Documents; (iv) subject to subsection 5(b) below, execute any change orders
under any Applicable Construction Agreement; (v) negotiate any modification,
amendment or supplement to any Project Document; (vi) cancel or terminate any
Project Document and (vii) subject to the provisions of Paragraph 7 hereof, act
as disbursing and paying agent on behalf of the Owner with respect to
disbursements to be made from the Owner's account number 1390296501 maintained
at Wachovia Bank, N.A. The Owner hereby ratifies all that the Company shall
lawfully do or cause to be done pursuant to this subsection 2(a). The rights
conferred on the Company hereunder shall not impose any duty or obligation upon
it to exercise any such rights. The Company acknowledges that the Owner has not
participated, and will not participate, in any negotiations of or with respect
to the Project Documents, and that the Owner has and will have no knowledge
about the appropriateness, quality or fitness for a particular purpose of any of
the Individual Properties.
(b) Notwithstanding anything to the contrary contained in
subsection 2(a), in no event shall the Company take any action or exercise any
right or remedy:
(i) if the taking of such action or the exercise of such
right or remedy would (A) cause the Owner or any Individual Property, or the use
or operation thereof, to be in violation of any applicable Legal Requirements,
(B) cause the Owner to be in breach or default under any Project Document, the
Indenture, the Reimbursement Agreement or any other Transaction Document, (C)
result in a material decrease in the value of any Individual Property or (D)
cause the Owner to incur any cost or expense (other than any cost or expense
which will be paid or reimbursed by moneys from the Project Fund);
(ii) if the Agent or the Trustee shall be entitled to take
such action or exercise such right or remedy pursuant to the Lease, the
Indenture, the Reimbursement Agreement or any other Transaction Document; or
(iii) if any such rights or remedies have been specifically
reserved to the Owner or the Agent under the Lease, the Indenture, the
Reimbursement Agreement or any other Transaction Document.
3. Project Documents.
(a) The Company shall have the right to select the other
parties to each of the Project Documents (each, a "Third Party") and, subject to
the terms and conditions hereinafter set forth, negotiate all of the terms and
provisions thereof. Any Project Document to be executed by the Company shall
contain a provision whereby the Third Party (i) acknowledges that such Project
<PAGE>
Document will be assigned by the Company to the Owner and consents to such
assignment, and (ii) agrees that the responsibility, liability or obligation of
the Owner under such Project Document to the Third Party (or any other Person)
for any loss, cost, damage or expense (including, without limitation, reasonable
attorneys' fees and expenses) that the Third Party (or any other Person) may
suffer or incur as a result of any representation, warranty, covenant or
obligation to be made or performed by the Company thereunder shall be limited to
the Owner's interest in the Individual Property which is the subject matter of
such Project Document and that no officer, director, manager, shareholder,
partner, member or other employee, agent or representative of the Owner shall
have any liability or obligation thereunder to the Third Party (or any other
Person). Any Project Document executed by the Owner shall contain provisions
similar to those described in clause (ii) of the immediately preceding sentence.
(b) Upon the written request of the Company, the Owner agrees
to promptly execute and deliver the Project Documents for each Individual
Property and any amendments, supplements or modifications to any such Project
Documents; provided, however, that change orders to the Applicable Construction
Agreement may be executed by the Company in accordance with the provisions of
subsections 2(a) and 5(b) hereof; and provided further, however, that the Owner
shall not be obligated to execute (i) any Project Document which does not
contain the provisions for the benefit of the Owner referred to in subsection
3(a) hereof or (ii) any amendment, supplement or modification of the provisions
for the benefit of the Owner referred to in subsection 3(a) hereof.
4. Exercise of Rights under Project Documents. Subject to the Agent's
rights under the Reimbursement Agreement and the other Transaction Documents:
(a) (i) The Owner hereby agrees that except as otherwise
expressly provided herein or in the Lease to the contrary, and subject to the
terms of subsection 4(a)(ii) below, the Owner shall not (A) exercise any right
or remedy, take any action or give any consent, demand or notice, under or
pursuant to any Project Document or (B) modify, amend, supplement, cancel or
terminate, or consent to any modification, amendment, supplement, cancellation
or termination of, any Project Document, without first obtaining, in each
instance, the Company's consent thereto.
