Common use of Financing Parameters Clause in Contracts

Financing Parameters. Notwithstanding anything contained herein to the contrary, each of the Manager and each or any of the members of the Whitehall Group, acting alone, shall have the right, power and authority, without the consent of the Management Committee or WCPT, from time to time (i) to cause the Company and its Subsidiaries to incur Covered Indebtedness and to mortgage, pledge, hypothecate or otherwise grant security interests in or with respect to the Company's and/or its Subsidiaries' assets including any or all of the Properties and/or the ownership interests in any one or more of the Subsidiaries, to secure such financings and re-financings and (ii) to execute, deliver and perform any and all agreements, instruments and other documents in the name and on behalf of the Company and/or its Subsidiaries and to do or take any other actions of any kind relating thereto, provided that: (i) the Members shall have no personal liability for the repayment of such Covered Indebtedness except that each Member (other than the Saracen Members) may be liable for (and shall execute any and all agreements or documents at the request of the Manager or a lender to evidence its liability for) the Standard Member Recourse Carveouts (provided that, except as set forth in Schedule 3.9A, each such Member shall be liable for the Standard Member Recourse Carveouts only to the extent of damages or losses suffered by such lender arising from or on account of such events that give rise to such applicable Standard Member Recourse Carveout) and (ii) neither WRP nor any Whitehall Fund shall have personal liability for the repayment of such Covered Indebtedness except for the Standard Parent Recourse Carveouts; provided that (1) unless one or more of the Whitehall Funds actually provides a guaranty with respect to a particular Standard Parent Recourse Carveout, WRP shall not be required to do so and (2) WRP and the Whitehall Funds shall be liable for the Standard Parent Recourse Carveouts only to the extent of damages or losses suffered by such lender arising from or on account of such events that give rise to such applicable Standard Parent Recourse Carveout; and provided further that any environmental indemnity not be recourse to WRP or any Whitehall Fund); (b) the Weighted Average Interest Rate of all Covered Indebtedness of the Company and its Subsidiaries taken together does not exceed LIBOR plus 400 basis points (4%) per annum (calculated quarterly based on the outstanding debt balances of the Company and its Subsidiaries as of the end of each calendar quarter); and (c) the aggregate Covered Indebtedness of the Company and its Subsidiaries will not exceed 70% of the Borrowing Base (calculated quarterly based on the outstanding debt balances of the Company and its Subsidiaries as of the end of each calendar quarter). For the avoidance of doubt, (i) any particular financing may, without the approval of WCPT or the Management Committee, deviate from the terms set forth in clauses (b) and (c) above as long as all of the financings, taken together, continue to comply with the Financing Parameters, (ii) WCPT may be required (and hereby agrees) to provide guarantees to a prospective lender with respect to Standard Member Recourse Carveouts (provided that the members of the Whitehall Group actually provide such a guarantee, WCPT shall not be required to do so), (iii) WRP may be required (and hereby agrees) to provide guarantees to a prospective lender with respect to Standard Parent Recourse Carveouts (provided that unless one or more of the Whitehall Funds actually provides such a guarantee, WRP shall not be required to do so and provided further that any environmental indemnity may only be recourse to the Company, the Subsidiaries, WCPT and/or the Whitehall Group and not to WRP or any Whitehall Fund), (iv) such financing may be cross-collateralized and cross-defaulted with other assets of the Company or its Subsidiaries within the same or related financings that are contemporaneously closed with each other (including a cross- collateralized facility that allows for additional advances in connection with the financing or re-financing of other assets of the Company or its Subsidiaries) , (v) such financing may be fully or partially recourse to the Company and/or any or all of its Subsidiaries and (vi) Manager may incur financing, including fixed rate financings, secured by any Credit Lease Property and such financing and assets will not be taken into account in determining compliance with the tests in paragraphs (b) and (c) of this Section 3.9 (it being agreed that Manager may only incur fixed rate financings in connection with a Section 1031 Transaction involving Credit Lease Properties). Notwithstanding the foregoing, in the event of a refinancing or repayment of debt (including a repayment of debt in connection with a Sale of a Property) that is then currently allocable to the Saracen Members that could result in a Saracen Debt Reduction Event, Manager will obtain a Tax Opinion. The foregoing tests in clauses (b) and (c) are incurrence tests and not maintenance tests, meaning that additional Covered Indebtedness may not be incurred if the incurrence would cause the tests in clauses (b) or (c) to be violated, but the failure of the Company to satisfy these tests for reasons other than the incurrence of Covered Indebtedness (e.g., the sale of an asset for less than its Allocated Value) shall not require the repayment of any Covered Indebtedness or other action by the Manager or the Company." SECTION 2.14. Section 4.4 of the Operating Agreement is hereby amended and restated by adding the following language at the end thereof: "Without limitation of, and in supplement to, the foregoing, the Manager may, in its sole discretion, retain ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or one or more of its Affiliates on behalf of the Company and/or its Subsidiaries in respect of debt financing transactions, and ▇▇▇▇▇▇▇, Sachs & Co. or one or more of its Affiliates shall be paid a fee for arranging such financing transactions in an amount not greater than 1% of gross proceeds for financings up to $150 million and 0.75% of the gross proceeds for financings in excess of $150 million."

Financing Parameters. Notwithstanding anything contained herein to the contrary, each of the Manager and each or any of the members of the Whitehall Group, acting alone, shall have the right, power and authority, without the consent of the Management Committee or WCPT, from time to time (i) to cause the Company and its Subsidiaries to incur Covered Indebtedness and to mortgage, pledge, hypothecate or otherwise grant security interests in or with respect to the Company's and/or its Subsidiaries' assets including any or all of the Properties and/or the ownership interests in any one or more of the Subsidiaries, to secure such financings and re-financings and (ii) to execute, deliver and perform any and all agreements, instruments and other documents in the name and on behalf of the Company and/or its Subsidiaries and to do or take any other actions of any kind relating thereto, provided that: (a) (i) the Members shall have no personal liability for the repayment of such Covered Indebtedness except that each Member (other than the Saracen Members) may be liable for (and shall execute any and all agreements or documents at the request of the Manager or a lender to evidence its liability for) the Standard Member Recourse Carveouts (provided that, except as set forth in Schedule 3.9A, each such Member shall be liable for the Standard Member Recourse Carveouts only to the extent of damages or losses suffered by such lender arising from or on account of such events that give rise to such applicable Standard Member Recourse Carveout) and (ii) neither WRP nor any Whitehall Fund shall have personal liability for the repayment of such Covered Indebtedness except for the Standard Parent Recourse Carveouts; provided that (1) unless one or more of the Whitehall Funds actually provides a guaranty with respect to a particular Standard Parent Recourse Carveout, WRP shall not be required to do so and (2) WRP and the Whitehall Funds shall be liable for the Standard Parent Recourse Carveouts only to the extent of damages or losses suffered by such lender arising from or on account of such events that give rise to such applicable Standard Parent Recourse Carveout; and provided further that any environmental indemnity not be recourse to WRP or any Whitehall Fund); (b) the Weighted Average Interest Rate of all Covered Indebtedness of the Company and its Subsidiaries taken together does not exceed LIBOR plus 400 basis points (4%) per annum (calculated quarterly based on the outstanding debt balances of the Company and its Subsidiaries as of the end of each calendar quarter); and (c) the aggregate Covered Indebtedness of the Company and its Subsidiaries will not exceed 70% of the Borrowing Base (calculated quarterly based on the outstanding debt balances of the Company and its Subsidiaries as of the end of each calendar quarter). For the avoidance of doubt, (i) any particular financing may, without the approval of WCPT or the Management Committee, deviate from the terms set forth in clauses (b) and (c) above as long as all of the financings, taken together, continue to comply with the Financing Parameters, (ii) WCPT may be required (and hereby agrees) to provide guarantees to a prospective lender with respect to Standard Member Recourse Carveouts (provided that the members of the Whitehall Group actually provide such a guarantee, WCPT shall not be required to do so), (iii) WRP may be required (and hereby agrees) to provide guarantees to a prospective lender with respect to Standard Parent Recourse Carveouts (provided that unless one or more of the Whitehall Funds actually provides such a guarantee, WRP shall not be required to do so and provided further that any environmental indemnity may only be recourse to the Company, the Subsidiaries, WCPT and/or the Whitehall Group and not to WRP or any Whitehall Fund), (iv) such financing may be cross-collateralized and cross-defaulted with other assets of the Company or its Subsidiaries within the same or related financings that are contemporaneously closed with each other (including a cross- collateralized facility that allows