(ii) Notwithstanding the terms of subsection 4(a)(i)
above, the Owner may take any such action referred to in subsection 4(a)(i)
above without obtaining the Company's consent thereto if (A) (1) the Company
shall have withheld its consent to the taking of any such action or (2) the
Owner shall have made a reasonable good faith attempt to obtain the Company's
consent to the taking of any such action but shall have been unable to obtain
the Company's consent thereto and (B) it shall be necessary for the Owner to
take any such action (and, in the case of clause (2) above, to take such action
promptly) in order (1) for the Owner or any Individual Property not to be in
violation of any material applicable Legal Requirements, (2) to prevent a
material decrease in the value of any Individual Property or (3) to prevent a
default or event of default from occurring under the Indenture, the Lease, the
Reimbursement Agreement or any other Transaction Document; it being understood
and agreed, however, that the foregoing shall not impose any duty or obligation
upon the Owner to take any such action. Promptly after taking any such action
without the Company's consent as aforesaid, the Owner shall notify the Company
in writing of the taking of such action.
<PAGE>
(b) The Owner hereby agrees that (i) it shall send to the
Company, promptly upon receipt, or delivery thereof by the Owner, as the case
may be, each and every notice, demand, request and other document received or
sent by it under or pursuant to a Project Document; and (ii) to the extent that,
because the Company is not the named party in a Project Document, the Company
shall be unable to perform any act that the Company is permitted to perform,
take any action that the Company is permitted to take or exercise any right or
remedy that the Company is permitted to exercise, pursuant to Section 2 hereof,
then the Owner, at the sole cost and expense of the Company, shall promptly
perform such act, take such action, or exercise such right or remedy, as the
case may be, promptly after the Company shall so direct the Owner in writing;
provided, however, that the performance of such act, the taking of such action
or the exercise of such right or remedy shall not (A) cause the Owner or any
Individual Property to be in violation of any applicable Legal Requirement, (B)
result in a default or event of default under any Project Document, the
Indenture, the Lease, the Reimbursement Agreement or any other Transaction
Document or (C) result in a material decrease in the value of any Individual
Property.
(c) The Company agrees that it shall (i) send to the Owner,
promptly upon receipt, or delivery thereof by the Company, as the case may be,
each and every notice, demand, request and other document received or sent by it
under or pursuant to a Project Document and (ii) at its sole cost and expense,
perform all acts, take all actions and exercise all rights and remedies to the
extent that the failure to do so would result in, or could reasonably be
foreseen to result in, (A) the violation of or noncompliance with any Legal
Requirement applicable to any Individual Property, (B) a default or event of
default under any Project Document, the Indenture, the Lease, the Reimbursement
Agreement or any other Transaction Document or (C) a material decrease in the
value of any Individual Property.
5. Acquisition and Construction of the Individual Properties; Change
Orders.
(a) Each Individual Property shall be acquired or ground
leased and constructed pursuant to this Agreement and in accordance with the
Project Documents relating thereto.
(b) (i) Except as set forth in subparagraph 5(b)(ii) below, no
change order to any Applicable Construction Agreement shall be effective unless
same shall be consented to by the Owner and the Agent; provided, however, that
in the event the Owner shall not have granted or withheld its consent to any
such change order by the time the Agent grants its consent thereto, the Owner
shall be deemed to have consented to such change order upon the Agent's consent
thereto. Any request by the Company for change orders shall be accompanied by
such supporting documentation as the Owner and the Agent shall request
including, without limitation, the cost thereof. As a condition to obtaining the
requisite consents, the Company shall cause to be delivered to the Trustee the
amount described in the preceding sentence, which shall be deposited in the
Project Fund and disbursed as provided in the Indenture. The Agent and the Owner
shall not unreasonably withhold or delay their consent to change orders if the
same could not adversely affect the value of such Individual Property.
<PAGE>
(ii) Notwithstanding the foregoing, neither the Owner's
nor the Agent's consent shall be required for any change order unless the amount
of such change order, when added to the aggregate amount of all previous change
orders under the Applicable Construction Agreement, exceeds ten (10%) percent of
the total estimated project cost for the Applicable Project as set forth in the
budget delivered to the Owner and the Agent pursuant to subparagraph 6(d)
hereof.
6. Prerequisites to Construction. Prior to the commencement of work
with respect to any Applicable Project at an Individual Property, the Company
shall provide to the Owner and the Agent, and the Owner and the Agent shall have
approved in their reasonable judgment (it being understood and agreed, however,
that the Owner and the Agent shall be deemed to have approved any of the
following items in the event that they shall not have notified the Company of
any disapproval within three (3) Business Days after receipt of such item):
(a) a copy of the form Applicable Plans and Specifications (it
being understood and agreed that the actual Applicable Plans and Specifications
shall be delivered to the Owner and the Agent once they have been prepared) and
all Applicable Approvals then required;
(b) an appraisal of such Individual Property, prepared (in
accordance with FIRREA and all other regulatory requirements applicable to the
Agent) and certified by an independent MAI appraiser acceptable to the Owner and
the Agent, setting forth the estimated fair market value of the Individual
Property (i) on and as of the Applicable Completion Date (on an "as-completed"
basis in accordance with the Applicable Plans and Specifications), which shall
be no less than ninety (90%) percent of the anticipated Cost for such Applicable
Project and (ii) on and as of the Expiration Date;
(c) a certificate from an Authorized Representative of the
Company stating that the Allocable Costs for such Applicable Project will not
exceed the fair market value of such Individual Property as of the Final Project
Completion Date, as established by the appraisals obtained in accordance with
subsection 6(b) above; and
(d) a project budget for such Applicable Project, setting
forth in detailed form the types or classifications of work to be performed and
materials and supplies to be procured in connection with such Applicable Project
and the budgeted cost of each such item of work and materials and supplies.
7. Disbursements from Project Fund.
(a) Generally. Subject to the provisions below, disbursements
from the Project Fund shall be made to reimburse the Company or the Owner for
Costs of the Projects incurred prior to the date hereof and to pay certain Costs
of the Projects hereafter incurred; provided, however, that in no event shall
any funds be disbursed from the Project Fund for or in respect of the cost of
acquiring any Equipment, it being understood and agreed that all Equipment shall
be acquired by the Company with or out of the Company's own funds. Any
disbursements from the Project Fund for the payment of the Costs of the Projects
shall be made by the Trustee only upon the submission to the Trustee of a
Requisition on the form thereof annexed hereto as Exhibit A executed by
Authorized Representatives of the Company, the Owner and the Agent.
<PAGE>
(b) Equity Investment Account. In connection with the
submission of any Requisition hereunder, the Company shall determine whether the
amounts previously deposited in the Equity Investment Account within the Project
Fund will be in the Company's opinion sufficient to cover three percent (3%) of
the aggregate amount of Project Costs incurred or to be incurred by the Company
on or prior to the anticipated date of the Requisition next succeeding the
Requisition in respect of which such determination is being made and, if such
amounts are insufficient, the amount of such insufficiency (the "Anticipated
Equity Shortfall"). The Company shall notify the Owner of the Anticipated Equity
Shortfall (which notification may be made by means of a Requisition) and the
Owner shall cause its manager to notify and direct the Preferred Member (as
defined in the Operating Agreement) to make a Preferred Member Contribution (as
defined in the Operating Agreement) in an amount equal to such Anticipated
Equity Shortfall in accordance with the terms of the Operating Agreement.
(c) Land Acquisition Disbursements. Each Requisition for a
Land Acquisition Disbursement from the Project Fund shall be accompanied by the
following items for the Individual Property with respect to which such Land
Acquisition Disbursement is requested:
(i) a lender's title insurance binder issued by the Title
Company, in form and substance satisfactory to the Owner and the Agent, and in
an amount not less than the cost of such Individual Property, insuring that the
Applicable Mortgage is a valid first lien on such Individual Property subject
only to Permitted Encumbrances, together with proof of full payment of all fees,
charges and premiums therefor;
(ii) a current ALTA-ACSM location and boundary survey of
such Individual Property showing the dimensions and locations of all
improvements located thereon and showing such Individual Property to be free of
encroachments, overlaps and other survey defects, other than Permitted
Encumbrances, all prepared and sealed by a licensed surveyor satisfactory to the
Owner, the Agent and the Title Company and certified to the Title Company, the
Owner, the Agent, and counsel to each of them;
(iii) a current Phase I environmental report for such
Individual Property, prepared by an environmental firm acceptable to the Owner
and the Agent, satisfying the minimum standards set forth in ASTME 1527-94 (and,
if recommended in or indicated by the Phase I environmental report, a Phase II
environmental report, soil tests or other environmental reports or tests);
(iv) an affidavit of title in the customary form from the
Owner;
(v) evidence of insurance as required by the Lease,
together with proof of full payment of the first year's premiums;
(vi) a certification from an Authorized Representative of
the Company stating that all water, sewer and other utilities are available to
service the operation of such Individual Property; and
(vii) a certificate from an Authorized Representative of
the Company stating that (A) the representations and warranties of the Company
set forth in the Lease are true, correct and complete as of the date of the
certificate except for changes in the ordinary course of business, none of which
either alone or in conjunction with other changes materially adversely affects
<PAGE>
the Company, its business, or its ability to perform any of its obligations
hereunder, under the Lease or under the other Transaction Documents to which it
is a party; and (B) no Default or Event of Default exists under this Agreement
or under the Lease.
(d) Construction Disbursements. Each Requisition for a
Construction Disbursement from the Project Fund shall be accompanied by the
following items for the Individual Property with respect to which such
Construction Disbursement is requested:
(i) a certificate from an Authorized Representative of the
Company stating that (A) the representations and warranties of the Company set
forth in the Lease are true, correct and complete as of the date of the
certificate except for changes in the ordinary course of business, none of which
either alone or in conjunction with other changes materially adversely affects
the Company, its business, or its ability to perform any of its obligations
hereunder, under the Lease or under the other Transaction Documents to which it
is a party; (B) no Default or Event of Default exists under this Agreement or
under the Lease; (C) all Applicable Approvals then required in connection with
the work or services for which payment or reimbursement is requested have been
obtained and remain in full force and effect; (D) no written notice of any Lien,
right to Lien or attachment upon, or claim affecting the right to receive
payment of, any of the moneys payable under the Requisition has been received,
or if received, the Lien has been released or discharged or will be released or
discharged upon payment of the Requisition under arrangements satisfactory to
the Owner and the Agent; and (E) the Company knows of no reason why a final
certificate of occupancy will not be issued;
(ii) a certificate from an Authorized Representative of
the Company (A) as to the in-place value of the completed construction portion
of the Improvements and the Off-Site Improvements drawn in accordance with the
budget attached to the Applicable Construction Agreement and indicating the
amount and percentage of work completed by trade, (B) stating that the
Improvements and Off-Site Improvements are being completed in accordance with
the Applicable Plans and Specifications, and (C) stating that the required
percentage of retainage with respect to this and all prior Requisitions is in
accordance with the Applicable Construction Agreement;
(iii) [Intentionally Omitted];
(iv) a certificate from an Authorized Representative of
the Company stating that (A) the Company has obtained all Applicable Approvals
then required in connection with the construction of the Improvements and the
Off-Site Improvements at such Individual Property and (B) there is no fact,
circumstance or reason known to the Company, after due inquiry described in the
certificate, why, if the Improvements and the Off-Site Improvements are
constructed in accordance with the Applicable Plans and Specifications, (1) the
Improvements would not be entitled to a certificate of occupancy (or its
equivalent), (2) the Improvements would not be permitted to be occupied,
operated or used for their intended purpose and (3) all Applicable Approvals
thereafter required from Governmental Authorities would not be issued in the
normal course;
(v) evidence of the performance bonds and other similar
assurances required to be provided at such time under the Applicable
Construction Agreement;
<PAGE>
(vi) evidence of all Applicable Approvals then required to
commence construction of the Improvements and the Off-Site Improvements for
which payment is requested;
(vii) [Intentionally Omitted];
(viii) the Company's or the Contractors' affidavits (AIA
Form G702) satisfactory to the Owner and the Agent as to the status of
construction and the application of the moneys disbursed; and
(ix) any additional documents, surveys, financing statements,
affidavits or certificates of the Company, any Contractor or any other Person as
the Owner or the Agent in their discretion may reasonably require.
(e) Final Disbursements. Each Requisition for a Final
Disbursement from the Project Fund shall be accompanied by the following items
for the Individual Property with respect to which such Final Disbursement is
requested:
(i) a final certificate of occupancy for the Improvements
on such Individual Property, together with any other evidence that all work has
been approved and inspected by all Governmental Authorities having jurisdiction;
(ii) a final completion "as-built" survey of such
Individual Property showing the dimensions of the plot and the dimensions and
location of the Improvements, parking spaces, easements, if any, streets on
which such Individual Property fronts, and distance to and name of nearest
intersecting streets, prepared and sealed by the licensed surveyor referred to
in subsection 7(c)(ii) or any other licensed surveyor satisfactory to the Agent,
which survey shall be certified to the Owner, the Agent, the Title Company and
counsel to each of them;
(iii) a title insurance policy issued by the Title Company
insuring that the Applicable Mortgage is a first lien on such Individual
Property, subject only to Permitted Encumbrances, securing an amount equal to
the aggregate principal amount disbursed from the Project Fund for or with
respect to such Individual Property;
(iv) "as built" Applicable Plans and Specifications,
certified by the architect for the Applicable Project, together with a
certificate from such architect stating that the Improvements and Off-Site
Improvements have been constructed in accordance with the Applicable Plans and
Specifications and all Legal Requirements;
(v) a certificate from the appraiser who prepared the
appraisal submitted pursuant to subparagraph 6(b) hereof, dated as of the
Applicable Completion Date and addressed to the Owner and the Agent, which
confirms the conclusions reached in such appraisal with respect to the fair
market value of such Individual Property on and as of the Applicable Completion
Date and on and as of the Expiration Date.
(vi) a certificate signed by an Authorized Representative
of the Company confirmed by the Agent stating that, as of the Applicable
Completion Date, except for amounts retained by the Trustee at the Company's
direction for any Cost of the Projects not then due and payable or if due and
payable not then paid, (A) the Applicable Project has been completed, and (B)
all labor, services, materials and supplies used in the Applicable Project have
been paid for.
<PAGE>
8. Limitation on Liability of Owner.
(a) Anything in this Agreement to the contrary
notwithstanding, the liability of the Owner to the Company in the performance by
the Owner of its obligations under this Agreement and for any default by the
Owner hereunder shall be limited to the interest of the Owner in the Leased
Property, and the Company agrees to look solely to the Owner's interest in the
Leased Property for the recovery of any judgment against the Owner arising from
the Owner's breach of this Agreement, any Project Document, the Indenture, the
Lease, the Reimbursement Agreement or any other Transaction Document. No
covenant or agreement contained in this Agreement shall be deemed to be the
covenant or agreement of any present, past or future officer, director, manager,
shareholder, partner, agent or employee of the Owner in his or her individual
capacity, and neither the officers, directors, managers, shareholders, partners,
agents or employees of the Owner nor any person executing this Agreement for or
on behalf of the Owner shall be liable personally on this Agreement or be
subject to any personal liability or accountability by reason of any transaction
or activity related hereto, except for such party's gross negligence or willful
misconduct.
(b) The Owner shall have no responsibility to the Company or
any other Person for the completion of any Applicable Project, including the
Improvements or the Off-Site Improvements at or with respect to any Individual
Property or the acquisition and installation of any equipment in connection
therewith, and the Company agrees not to assert any claim against or institute
an action against the Owner if for any reason the same are not completed,
acquired or installed in accordance with the Project Documents.
9. Indemnification. The Company hereby agrees to and hereby does
indemnify, defend and hold harmless the Owner and its officers, directors,
shareholders, managers, partners, members, agents, attorneys and employees
(collectively, the "Owner Indemnitees") from and against (i) any loss, cost,
damage or expense (including, without limitation, reasonable attorneys' fees and
expenses) incurred or suffered by the Owner Indemnitees, or any of them, arising
from, or out of, any action taken or failed to be taken by the Company or its
officers, directors, agents and employees under or relating to this Agreement,
any Project Document, any Applicable Assignment Agreement, the Indenture, the
Lease, the Reimbursement Agreement or any other Transaction Document, including
without limitation the breach by the Company of the representations, warranties,
covenants or obligations of the Company in any Project Document and any
Applicable Assignment Agreement, and (ii) any and all actions, suits, claims,
proceedings, investigations, demands, assessments, audits, fines, judgments,
costs and other expenses (including, without limitation, reasonable attorneys'
fees and expenses) incident to any of the foregoing or to the successful
enforcement of this Section, except to the extent that the Owner Indemnitees
have incurred or suffered such loss, cost, damage, expense, actions, suits,
claims, proceedings, investigations, demands, assessments, audits, fines,
judgments, costs and other expenses by reason of their gross negligence or
willful misconduct. The provisions of this Section 9 shall survive the
termination or earlier expiration of this Agreement, the Lease, the Indenture or
the Reimbursement Agreement.
10. Notices. All notices required or permitted to be sent under this
Agreement shall comply with the "Notices" provision of the Lease.
11. Further Assurances and Corrective Instruments. The Owner and the
Company agree that they will, if necessary, execute, acknowledge and deliver,
such supplements hereto and such further instruments as may reasonably be
required for carrying out the expressed intention of this Agreement.
<PAGE>
12. Severability. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those to which it
is held invalid or unenforceable, shall not be affected thereby and all other
terms and provisions of this Agreement shall be valid and enforced to the
fullest extent permitted by Legal Requirements.
13. Interpretation.
(a) Whenever in this Agreement any words of obligation or duty
are used, such words or expressions shall have the same force and effect as
though made in the form of covenants.
(b) Words of any gender used in this Agreement shall be held
to include any other gender, and words in the singular number shall be held to
include the plural, when the context requires.
(c) This Agreement shall not be strictly construed either
against the Owner or the Company, regardless of whether any provision thereof
has been drafted by the Owner or the Company (or their respective attorneys).
(d) The headings and captions contained in this Agreement are
inserted for convenience of reference only, and are not to be deemed part of or
to be used in construing this Agreement.
(e) The covenants and agreements herein contained shall,
subject to the provisions of this Agreement, bind and inure to the benefit of
the Owner, its successors and assigns, and the Company, its successors and
permitted assigns except as otherwise provided herein.
(f) This Agreement has been executed and delivered in the
State of New York and shall be governed by and construed in accordance with the
internal laws of the State of New York, except to the extent that the internal
laws of any Applicable State shall mandatorily govern matters relating to real
property located in such Applicable State.
(g) The Owner has made no representations or promises with
respect to the Leased Property or any part thereof, except as expressly
contained herein or in any other Transaction Document.
14. Recording. This Agreement shall not be recorded, except that upon
the request of either party, the parties shall execute a short form memorandum
of this Agreement in recordable form. Such memorandum may be recorded in the
appropriate land records of any Applicable State and the Party desiring such
recordation shall pay all recording fees. Upon the expiration or earlier
termination of this Agreement, the Company shall execute and deliver to the
Owner, in recordable form, an instrument which terminates of record any
memorandum of this Agreement. The Company hereby appoints the Owner its
attorney-in-fact to execute such instrument on the Company's behalf. The
provisions of this Section 14 shall survive the expiration or sooner termination
of this Agreement.
15. Owner, Agent and Company Representatives. Whenever under the
provisions of this Agreement the approval of the Owner, the Agent or the Company
is required or the Owner, the Agent or the Company is required to take some
<PAGE>
action at the request of the other, such approval of such request shall be given
for the Owner, by an Authorized Representative of the Owner, for the Agent by an
Authorized Representative of the Agent, and for the Company, by an Authorized
Representative of the Company. The Owner, the Agent and the Company, as the case
may be, shall be authorized to rely upon any such approval or request.
16. Binding; Counterparts. This Agreement shall be binding upon the
parties hereto only when duly executed on behalf of both the Company and the
Owner together; provided, however, that each set of counterparts taken together
shall constitute an original.
17. Time is of the Essence. Time is of the essence with respect to this
Agreement and no covenant or obligation hereunder to be performed by the Company
may be waived except by the written consent of the Owner and the Agent and
waiver of any such covenant or obligation or a forbearance to invoke any remedy
on any occasion shall not constitute or be treated as a waiver of such covenant
or obligation or any other covenant or obligation as to any other occasion and
shall not preclude the Owner from invoking such remedy at any later time prior
to the Company's cure of the condition giving rise to such remedy. Each of the
Owner's rights hereunder is cumulative to its other rights hereunder and not
alternative thereto.
18. Receipt of Agreement. The Parties hereto each acknowledge receipt
of a signed, true and exact copy of this Agreement.
19. Unavoidable Delay. If either Party shall be delayed or prevented
from the performance of any act required by this Agreement by reason of acts of
God, strikes, lockouts, labor troubles, inability to procure materials, or where
the Company is barred or prevented, directly or indirectly, from proceeding with
the development otherwise permitted by a legal action instituted by any
Applicable State agency, political subdivision or other party to protect the
public health and welfare or by a directive or Order issued by any Applicable
State agency, political subdivision or Court of competent jurisdiction to
protect the public health or welfare, acts of war or other cause without fault
and beyond the reasonable control of the Party obligated, performance of such
act shall be excused for the period of the delay, and the period for the
performance of any such act shall be extended for a period equivalent to the
period of such delay.
20. Relation of Parties. Nothing in this Agreement shall be construed
to make the Parties hereto partner or joint venturers or, except as otherwise
expressly set forth herein, to render either party hereto liable for any
obligation of the other.
21. Entireties; Modifications.
(a) Except for the Transaction Documents, this Agreement
constitutes the entire agreement of the Parties hereto with respect to its
subject matter, and all prior agreements with respect thereto are merged herein.
(b) Any attempt hereafter made to change, modify, waive,
discharge or effect an abandonment of this Agreement in whole or in part shall
be void and ineffective unless in writing and signed by the Party against whom
enforcement of the change, modification, waiver, discharge or abandonment is
sought.
<PAGE>
22. Survival of Indemnification and Other Obligations. Regardless of
whether explicitly stated in any other provision of this Agreement, any
obligation of the Company to indemnify the Owner, the Owner Indemnitees, the
Trustee, the Agent or any other Person shall constitute Supplemental Rent under
the Lease, the payment of which shall survive the expiration or earlier
termination of this Agreement and the Lease.
23. Date for Identification Purposes. This Agreement has been dated
November 20, 1997 as a matter of convenience of reference only. This Agreement
shall not be effective and binding upon the Parties until the actual execution
and delivery hereof by the Owner and the Company.
24. Negotiation of this Agreement. This Agreement has been willingly
entered into by sophisticated commercial parties, each represented by
independent legal counsel.
25. Consent to Jurisdiction.
(a) The Company hereby irrevocably agrees that any legal
action or proceeding arising out of, relating to or based upon this Agreement,
any Project Document, any Applicable Assignment Agreement, the Indenture, the
Lease, the Reimbursement Agreement or any other Transaction Document may be
brought in the Courts of the State of New York or in the United States District
Court for the Southern District of New York, as the Owner may elect. By the
execution and delivery of this Agreement, the Company hereby irrevocably
accepts, consents and submits generally and unconditionally, for itself and with
respect to its properties, to the jurisdiction of any such Court in any such
action or proceeding to adjudicate any issues arising out of or related to this
Agreement, any Project Document, any Applicable Assignment Agreement, the
Indenture, the Lease, the Reimbursement Agreement or any other Transaction
Document and the enforcement of their respective terms. In the case of any such
action or proceeding brought in the Courts of the State of New York or in the
United States District Court for the Southern District of New York, the Company
hereby waives any defense it might have based on lack of subject matter
jurisdiction, lack of personal jurisdiction, improper venue, or forum non
conveniens and, in connection with or based upon any action or proceeding
initiated by the Company, any defense to a counterclaim or cross-claim based
upon the doctrine of lis alibi pendens.
(b) The Company hereby irrevocably designates, appoints and
empowers CT Corporation or its successor as its authorized agent (the "Service
of Process Agent") to accept and receive, for and on behalf of the Company and
its property, service of process in the State of New York on behalf of the
Company, when and as such legal actions or proceedings may be brought in the
Courts of the State of New York or of the United States District Court for the
Southern District of New York. Service of process out of any of the
aforementioned Courts upon the Company may be effected by the mailing of copies
thereof by regular mail and the mailing of copies thereof by certified mail,
return receipt requested or by a reputable overnight courier to CT Corporation
or such other address as the Service of Process Agent may designate in writing
to the Owner, such service to become effective upon the earlier of delivery
thereof to the Service of Process Agent as verified by the return receipt or the
courier or such other date provided by applicable rules governing the Courts of
the State of New York, the federal rules of civil procedure or other applicable
law. It is understood that a copy of said process served on the Service of
Process Agent is to be promptly forwarded by the Service of Process Agent to the
Company at its address set forth herein, but the failure of the Service of
<PAGE>
Process Agent to forward to the Company or of the Company to receive such copy
shall not affect in any way the effectiveness of service of said process on the
Service of Process Agent as the agent of the Company as described herein. In
addition, the Company irrevocably consents to the service of process out of any
of the aforementioned Courts in any such action or proceeding by the mailing of
copies thereof by a reputable overnight courier to the Company at its address
set forth herein or such other address as the Company may designate in writing
to the Owner, such service to become effective upon the earlier of delivery
thereof to the Company as verified by the courier or such other date provided by
applicable rules of court or other applicable law. Concurrently herewith, the
Company is executing and delivering to the Service of Process Agent (i) an
agreement entitled "appointment of agent - prepaid," thereby appointing the
Service of Process Agent as the Company's agent and (ii) a check payable to the
order of the Service of Process Agent in the required amount representing
payment in full of the Service of Process Agent's fee for serving as agent for
the entire Term of the Lease. The Company further agrees that it will not remove
the Service of Process Agent as agent, and any attempt to do so shall be void
and of no force and effect.
(c) Nothing herein contained shall affect the right of (i) the Owner to
commence legal proceedings or otherwise proceed against the Company in any other
jurisdiction or to serve process in any other manner permitted by applicable law
or (ii) the Company to commence legal proceedings or otherwise proceed against
the Owner in any other jurisdiction or to serve process in any other manner
permitted by applicable law.
26. Waiver of Trial By Jury. TO THE EXTENT NOT PROHIBITED BY APPLICABLE
LAW, THE COMPANY HEREBY WAIVES, AND THE OWNER IN ACCEPTING THIS AGREEMENT HEREBY
WAIVES, ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF, RELATING TO OR
BASED UPON THIS AGREEMENT, ANY PROJECT DOCUMENT, ANY APPLICABLE ASSIGNMENT
AGREEMENT, THE INDENTURE, THE LEASE, THE REIMBURSEMENT AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT. The Owner or the Company may file an original counterpart
or a copy of this Section 26 with any Court as written evidence of the consent
of the Owner and the Company to the waiver of their right to trial by jury.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date set forth on the first page hereof.
WITNESS: OWNER:
MOVIEPLEX REALTY LEASING,
L.L.C.
By: RANDOLPH, HUDSON & CO.,
INC., Manager
/s/Susan Forsyth By: /s/Roger J. Burns
- ---------------- ------------------
Susan Forsyth Name: Roger J. Burns
Assistant Secretary Title: Vice President
COMPANY:
ATTEST: CARMIKE CINEMAS, INC.
/s/Larry M. Adams By: /s/John O. Barwick III
- ----------------- ----------------------
Larry M. Adams Name: John O. Barwick III
Secretary Title: Vice President
EXHIBIT 22.0
List of Subsidiaries
First Tier
Matthews & Wright, Inc. (Delaware)
Snider, Williams & Co., Inc. (Delaware)
Randolph, Hudson & Co., Inc. (Delaware)
Eden Consulting, Inc. (New York)
Shaw Realty Company, Inc. (New York)
Burrows, Hayes Company, Inc. (New York)
Dover, Sussex Company, Inc. (New York)
Housing Capital Corporation (New York)
Randel, Palmer & Co., Inc. (New York)
Parker, Reld & Co., Inc. (New York)
McAdam, Taylor & Co., Inc. (New York)
Helmstar Funding, Inc. (Pennsylvania)
Ryan, Jones & Co., Inc. (New York)
Second Tier
Randolph, Hudson & Co., Inc. (99% investor)
Snider, Williams & Co., Inc. (1% investor)
Movieplex Realty Leasing, L.L.C. (New Jersey)
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM HELMSTAR
GROUP, INC. AND SUBSIDIARIES' CONSOLIDATED BALANCE SHEET AND CONSOLIDATED
STATEMENT OF OPERATIONS FOR THE YEAR PERIOD ENDED DECEMBER 31, 1997 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> DEC-31-1997
<CASH> 802,352
<SECURITIES> 78,409,796
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 348,693
<DEPRECIATION> 242,565
<TOTAL-ASSETS> 81,818,752
<CURRENT-LIABILITIES> 0
<BONDS> 72,750,000
0
0
<COMMON> 674,960
<OTHER-SE> 6,074,854
<TOTAL-LIABILITY-AND-EQUITY> 81,818,752
<SALES> 0
<TOTAL-REVENUES> 6,363,911
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 2,512,858
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 660,088
<INCOME-PRETAX> 3,190,965
<INCOME-TAX> 501,735
<INCOME-CONTINUING> 2,689,230
<DISCONTINUED> (986,570)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,702,660
<EPS-PRIMARY> .31
<EPS-DILUTED> .31
</TABLE>