for additional advances in connection with the financing or re-financing of other assets of the Company or its Subsidiaries) , (v) such financing may be fully or partially recourse to the Company and/or any or all of its Subsidiaries and (vi) Manager may incur financing, including fixed rate financings, secured by any Credit Lease Property and such financing and assets will not be taken into account in determining compliance with the tests in paragraphs (b) and (c) of this Section 3.9 (it being agreed that Manager may only incur fixed rate financings in connection with a Section 1031 Transaction involving Credit Lease Properties). Notwithstanding the foregoing, in the event of a refinancing or repayment of debt (including a repayment of debt in connection with a Sale of a Property) that is then currently allocable to the Saracen Members that could result in a Saracen Debt Reduction Event, Manager will obtain a Tax Opinion. The foregoing tests in clauses (b) and (c) are incurrence tests and not maintenance tests, meaning that additional Covered Indebtedness may not be incurred if the incurrence would cause the tests in clauses (b) or (c) to be violated, but the failure of the Company to satisfy these tests for reasons other than the incurrence of Covered Indebtedness (e.g., the sale of an asset for less than its Allocated Value) shall not require the repayment of any Covered Indebtedness or other action by the Manager or the Company." SECTION Section 2.14. Section 4.4 of the Operating Agreement is hereby amended and restated by adding the following language at the end thereof: "Without limitation of, and in supplement to, the foregoing, the Manager may, in its sole discretion, retain ▇▇▇▇▇▇▇Goldman, ▇▇▇▇▇ Sachs & Co. or one or more of its Affiliates it▇ ▇▇▇iliates on behalf of the Company and/or its Subsidiaries in respect of debt financing transactions, and ▇▇▇▇▇▇▇Goldman, Sachs & Co. or one or more of its Affiliates it▇ ▇▇▇▇▇iates shall be paid a fee for arranging such financing transactions in an amount not greater than 1% of gross proceeds for financings up to $150 million and 0.75% of the gross proceeds for financings in excess of $150 million." Section 2.15. Section 5.2(a) of the Operating Agreement is hereby amended and restated to read in its entirety as follows: (a) If any of the Managing Members shall reasonably determine that funds are required for a Necessary Expenditure, or in the event of a Preferential Distribution Non-Payment (as defined in the Series A Terms), such Managing Member shall have the right to make a Mandatory Capital Call describing the amount and nature of the Necessary Expenditure or the aggregate amount of any payment default pursuant to the Series A Terms, in which event each of the Managing Members shall, within twenty (20) days after receipt of notice of such Mandatory Capital Call, fund a portion of the capital contribution required by such Mandatory Capital Call (which portion shall be equal to such Member's Funding Percentage multiplied by the amount of such Mandatory Capital Call). Notwithstanding anything to the contrary herein, except as provided in Section 5.2(f) and except for the payment of any Preferential Distribution Non- Payment (as defined in the Series A Terms), no Managing Member shall be required to contribute or lend any funds to the Company (and no Mandatory Capital Call for a Necessary Expenditure may be issued to such Member) pursuant to this Section 5.2 or otherwise (i) if such Member has fully funded its Capital Commitment (whether or not the other Members have fully funded their Capital Commitments), (ii) in response to a Capital Call made at any time after December 31, 2001 (irrespective of the amounts previously contributed) or (iii) at any time after an initial public offering of Shares by WCPT." Section 2.16. Section 5.2(b) of the Operating Agreement is hereby amended by inserting the words "or the Manager" after the words "Management Committee" appearing therein. Section 2.17. Section 5.2 of the Operating Agreement is hereby amended by adding the following paragraph (f) thereto: