Exhibit 10(af)
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AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of July 16, 2004
by and among
CHARTERMAC, As Parent
CHARTER MAC CORPORATION,
as Borrower
FLEET NATIONAL BANK,
as Agent
and
THE FINANCIAL INSTITUTIONS PARTY HERETO
AND THEIR ASSIGNEES UNDER SECTION 11.5,
as Lenders
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TABLE OF CONTENTS
Page
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Article I. Definitions.........................................................1
Section 1.1. Definitions..............................................1
Section 1.2. General; References to Times............................11
Article II. Credit Facility....................................................12
Section 2.1. The Loan................................................12
Section 2.2. Rates and Payment of Interest on the Loan...............12
Section 2.3. Number of Interest Periods..............................13
Section 2.4. Repayment of the Loan...................................13
Section 2.5. Prepayments.............................................13
Section 2.6. Continuation............................................14
Section 2.7. Conversion..............................................14
Section 2.8. Notes...................................................14
Article III. Payments, Fees and Other General Provisions........................15
Section 3.1. Payments................................................15
Section 3.2. Pro Rata Treatment......................................15
Section 3.3. Sharing of Payments, Etc................................15
Section 3.4. Minimum Amounts.........................................16
Section 3.5. Fees....................................................16
Section 3.6. Computations............................................16
Section 3.7. Usury...................................................16
Section 3.8. Agreement Regarding Interest and Charges................16
Section 3.9. Statements of Account...................................17
Section 3.10. Taxes...................................................17
Article IV. Yield Protection, Etc..............................................18
Section 4.1. Additional Costs; Capital Adequacy......................18
Section 4.2. Suspension of LIBOR Loans...............................19
Section 4.3. Illegality..............................................19
Section 4.4. Compensation............................................19
Section 4.5. Affected Lenders........................................20
Section 4.6. Treatment of Affected Loans.............................20
Section 4.7. Change of Lending Office................................20
Section 4.8. Assumptions Concerning Funding of LIBOR Loans...........21
Article V. Conditions Precedent...............................................21
Section 5.1. Documents...............................................21
Section 5.2. Other Conditions Precedent..............................22
Article VI. Representations and Warranties.....................................24
Section 6.1. Financial Information...................................24
Section 6.2. No Violations...........................................24
Section 6.3. Litigation..............................................24
Section 6.4. Good Title and No Liens.................................25
Section 6.5. Franchise, Patents, Copyrights, Etc.....................25
Section 6.6. Use of Proceeds.........................................25
Section 6.7. Entity Matters..........................................25
Section 6.8. Valid and Binding.......................................26
Section 6.9. Deferred Compensation and ERISA.........................26
Section 6.10. No Materially Adverse Contracts, Etc...................27
Section 6.11. Compliance With Other Instruments, Laws, Etc............27
Section 6.12. Tax Status..............................................27
Section 6.13. Holding Company and Investment Company Acts.............27
Section 6.14. Certain Transactions....................................27
Section 6.15. Loan Documents..........................................27
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Section 6.16. Regulations U and X.....................................28
Section 6.17. Solvency................................................28
Section 6.18. Conditions Satisfied....................................28
Section 6.19. No Material Change; No Default..........................28
Section 6.20. No Broker or Finder.....................................28
Section 6.21. Background Information and Certificates.................28
Article VII. Affirmative Covenants..............................................28
Section 7.1. Punctual Payment........................................28
Section 7.2. Maintenance of Office...................................29
Section 7.3. Organizational Number...................................29
Section 7.4. Records and Accounts....................................29
Section 7.5. Notices.................................................29
Section 7.6. Existence; Conduct of Business..........................29
Section 7.7. Insurance...............................................30
Section 7.8. Taxes and Trade Debt....................................30
Section 7.9. Compliance with Laws, Contracts, Licenses, and Permits..30
Section 7.10. Indemnification Against Payment of Brokers' Fees........30
Section 7.11. Fiscal Year.............................................31
Section 7.12. Place for Records; Inspection...........................31
Section 7.13. Costs and Expenses......................................31
Section 7.14. Replacement Documentation...............................31
Section 7.15. Further Assurances......................................32
Section 7.16. Parent Guaranty.........................................32
Section 7.17. Financial Information...................................32
Section 7.18. Exchange Listing........................................32
Article VIII. Negative Covenants.................................................32
Section 8.1. Liens...................................................32
Section 8.2. Merger; Ownership Interests; Sale of Assets.............32
Section 8.3. Loans and Advances......................................33
Section 8.4. Distributions...........................................33
Section 8.5. Affiliate Indebtedness..................................33
Section 8.6 Transaction Documents...................................33
Article IX. Default............................................................34
Section 9.1. Events of Default.......................................34
Section 9.2. Remedies Upon Event of Default..........................36
Section 9.3. Written Waivers.........................................36
Section 9.4. Allocation of Proceeds..................................36
Section 9.5. Performance by Agent....................................36
Section 9.6. Rights Cumulative.......................................37
Article X. The Agent..........................................................37
Section 10.1. Authorization and Action................................37
Section 10.2. Agent's Reliance, Etc...................................37
Section 10.3. Notice of Defaults......................................38
Section 10.4. Fleet as Lender.........................................38
Section 10.5. Approvals of Lenders....................................38
Section 10.6. Lender Credit Decision, Etc.............................39
Section 10.7. Indemnification of Agent................................39
Section 10.8. Successor Agent.........................................40
Article XI. Miscellaneous.....................................................40
Section 11.1. Notices.................................................40
Section 11.2. Expenses................................................41
Section 11.3. Setoff..................................................42
Section 11.4. Litigation; Jurisdiction; Other Matters; Waivers........42
Section 11.5. Successors and Assigns..................................43
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Section 11.6. Amendments..............................................44
Section 11.7. Nonliability of Agent and Lenders.......................45
Section 11.8. Confidentiality.........................................45
Section 11.9. Indemnification.........................................46
Section 11.10. Termination; Survival...................................47
Section 11.11. Severability of Provisions..............................47
Section 11.12. GOVERNING LAW...........................................47
Section 11.13. Counterparts............................................48
Section 11.14. Obligations with Respect to Subsidiaries................48
Section 11.15. Entire Agreement........................................48
Section 11.16. Construction............................................48
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SCHEDULES AND EXHIBITS
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SCHEDULE 6.3 Litigation
SCHEDULE 6.7(b)(i) Parent and Borrower Constituent Documents
SCHEDULE 6.7.(b)(ii) Taxpayer Identification and State Organizational Numbers
SCHEDULE 6.7.(b)(iii) Outstanding Options, Etc.
SCHEDULE 6.14 Certain Transactions
SCHEDULE 7.7 Insurance
EXHIBIT A Form of Assignment and Acceptance Agreement
EXHIBIT B Form of Notice of Continuation
EXHIBIT C Form of Notice of Conversion
EXHIBIT D Form of Note
EXHIBIT E Form of Certificate Regarding Transaction Documents
EXHIBIT F Form of Certificate Regarding CCLP Acquisition Letter of
Intent
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AMENDED AND RESTATED CREDIT AGREEMENT
-------------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT dated as of July 16, 2004 (this
"Agreement") by and among CHARTERMAC, a Delaware statutory trust (the "Parent"),
CHARTER MAC CORPORATION, a Delaware corporation (the "Borrower"), each of the
financial institutions initially a signatory hereto together with their
assignees pursuant to Section 11.5.(d), and FLEET NATIONAL BANK, a national
banking association, as Agent.
WHEREAS, the Borrower, Charter Mac (then known as Charter Municipal
Mortgage Acceptance Company), Wachovia Bank, National Association as Agent (in
such capacity, "Wachovia"), Wachovia Capital Markets, LLC as Lead
Arranger/Bookrunner, and certain financial institutions entered into a certain
Credit Agreement dated as of November 17, 2003 (the "Senior Wachovia Credit
Agreement"), with respect to which Fleet, in its individual capacity, is a
lender; and
WHEREAS, the Borrower, Charter Mac, and Wachovia Capital Investments, Inc.,
entered into a certain Credit Agreement dated as of November 17, 2003 (the
"Junior Wachovia Credit Agreement"); and
WHEREAS the Borrower has repaid in full all amounts outstanding under the
Junior Wachovia Credit Agreement, and the Junior Wachovia Credit Agreement has
been terminated; and
WHEREAS, Fleet, in its individual capacity, has acquired the interest in
the Senior Wachovia Credit Agreement not already owned by it; and
WHEREAS, Wachovia has resigned as Agent under the Senior Wachovia Credit
Agreement, and Fleet has succeeded Wachovia as Agent thereunder; and
WHEREAS, there is currently outstanding under the Senior Wachovia Credit
Agreement the aggregate principal amount of $100,000; and
WHEREAS, the Agent and the Lenders desire, on the terms and conditions set
forth herein, to consolidate the amounts outstanding under the Senior Wachovia
Credit Agreement and to make available to the Borrower additional advances under
the Senior Wachovia Credit Agreement which will result in a loan in the
aggregate principal amount of up to $91,000,000, and otherwise to amend and
restate the Senior Wachovia Credit Agreement in its entirety on the terms and
conditions contained herein,
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1. DEFINITIONS.
In addition to terms defined elsewhere herein, the following terms shall
have the following meanings for the purposes of this Agreement:
"ACQUISITION LINE FACILITY" means that certain Acquisition Loan Agreement
dated as of December 24, 2001 by and among Fleet, as agent for a syndicate of
lenders, such lenders, and the Borrower, as amended and in effect.
"ADDITIONAL COSTS" has the meaning given that term in Section 4.1.
"ADJUSTED LIBOR RATE" means for each Interest Period for any LIBOR Loan,
the rate per annum obtained by dividing (i) LIBOR for such Interest Period, by
(ii) an amount equal to the number one minus the maximum reserve percentage
(expressed as a decimal) applicable during such Interest Period under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System for determining the maximum reserve requirements (including,
without limitation, any basic, supplemental, marginal and emergency reserve
requirements) for Agent (or of any subsequent holder of a Note hereunder which
is subject to such reserve requirements) in respect of liabilities or assets
consisting of or including Eurocurrency liabilities (as such term is defined in
Regulation D of the Board of Governors of the Federal Reserve System) having a
term equal to the Interest Period.
"AFFILIATE" means, as to any Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with, such Person, and shall include (a) any beneficial holder of 10% or
more of any class of the then outstanding capital stock (or other shares of
beneficial interest or voting securities) of the specified Person, and (b) any
Person directly or indirectly possessing the power to direct or cause the
direction of the management or policies of the specified Person, whether through
the ownership of voting securities, by agreement, or otherwise.
"AGENT" means Fleet, as contractual representative for the Lenders under
the terms of this Agreement, and any of its successors.
"AGREEMENT DATE" means the date as of which this Agreement is dated.
"AGREEMENT RELATING TO AMENDED AND RESTATED CREDIT ENHANCEMENT UMBRELLA
AGREEMENT" means that certain Agreement Relating to Amended and Restated Credit
Enhancement Umbrella Agreement dated on or about the Agreement date among Capri
Acquisition, Inc., CCLP, Capri Holdings, LLC, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇, and the CCLP Term Loan Credit Enhancers.
"APPLICABLE LAW" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all governmental bodies and all
orders and decrees of all courts, tribunals and arbitrators.
"ASSIGNEE" has the meaning given that term in Section 11.5.(d).
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an Assignment and Acceptance
Agreement among a Lender, an Assignee and the Agent, substantially in the form
of EXHIBIT A.
"BASE RATE" means the per annum rate of interest equal to the greater of
(a) the Prime Rate plus one-half percent (0.5%) or (b) the Federal Funds Rate
plus one percent (1.0%). Any change in the Base Rate resulting from a change in
the Prime Rate or the Federal Funds Rate shall become effective as of 12:01 a.m.
on the Business Day on which each such change occurs.
"BASE RATE LOAN" means any portion of the Loan bearing interest at a rate
based on the Base Rate.
"BOND WAREHOUSING FACILITY" means that certain Tax-Exempt Bond Line of
Credit and Security Agreement dated as of March 26, 2003 by and among Fleet, as
agent for a syndicate of lenders, such lenders, and Issuer Trust, as amended and
in effect.
"BORROWER" has the meaning set forth in the introductory paragraph hereof
and shall include the Borrower's successors and permitted assigns.
"BUSINESS DAY" means (a) any day other than a Saturday, Sunday or other day
on which banks in Boston, Massachusetts or New York, New York are authorized or
required to close and (b) with reference to a LIBOR Loan, any such day that is
also a day on which dealings in Dollar deposits are carried out in the London
interbank market.
"CASH EQUIVALENTS" shall mean (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition ("GOVERNMENT OBLIGATIONS"), (ii)
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U.S. dollar denominated (or foreign currency fully hedged) time deposits,
certificates of deposit, Eurodollar time deposits and Eurodollar certificates of
deposit of (y) any domestic commercial bank of recognized standing having
capital and surplus in excess of $250,000,000 or (z) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof or
from ▇▇▇▇▇'▇ is at least P-1 or the equivalent thereof (any such bank being an
"Approved Bank"), in each case with maturities of not more than 364 days from
the date of acquisition, (iii) commercial paper and variable or fixed rate notes
rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent
thereof) or better by Moody's and maturing within twelve months of the date of
acquisition, (iv) repurchase agreements with a bank or trust company (including
a Lender) or a recognized securities dealer having capital and surplus in excess
of $500,000,000 for direct obligations issued by or fully guaranteed by the
United States of America, (v) obligations of any state of the United States or
any political subdivision thereof for the payment of the principal and
redemption price of and interest on which there shall have been irrevocably
deposited Government Obligations maturing as to principal and interest at times
and in amounts sufficient to provide such payment, (vi) auction preferred stock
rated in the highest short-term credit rating category by S&P or Moody's and
(vii) U.S. dollar denominated time and demand deposit accounts or money market
accounts with those domestic banks meeting the requirements of item (y) or (z)
of clause (ii) above and any other domestic commercial banks insured by the FDIC
with an aggregate balance not to exceed $100,000 in the aggregate at any time at
any such bank.
"CCA" means Capri Capital Advisors, LLC, a Delaware limited liability
company.
"CCA ACQUISITION" means the purchase by CCLP from Capital Associates Group
Inc. of the 49% of the membership interest in CCA owned by Capital Associates
Group Inc.
"CCA ACQUISITION AGREEMENT" means that certain purchase agreement by and
between CCLP and Capital Associates Group Inc. which sets forth, among other
things, the terms and conditions of the CCA Acquisition.
"CCLP" means Capri Capital Limited Partnership, a Delaware limited
partnership.
"CCLP ACQUISITION LETTER OF INTENT" means that certain letter of intent
dated as of July 16, 2004, among the Parent, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
III, and ▇▇▇▇▇ ▇. Fargo.
"CCLP CONTROL DATE" means that date, if any, as of which the Borrower or
any Affiliate of the Borrower, among them, hold interests in CCLP representing
greater than 50% of the aggregate equity ownership interests of CCLP.
"CCLP SECOND STEP LOANS" means, collectively, the loans to be made by CM
Investor pursuant to Sections 2.2, 2.5, and 2.6 of the CCLP Acquisition Letter
of Intent in accordance with and subject to the applicable provisions of the
CCLP Acquisition Letter of Intent.
"CCLP SECOND STEP TRANSACTIONS" means the transactions contemplated by
Section 2 of the CCLP Acquisition Letter of Intent, including the making of the
CCLP Second Step Loans by CM Investor.
"CCLP SECOND STEP LOANS DOCUMENTS" means the various documents evidencing
the CCLP Second Step Loans, each as in effect at the time of reference.
"CCLP SECOND STEP TRANSACTIONS DOCUMENTS" means the CCLP Acquisition Letter
of Intent and the various documents implementing or contemplated by the CCLP
Second Step Transactions (including the CCLP Second Step Loans Documents), each
as in effect at the time of reference.
"CCLP TERM LOAN" means the $55 million term loan made by the CCLP Term Loan
Banks to CCLP on November 19, 1999, as amended and in effect, evidenced by the
CCLP Term Loan Documents.
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"CCLP TERM LOAN ACQUISITION" means the acquisition by CM Investor of all of
the CCLP Term Loan Banks' right, title and interest in and to the CCLP Term
Loan, including, without limitation, the CCLP Term Loan Documents.
"CCLP TERM LOAN BANKS" means Bank One, N.A. and Comerica Bank.
"CCLP TERM LOAN CREDIT AGREEMENT" means that certain Credit Agreement by
and among CCLP, the CCLP Term Loan Banks, and Capri Acquisition, Inc.,
originally dated as of November 19, 1999, as amended and in effect.
"CCLP TERM LOAN CREDIT ENHANCEMENT" means the credit enhancement for the
CCLP Term Loan provided by the CCLP Term Loan Credit Enhancers pursuant to the
CCLP Term Credit Enhancement Loan Documents.
"CCLP TERM LOAN CREDIT ENHANCEMENT LOAN DOCUMENTS" means the documents,
instruments, and agreements executed and delivered in connection with the CCLP
Term Loan Credit Enhancement, including, without limitation, the CCLP Term Loan
Credit Enhancement Umbrella Agreement.
"CCLP TERM LOAN CREDIT ENHANCEMENT UMBRELLA AGREEMENT" means that certain
Amended and Restated Credit Enhancement Umbrella Agreement originally dated as
of November 19, 1999 by and among the CCLP Term Loan Credit Enhancers, CCLP,
Capri Acquisition, Inc., and Capri Holdings, LLC, as amended and in effect.
"CCLP TERM LOAN CREDIT ENHANCEMENT TERMINATION FEE" means the fee in the
amount of $14,500,000.00 required to be paid to the CCLP Term Loan Credit
Enhancers pursuant to the terms and conditions of the Agreement Relating to
Amended and Restated Credit Enhancement Umbrella Agreement.
"CCLP TERM LOAN CREDIT ENHANCERS" means, collectively, the Board of
Trustees of the General Retirement System of the City of Detroit and the Board
of Trustees of the Policeman and Firemen Retirement System of the City of
Detroit as the providers of credit enhancement for the CCLP Term Loan.
"CCLP TERM LOAN DOCUMENTS" means the documents, instruments, and agreements
executed and delivered in connection with the CCLP Term Loan, including, without
limitation, the CCLP Term Loan Credit Agreement.
"CHARTER MAC CAPITAL" means Charter Mac Capital Company, LLC, a Delaware
limited liability company.
"CHARTERMAC COVENANTS" means the covenants set forth in the Parent
Guaranty.
"CM INVESTOR" means CM Investor LLC, a Delaware limited liability company,
a wholly-owned Subsidiary of the Borrower.
"CLOSING" means the date as of which all of the conditions set forth in
Section 5.1 and 5.2 have been satisfied or waived in writing by the Agent.
"COLLATERAL" means Holding Trust's right, title and interest, in and to any
shares of Issuer Trust Common Shares from time to time and all related interests
and the Parent's right, title and interest, in and to any shares of Holding
Trust's Common Shares from time to time and all related interests.
"COMPLIANCE CERTIFICATE" has the meaning given to such term in Section
7.18(b).
"CONSTITUENT DOCUMENTS" means, with respect to any Person, its articles or
certificate of incorporation, governing instrument, trust agreement, charter,
resolutions, constitution, by-laws, partnership agreements, organizational
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documents, limited liability company agreements, or such other document as may
govern such entity's formation or organization.
"CONTINUE", "CONTINUATION" and "CONTINUED" each refers to the continuation
of a LIBOR Loan from one Interest Period to another Interest Period pursuant to
Section 2.6.
"CONTRACTUAL OBLIGATIONS" means, for any Person, any provision of any
security issued by that Person or of any material indenture, mortgage, deed of
trust, contract, undertaking, agreement, or other instrument to which such
Person is a party or by which it or any of its assets or properties is bound or
to which it or any of its assets or properties is subject.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to the conversion of
either a Base Rate Loan into a LIBOR Loan or a LIBOR Loan into a Base Rate Loan
pursuant to Section 2.7.
"CONVERTIBLE COMMUNITY REINVESTMENT ACT PREFERRED SHARES" means,
collectively, the (i) Convertible Community Reinvestment Act Preferred Shares
and (ii) Series A Convertible Community Reinvestment Act Preferred Shares.
"DEFAULT" means any of the events specified in Section 9.1., whether or not
there has been satisfied any requirement for the giving of notice, the lapse of
time, or both.
"DOLLARS" or "$" means the lawful currency of the United States of America.
"EFFECTIVE DATE" means the later of: (a) the Agreement Date; and (b) the
date on which all of the conditions precedent set forth in Sections 5.1. and
5.2. shall have been fulfilled or waived in writing by the Requisite Lenders.
"ELIGIBLE ASSIGNEE" means any Person who is: (i) currently a Lender; (ii) a
commercial bank, trust company, insurance company, investment bank or pension
fund organized under the laws of the United States of America, or any state
thereof, and having total assets in excess of $5,000,000,000; (iii) a savings
and loan association or savings bank organized under the laws of the United
States of America, or any state thereof, and having a tangible net worth of at
least $500,000,000; or (iv) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economic Cooperation and
Development, or a political subdivision of any such country, and having total
assets in excess of $10,000,000,000, provided that such bank is acting through a
branch or agency located in the United States of America. Notwithstanding the
foregoing, during any period in which an Event of Default shall have occurred
and be continuing under any of subsections (a), (e) or (f) of Section 9.1, the
term "Eligible Assignee" shall mean any Person that is not an individual.
"ENVIRONMENTAL LAWS" means any Applicable Law relating to environmental
protection or the manufacture, storage, disposal or clean-up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42 U.S.C.
ss. 7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C. ss. 1251 et
seq.; Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act, 42 U.S.C. ss. 6901 et seq.; Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. ss. 9601 et seq.; National
Environmental Policy Act, 42 U.S.C. ss. 4321 et seq.; regulations of the
Environmental Protection Agency and any applicable rule of common law and any
judicial interpretation thereof relating primarily to the environment or
Hazardous Materials.
"EQUITY INTERESTS" means, as to any Person, any and all shares, interests,
rights to purchase, warrants, options, participation or other equivalents of or
interest in (however designated) equity of such Person, including, without
limitation, any preferred interests, any limited or general partnership
interest, and any limited liability company membership interests.
"ERISA" and "ERISA PLAN" each as defined in Section 6.9.
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"EVENT OF DEFAULT" means any of the events specified in Section 9.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"EXCLUDED ISSUANCES" means issuances of debt or equity securities pursuant
to securitization transactions, issuances of Convertible Community Reinvestment
Act Preferred Shares, issuances of Issuer Trust Preferred Shares, issuances of
equity securities (including options therefore) by the Parent upon the exercise
of stock options granted pursuant to a stock option plan approved by the
Parent's Board of Directors, issuances of equity securities upon the conversion
or exchange of other debt or equity securities of the Parent outstanding as of
the Effective Date, borrowings under the Bond Warehousing Facility and overnight
equity transactions that are targeted to fund bond originations.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded upward
to the nearest 1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day, provided
that (a) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day, and
(b) if no such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate quoted to the Agent by
federal funds dealers selected by the Agent on such day on such transaction as
determined by the Agent.
"FEE LETTER" means that certain fee letter between the Borrower and Fleet,
dated on or about the date of this Agreement.
"FEES" means the fees and commissions provided for or referred to in
Section 3.5. and any other fees payable by the Borrower hereunder or under any
other Loan Document.
"FLEET" means Fleet National Bank, a national banking association, and its
successors.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" OR "GAAP" means generally
accepted accounting principles as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and the statements and pronouncements
of the Financial Accounting Standards Board, or in such other statements by such
other entity as may be in general use by significant segments of the accounting
profession, determined on the basis of such principles in effect on the date
hereof and consistent with those used in the preparation of the audited
financial statements of the Parent for the fiscal year ended December 31, 2003,
provided to the Agent and the Lenders.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, city, town, municipality, county, local or other political subdivision
thereof or thereto and any department, commission, board, bureau,
instrumentality, agency or other entity exercising executive, legislative,
judicial, regulatory or administrative functions.
"GOVERNMENTAL AUTHORIZATION" means any permit, license, authorization,
plan, directive, consent order, or consent decree of or from any Governmental
Authority.
"HAZARDOUS MATERIALS" means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws as "hazardous substances", "hazardous materials",
"hazardous wastes", "toxic substances" or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity,
"TCLP" toxicity or "EP toxicity"; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources; (c)
any flammable substances or explosives or any radioactive materials; (d)
asbestos in any form; and (e) electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million.
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"HOLDING TRUST" means CM Holding Trust, a Delaware statutory trust.
"HOLDING TRUST COMMON SHARES" means the common shares of Holding Trust, and
any securities into of for which such common shares hereafter may be converted
or exchanged.
"INDEBTEDNESS" means all obligations, contingent and otherwise, that in
accordance with Generally Accepted Accounting Principles should be classified
upon the consolidated balance sheet of the Parent and its Subsidiaries as
liabilities, or to which reference should be made by footnotes thereto,
including in any event and whether or not so classified: (a) all obligations for
borrowed money or other extensions of credit whether or not secured or
unsecured, absolute or contingent, including, without limitation, unmatured
reimbursement obligations with respect to letters of credit or guarantees issued
for the account of or on behalf of the Parent and its Subsidiaries and all
obligations representing the deferred purchase price of property; (b) all
obligations evidenced by bonds, notes, debentures or other similar instruments;
(c) all liabilities secured by any mortgage, pledge, security interest, lien,
charge, or other encumbrance existing on property owned or acquired subject
thereto, whether or not the liability secured thereby shall have been assumed;
(d) all guarantees, endorsements and other contingent obligations whether direct
or indirect in respect of indebtedness of others or otherwise, including any
obligations with respect to puts, swaps, and other similar undertakings, any
obligation to supply funds to or in any manner to invest in, directly or
indirectly, the debtor, to purchase indebtedness, or to assure the owner of
indebtedness against loss, through an agreement to purchase goods, supplies, or
services for the purpose of enabling the debtor to make payment of the
indebtedness held by such owner or otherwise, and the obligations to reimburse
the issuer in respect of any letters of credit; and (e) that portion of all
obligations arising under capital leases that is required to be capitalized on
the consolidated balance sheet of the Parent and its Subsidiaries; but
excluding, in all events obligations arising under operating leases and accounts
payable arising in the ordinary course of business.
"INTEREST PERIOD" means each period commencing on the date a LIBOR Loan is
made or the last day of the next preceding Interest Period for such LIBOR Loan
and ending 30, 60 or 90 days thereafter, as the Borrower may select in a Notice
of Continuation or Notice of Conversion, as the case may be, except that each
Interest Period that commences on the last Business Day of a calendar month
shall end on the last Business Day of the appropriate subsequent calendar month;
and
Notwithstanding the foregoing: (i) if any Interest Period would otherwise end
after the Termination Date, such Interest Period shall end on the Termination
Date; and (ii) each Interest Period that would otherwise end on a day which is
not a Business Day shall end on the next Business Day (or, if the next Business
Day falls in the next calendar month, then on the immediately preceding Business
Day).
"INTEREST RATE PROTECTION AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, or other
similar agreement or arrangement designed to protect any Person against
fluctuations in interest rates.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended.
"ISSUER TRUST" means Charter Mac Equity Issuer Trust, a Delaware statutory
trust.
"ISSUER TRUST AGREEMENT" means the Amended and Restated Trust Agreement
dated as of June 29, 2000, as amended from time to time, by and among the
managing trustees party thereto, the Parent, Wilmington Trust Company, as
Registered Trustee, and Related Charter, L.P., as Manager relating to Issuer
Trust.
"ISSUER TRUST COMMON SHARES" means the common shares of Issuer Trust, and
any securities into of for which such common shares hereafter may be converted
or exchanged.
"ISSUER TRUST PREFERRED SHARES" means Series A, Series A-1, Series A-2,
Series A-3, Series B, Series B-1, Series B-2, Series A-4-1, Series A-4-2, Series
B-3-1, and Series B-3-2 preferred shares issued by Issuer Trust, and any other
"preferred shares" issued by Issuer Trust after the date hereof in accordance
with, and as defined in, the Issuer Trust Agreement.
7
"JOINDER" means, as applicable, each of the joinders to this Agreement
respectively executed by Holding Trust and CM Investor.
"LEGAL REQUIREMENTS" means, all applicable federal, state, county and local
laws, by-laws, rules, regulations, codes and ordinances, and the requirements of
any governmental agency or authority having or claiming jurisdiction with
respect thereto, including, but not limited to, those applicable to zoning,
subdivision, building, health, fire, safety, sanitation, the protection of the
handicapped, and environmental matters and shall also include all orders and
directives of any court, governmental agency or authority having or claiming
jurisdiction with respect thereto.
"LENDER" means each financial institution from time to time party hereto as
a "Lender".
"LENDING OFFICE" means, for each Lender, the office of such Lender
specified as such on its signature page hereto or in the applicable Assignment
and Acceptance Agreement, or such other office of such Lender as such Lender may
notify the Agent in writing from time to time.
"LIBOR" means, as applicable to any LIBOR Loan for the purposes of
determining the applicable Adjusted LIBOR Rate, the rate per annum as determined
on the basis of the offered rates for deposits in U.S. dollars, for a period of
time comparable to the Interest Period applicable to such LIBOR Loan which
appears on the Telerate page 3750 as of 11:00 a.m. London time on the day that
is two Business Days preceding the first day of the Interest Period applicable
to such LIBOR Loan; provided, however, if the rate described above does not
appear on the Telerate System on any applicable interest determination date,
LIBOR shall be the rate (rounded upwards, if necessary, to the nearest one
hundred-thousandth of a percentage point) determined on the basis of the offered
rates for deposits in Dollars for a period of time comparable to the Interest
Period applicable to such LIBOR Loan which are offered by four major banks in
the London interbank market at approximately 11:00 a.m. London time, on the day
that is two (2) Business Days preceding the first day of such LIBOR Loan as
selected by the Agent. The principal London office of each of the four major
London banks will be requested to provide a quotation of its Dollar deposit
offered rate. If at least two (2) such quotations are provided, the rate for
that date will be the arithmetic mean of the quotations. If fewer than two (2)
quotations are provided as requested, the rate for that date will be determined
on the basis of the rates quoted for loans in Dollars to leading European banks
for a period of time comparable to the Interest Period applicable to such LIBOR
Loan offered by major banks in New York City at approximately 11:00 a.m. New
York City time, on the day that is two (2) Business Days preceding the first day
of such LIBOR Loan.
"LIBOR LOAN" means any portion of the Loan bearing interest at a rate based
on LIBOR.
"LIEN" means, any mortgage, deed of trust, lien, pledge, hypothecation,
assignment, security interest, or any other encumbrance, charge or transfer,
including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and mechanic's, materialmen's and other similar liens and
encumbrances.
"LOAN" means, collectively (a) any advances outstanding under the Senior
Wachovia Loan as of the Agreement Date, and (b) the loan made by Fleet to the
Borrower pursuant to Section 2.1, including the initial advance made pursuant to
Section 2.1(a), and, if made, the subsequent advances made pursuant to Sections
2.1(b) and 2.1(c). The aggregate amount of the Loan shall not exceed
$91,000,000. The Loan is not a revolving loan; amounts repaid may not be
reborrowed.
"LOAN DOCUMENTS" means singly and collectively, the Agreement, the Notes,
the Pledge and Security Agreements, the Parent Guaranty, and such other and
further instruments, documents, and agreements, whether now existing or
hereafter arising, by, between, and among the Parent, the Borrower, the Agent,
and the Lenders in any way relating to the foregoing, all as may hereafter be
amended, modified, extended, severed, assigned, substituted, renewed or restated
from time to time.
8
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"MORTGAGE WAREHOUSING FACILITY" means that certain Mortgage Warehousing
Credit and Security Agreement dated as of December 24, 2001 by and among Fleet,
as agent for a syndicate of lenders, such lenders, and PW Funding Inc., as
amended and in effect.
"NET PROCEEDS" means proceeds received by the Parent or any of its
Subsidiaries in cash from the disposition of any assets of the Parent or any of
its Subsidiaries (including, without limitation, payments as and when received
under notes or other debt securities received in connection with any such asset
disposition), net of: (a) the transaction costs of such asset disposition (which
shall include, without limitation, attorneys' fees, accountants' fees,
investment banking fees or brokers' commissions); (b) any tax liability arising
from such transaction; and (c) amounts applied to repayment of Indebtedness
secured by a Lien on the asset or property disposed of.
"NOTE" has the meaning given that term in Section 2.8.(a).
"NOTICE OF CONTINUATION" means a notice in the form of EXHIBIT B to be
delivered to the Agent pursuant to Section 2.6. evidencing the Borrower's
request for the Continuation of a LIBOR Loan.
"NOTICE OF CONVERSION" means a notice in the form of EXHIBIT C to be
delivered to the Agent pursuant to Section 2.7. evidencing the Borrower's
request for the Conversion of all or a portion of the Loan from one Type to
another Type.
"OBLIGATIONS" means, individually and collectively: (a) the aggregate
principal balance of, and all accrued and unpaid interest on, the Loan; and (b)
all other indebtedness, liabilities, obligations, covenants and duties of the
Borrower owing to the Agent or any Lender of every kind, nature and description,
under or in respect of this Agreement or any of the other Loan Documents,
including, without limitation, the Fees and indemnification obligations, whether
direct or indirect, absolute or contingent, due or not due, contractual or
tortious, liquidated or unliquidated, and whether or not evidenced by any
promissory note.
"PARENT" has the meaning set forth in the introductory paragraph hereof and
shall include Parent's successors and permitted assigns.
"PARENT CHANGE IN CONTROL" means a "Change of Control" as defined in the
Parent Guaranty.
"PARENT GUARANTY" means the Guaranty to be executed by the Parent on or
about the date hereof in form and content reasonably satisfactory to the Agent,
pursuant to which, among other things, the Parent unconditionally guaranties the
payment in full of the Obligations.
"PARTICIPANT" has the meaning given that term in Section 11.5.(c).
"PBGC" means the Pension Benefit Guaranty Corporation established pursuant
to Section 4002 of ERISA, or any successor thereto.
"PERSON" means an individual, corporation, partnership, limited liability
company, association, trust or unincorporated organization, or a government or
any agency or political subdivision thereof.
"PLEDGE AND SECURITY AGREEMENTS" means the Pledge and Security Agreements
to be executed by the Parent and Holding Trust on or about the date hereof in
form and content reasonably satisfactory to the Agent, pursuant to which, among
other things, the Parent and Holding Trust shall pledge and assign to the Agent
for the ratable benefit of the Lenders, and grant to the Agent for the ratable
benefit of the Lenders a first priority security interest in, the right, title
and interest of the Parent and Holding Trust, in and to any Holding Trust Common
Shares and Issuer Trust Common Shares, respectively, and all related interests.
9
"POST-DEFAULT RATE" means, in respect of any principal of any Loan or any
other Obligation that is not paid when due (whether at stated maturity, by
acceleration, by optional or mandatory prepayment or otherwise), a rate per
annum equal to four percent (4.0%) plus the rate of interest provided for in
Section 2.2(a)(i), as in effect from time to time.
"PRIME RATE" means the variable per annum rate of interest so designated
from time to time by Fleet as its prime rate. The Prime Rate is a reference rate
and does not necessarily represent the lowest or best rate being charged to any
customer
"PRINCIPAL OFFICE" means the office of the Agent located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other office of the Agent as the
Agent may designate from time to time.
"PWF" means PWF Funding Inc., a Delaware corporation.
"PWF COVENANTS" has the meaning given to such term in the loan agreement
evidencing the Acquisition Facility.
"PWF SUBSIDIARIES" means any Subsidiaries created by PWF in accordance with
the provisions of Section 7.17 of the loan agreement evidencing the Mortgage
Warehousing Facility.
"RCC TAX CREDIT FACILITY" means that certain Seventh Amended and Restated
Loan Agreement dates as of November 17, 2003 by and among RCC Credit Facility,
L.L.C., a Delaware limited liability company, as borrower, and Related Capital
Company LLC, a Delaware limited liability company and the Borrower, among
others, as guarantors, and Fleet, as agent for a syndicate of lenders, such
lenders, as amended and in effect.
"RATABLE SHARE" means as to each Lender at the time of determination
thereof, the ratio, expressed as a percentage, of (a) the principal amount of
the Loan owing to such Lender to (b) the aggregate principal amount of the Loan
outstanding.
"REGISTER" has the meaning given that term in Section 11.5.(e).
"REGULATORY CHANGE" means, with respect to any Lender, any change effective
after the Agreement Date in Applicable Law (including without limitation,
Regulation D of the Board of Governors of the Federal Reserve System) or the
adoption or making after such date of any interpretation, directive or request
applying to a class of banks, including such Lender, of or under any Applicable
Law (whether or not having the force of law and whether or not failure to comply
therewith would be unlawful) by any Governmental Authority or monetary authority
charged with the interpretation or administration thereof or compliance by any
Lender with any request or directive regarding capital adequacy.
"REIMBURSEMENT AGREEMENT" means that certain Amended and Restated
Reimbursement Agreement dated as of March 31, 2003 by and among Fleet, as Agent
for a syndicate of Participants, such Participants, Issuer Trust and the Parent,
as amended and in effect.
"REQUISITE LENDERS" means, as of any date, Lenders holding Ratable Shares
of at least 66 2/3% of the Loan.
"RFC LOAN" means that certain Term Loan and Security Agreement dated August
15, 2000, by and among Capri Capital Finance, LLC, a Delaware limited liability
company and CCA, as borrowers, and Residential Funding Corporation, as lender.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time, together with all rules and regulations issued thereunder.
10
"SOLVENT" means, as to any Person at any time, that (a) the fair value of
the property of such Person is greater than the amount of such Person's
liabilities (including disputed, contingent and unliquidated liabilities) as
such value is established and liabilities evaluated for purposes of Section
101(31) of the Bankruptcy Code and, in the alternative, for purposes of the
Uniform Fraudulent Transfer Act; (b) the present fair saleable value of the
property of such Person is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become absolute and
matured; (c) such Person is able to realize upon its property and pay its debts
and other liabilities (including disputed, contingent and unliquidated
liabilities) as they mature in the normal course of business; (d) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature; and (e) such Person is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which such Person's
property would constitute unreasonably small capital.
"S&P" means Standard & Poor's Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and its successors.
"SUBSIDIARY" means, as to any Person (a) any corporation more than 50% of
whose stock of any class or classes having by the terms thereof ordinary voting
power to elect a majority of the directors of such corporation (irrespective of
whether or not at the time stock of any class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) is at the time owned by such Person and/or one or more Subsidiaries
of such Person, and (b) any partnership, limited liability company, association,
joint venture, or other entity in which such Person and/or one or more
Subsidiaries of such Person has more than a 50% Equity Interest at the time.
"TAXES" has the meaning given that term in Section 3.10.
"TERMINATION DATE" means date that is 12 months after the Agreement Date,
unless accelerated pursuant to the terms hereof or extended pursuant to Section
2.4(b).
"TRANSACTION AGREEMENT" means that certain Transaction Agreement dated on
or about the Agreement date among the Borrower, CCLP, Capri Acquisition, Inc.,
and Capri Holdings, LLC.
"TRANSACTION DOCUMENTS" has the meaning given that term in the Transaction
Agreement.
"TYPE" with respect to the Loan, refers to whether all or a portion of the
Loan is a LIBOR Loan or Base Rate Loan.
SECTION 1.2. GENERAL; REFERENCES TO TIMES.
Unless otherwise indicated, all accounting terms, ratios and measurements
shall be interpreted or determined in accordance with GAAP in effect as of the
Agreement Date. References in this Agreement to "Sections", "Articles",
"Exhibits" and "Schedules" are to sections, articles, exhibits and schedules
herein and hereto unless otherwise indicated. References in this Agreement to
any document, instrument or agreement (a) shall include all exhibits, schedules
and other attachments thereto, (b) shall include all documents, instruments or
agreements issued or executed in replacement thereof, to the extent permitted
hereby and (c) shall mean such document, instrument or agreement, or replacement
or predecessor thereto, as amended, supplemented, restated or otherwise modified
as of the date of this Agreement and from time to time thereafter to the extent
not prohibited hereby and in effect at any given time. Wherever from the context
it appears appropriate, each term stated in either the singular or plural shall
include the singular and plural, and pronouns stated in the masculine, feminine
or neuter gender shall include the masculine, the feminine and the neuter.
Unless explicitly set forth to the contrary, a reference to "Subsidiary" means a
Subsidiary of the Borrower or a Subsidiary of such Subsidiary and a reference to
an "Affiliate" means a reference to an Affiliate of the Borrower. Titles and
captions of Articles, Sections, subsections and clauses in this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement. Unless otherwise indicated, all references to time are references to
Boston, Massachusetts time.
11
ARTICLE II. CREDIT FACILITY
SECTION 2.1. THE LOAN.
(a) INITIAL ADVANCE. Subject to the terms and conditions hereof, Fleet
agrees to make a term loan advance to the Borrower on the Effective Date in an
amount equal to the difference between (i) $73,000,000, and (ii) the amounts
already outstanding hereunder on the Effective Date, such advance to be used
solely for the purposes specified in Section 6.6, other than for an advance by
CM Investor for the CCA Acquisition.
(b) CCA ACQUISITION ADVANCE. Subject to the terms and conditions hereof,
subsequent to the Effective Date but on or before August 1, 2004, the Borrower
shall have the right to request that Fleet make an additional advance (the "CCA
Acquisition Advance") of an amount of up to $12,000,000, to be used by the
Borrower solely to make a capital contribution to CM Investor for the purpose of
making an advance to be used solely for the purpose of paying the purchase price
to consummate the CCA Acquisition. Such request shall be made by delivering a
written notice to the Agent at least one (1) Business Day prior to the requested
date for such advance and shall state the requested date for such advance.
(c) CCLP SECOND STEP LOANS ADVANCE. Subject to the terms and conditions
hereof, subsequent to the Effective Date but on or before January 15, 2005, the
Borrower shall have the right to request that the Lenders make an additional
advance (the "CCLP Second Step Loans Advance") of an amount of up to $6,000,000,
to be used by the Borrower to make a capital contribution to CM Investor to be
used solely to make the CCLP Second Step Loans. Such request shall be made by
delivering a written notice to the Agent at least one (1) Business Day prior to
the requested date for such advance and shall state the requested date for such
advance.
SECTION 2.2. RATES AND PAYMENT OF INTEREST ON THE LOAN.
(a) RATES. The Borrower promises to pay to the Agent for the account of
each Lender interest on the unpaid principal amount of the Loan for the period
from and including the Effective Date to but excluding the date the Loan shall
be paid in full, at the following per annum rates:
(i) during such periods as the Loan or portion thereof is a Base Rate
Loan, at the Prime Rate (as in effect from time to time) for the Loan or
such portion; and
(ii) during such periods as such Loan or portion thereof is a LIBOR
Loan, at the Adjusted LIBOR Rate plus 1.65% per annum for the Loan or such
portion for the Interest Period therefor.
Notwithstanding the foregoing, during the continuance of an Event of Default,
the Borrower shall pay to the Agent for the account of each Lender interest at
the Post-Default Rate on the outstanding principal amount of the Loan and on any
other amount payable by the Borrower hereunder or under the Note held by such
Lender to or for the account of such Lender (including without limitation,
accrued but unpaid interest to the extent permitted under Applicable Law).
(b) PAYMENT OF INTEREST. Accrued interest on the Loan shall be payable (i)
in the case of a Base Rate Loan, monthly in arrears on the first day of each
calendar month, (ii) in the case of a LIBOR Loan, on the last day of each
Interest Period, and (iii) upon the payment, prepayment or Continuation thereof
or the Conversion of the Loan or portion thereof to a Loan or portion thereof of
another Type (but only on the principal amount so paid, prepaid, Continued or
Converted). Interest payable at the Post-Default Rate shall be payable from time
to time on demand. Promptly after the determination of any interest rate
provided for herein or any change therein, the Agent shall give notice thereof
to the Lenders to which such interest is payable and to the Borrower. All
determinations by the Agent of an interest rate hereunder shall be conclusive
and binding on the Lenders and the Borrower for all purposes, absent manifest
error.
12
SECTION 2.3. NUMBER OF INTEREST PERIODS.
There may be no more than 3 different Interest Periods for LIBOR Loans
outstanding at the same time (for which purpose Interest Periods described in
different lettered clauses of the definition of the term "Interest Period" shall
be deemed to be different Interest Periods even if they are coterminous).
SECTION 2.4. REPAYMENT OF THE LOAN.
(a) INITIAL TERMINATION DATE. The Borrower shall repay the entire
outstanding principal amount of, and all accrued but unpaid interest on, the
Loan on the Termination Date.
(b) EXTENSION OPTION. The Borrower shall have one option (the "Extension
Option") to extend the Termination Date for a period of three (3) months (the
"Extension Period"). Subject to the conditions set forth below, the Borrower may
exercise the Extension Option by delivering a written notice to the Agent not
more than sixty (60) days or less than thirty (30) days prior to the Termination
Date (a "Notice to Extend"), stating that the Borrower has elected to extend the
Termination Date for a period of three (3) months. The Borrower's delivery of
the Notice to Extend shall be irrevocable. The Borrower's right to exercise the
Extension Option shall be subject to the following terms and conditions: (i) no
Event of Default shall have occurred and be continuing either on the date the
Borrower delivers the Notice to Extend to the Agent or on the date this
Agreement otherwise would have terminated, (ii) simultaneously with the delivery
of the Notice to Extend to the Agent, the Borrower shall have paid to the Agent,
for the ratable benefit of the Lenders, an extension fee in an amount equal to
0.0625% (6.25 basis points) multiplied by the outstanding principal amount of
the Loan as of the date of the Notice to Extend, (iii) the Parent shall be in
compliance with the CharterMac Covenants, and (iv) the outstanding principal
amount of the Loan as of the date of the delivery of the Notice to Extend shall
not exceed $40,000,000. In the event that all of the terms and conditions to the
Borrower's right to exercise the Extension Option are met (including, without
limitation, the timely delivery of the Notice to Extend), the Termination Date
shall be extended to the final day of the Extension Period.
SECTION 2.5. PREPAYMENTS.
(a) OPTIONAL. Subject to Sections 3.5(b) and 4.4, the Borrower may prepay
all or a portion of the Loan at any time. The Borrower shall give the Agent at
least one Business Day's prior written notice of the prepayment of the Loan. All
optional prepayments of the principal of the Loan shall be accompanied by the
payment of all accrued but unpaid interest on the Loan to the date of prepayment
and the prepayment fees in accordance with Section 3.5(b). Amounts prepaid in
respect of the Loan may not be reborrowed.
(b) MANDATORY.
---------
(i) PREPAYMENTS FROM EQUITY OFFERINGS/ISSUANCE OF INDEBTEDNESS. In the
event that at any time after the Effective Date, the Parent issues new
Equity Interests or debt securities (other than the Excluded Issuances) or
receives an additional capital contribution in respect of existing Equity
Interests, no later than the third Business Day following the date of
receipt of the proceeds from such issuance, the Parent shall apply such
proceeds, net of underwriting discounts and commissions and other
reasonable costs associated therewith, in prepayment of the Loan as
follows: (x) if such issuance of Equity Interests or receipt of capital
contributions occurs prior to the earlier of January 15, 2005 and the CCLP
Control Date, then an amount equal to 50% of such net proceeds shall be
applied to prepayment of the Loan until the outstanding principal amount
thereof does not exceed $50,000,000; and (y) if such issuance of Equity
Interests or receipt of capital contributions occurs on or after the
earlier of January 15, 2005 and the CCLP Control Date, then an amount equal
to 100% of such net proceeds shall be applied to prepayment of the Loan.
(ii) PREPAYMENTS RECEIVED FROM CCLP. In the event that CCLP or its
Affiliates prepays any principal amounts due from time to time to the
Borrower under the Transaction Documents or the CCLP Second Step Loans
Documents using the proceeds of a transaction (or series of transactions)
13
other than the transactions with the Parent and its Subsidiaries
contemplated by the CCLP Acquisition Letter of Intent, the Borrower shall
prepay a like amount of principal of the Loan.
SECTION 2.6. CONTINUATION.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, with respect to any LIBOR
Loan, elect to maintain such LIBOR Loan as a LIBOR Loan by selecting a new
Interest Period for such LIBOR Loan. Each new Interest Period selected under
this Section shall commence on the last day of the immediately preceding
Interest Period. Each selection of a new Interest Period shall be made by the
Borrower giving to the Agent a Notice of Continuation not later than 11:00 a.m.
on the third Business Day prior to the date of any such Continuation. Such
notice by the Borrower of a Continuation shall be by telephone or telecopy,
confirmed promptly thereafter in writing if by telephone, in the form of a
Notice of Continuation, specifying (a) the proposed date of such Continuation,
(b) the LIBOR Loans and portions thereof subject to such Continuation and (c)
the duration of the selected Interest Period, all of which shall be specified in
such manner as is necessary to comply with all limitations on LIBOR Loans
outstanding hereunder. Each Notice of Continuation shall be irrevocable by and
binding on the Borrower once given. Promptly after receipt of a Notice of
Continuation, the Agent shall notify each Lender by telecopy, or other similar
form of transmission, of the proposed Continuation. If the Borrower shall fail
to select in a timely manner a new Interest Period for any LIBOR Loan in
accordance with this Section, or if a Default or Event of Default shall have
occurred and be continuing, such LIBOR Loan will automatically, on the last day
of the current Interest Period therefor, Convert into a Base Rate Loan
notwithstanding the first sentence of Section 2.7. or the Borrower's failure to
comply with any of the terms of such Section.
SECTION 2.7. CONVERSION.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, upon the Borrower's giving of
a Notice of Conversion to the Agent, Convert all or a portion of the Loan into
another Type. Subject to Section 4.4. hereof, any Conversion of a LIBOR Loan
into a Base Rate Loan may be made by the Borrower at any time. Upon Conversion
of a Base Rate Loan into a LIBOR Loan, the Borrower shall pay accrued interest
to the date of Conversion on the principal amount so Converted. Each such Notice
of Conversion shall be given not later than 11:00 a.m. on the Business Day prior
to the date of any proposed Conversion into Base Rate Loans and on the third
Business Day prior to the date of any proposed Conversion into LIBOR Loans.
Promptly after receipt of a Notice of Conversion, the Agent shall notify each
Lender by telecopy, or other similar form of transmission, of the proposed
Conversion. Subject to the restrictions specified above, each Notice of
Conversion shall be by telephone (confirmed promptly thereafter in writing) or
telecopy in the form of a Notice of Conversion specifying (a) the requested date
of such Conversion, (b) the Type to be Converted, (c) the portion of such Type
to be Converted, (d) the Type to be Converted into and (e) if such Conversion is
into a LIBOR Loan, the requested duration of the Interest Period of such LIBOR
Loan. Each Notice of Conversion shall be irrevocable by and binding on the
Borrower once given.
SECTION 2.8. NOTES.
(a) NOTES. The Loan shall, in addition to this Agreement, also be evidenced
by a promissory note of the Borrower substantially in the form of EXHIBIT D
(each a "Note"), payable to the order of each Lender in a principal amount equal
to such Lender's Ratable Share of the Loan and otherwise duly completed. The
failure of a Lender to record such entries shall in no way affect the Borrower's
obligations to such Lender hereunder.
(b) RECORDS. The date, amount, interest rate, Type and duration of Interest
Periods (if applicable) of each Lender's Ratable Share of the Loan, and each
payment made on account of the principal thereof, shall be recorded by such
Lender on its books and such entries shall be binding on the Borrower absent
manifest error.
(c) LOST, STOLEN, DESTROYED OR MUTILATED NOTES. Upon receipt by the
Borrower of (i) written notice from a Lender that a Note of such Lender has been
lost, stolen, destroyed or mutilated, and (ii) (A) in the case of loss, theft or
destruction, an unsecured agreement of indemnity from such Lender in form
reasonably satisfactory to the Borrower, or (B) in the case of mutilation, upon
surrender and cancellation of such Note, the Borrower shall at its own expense
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execute and deliver to such Lender a new Note dated the date of such lost,
stolen, destroyed or mutilated Note.
SECTION 2.9 LATE CHARGES.
The Borrower shall pay, upon billing therefor, a "Late Charge" equal to
five percent (5%) of the amount of any payment of principal, other than
principal due at the Termination Date, interest, or both, which is not paid
within ten (10) days of the due date thereof. Late Charges: (a) are payable in
addition to, and not in limitation of, the Post-Default Rate, (b) are intended
to compensate the Lenders for administrative and processing costs incident to
late payments, (c) are not interest, and (d) shall not be subject to refund or
rebate or credited against any other amount due.
ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
SECTION 3.1. PAYMENTS.
Except to the extent otherwise provided herein, all payments of principal,
interest and other amounts to be made by the Borrower under this Agreement or
any other Loan Document shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Agent at its Principal
Office, not later than 2:00 p.m. on the date on which such payment shall become
due (each such payment made after such time on such due date to be deemed to
have been made on the next succeeding Business Day). Subject to Sections 3.2.
and 3.3., the Agent, or any Lender for whose account any such payment is made,
may (but shall not be obligated to) debit the amount of any such payment which
is not made by such time from any special or general deposit account of the
Borrower with the Agent or such Lender, as the case may be (with notice to the
Borrower, the other Lenders and the Agent). The Borrower shall, at the time of
making each payment under this Agreement or any Note, specify to the Agent the
amounts payable by the Borrower hereunder to which such payment is to be
applied. Each payment received by the Agent for the account of a Lender under
this Agreement or any Note shall be paid to such Lender at the applicable
Lending Office of such Lender no later than 5:00 p.m. on the date of receipt. If
the Agent fails to pay such amount to a Lender as provided in the previous
sentence, the Agent shall pay interest on such amount until paid at a rate per
annum equal to the Federal Funds Rate from time to time in effect. If the due
date of any payment under this Agreement or any other Loan Document would
otherwise fall on a day which is not a Business Day such date shall be extended
to the next succeeding Business Day and interest shall be payable for the period
of such extension.
SECTION 3.2. PRO RATA TREATMENT.
Except to the extent otherwise provided herein: (a) each payment or
prepayment of principal of the Loan by or on behalf of the Borrower shall be
made for the account of the Lenders in accordance with their respective Ratable
Shares of the Loan; (b) each payment of interest on the Loan by or on behalf of
the Borrower shall be made for the account of the Lenders in accordance with
their respective Ratable Shares of the Loan; and (c) the Conversion and
Continuation of all or a portion of the Loan (other than Conversions provided
for by Section 4.6.) shall be made in accordance with Lenders' Ratable Share of
the Loan, and the then current Interest Period for each Lender's portion of each
particular Type of the Loan shall be coterminous.
SECTION 3.3. SHARING OF PAYMENTS, ETC.
If a Lender shall obtain payment of any principal of, or interest on, its
Ratable Share of the Loan, or shall obtain payment on any other Obligation owing
by the Borrower through the exercise of any right of set-off, banker's lien or
counterclaim or similar right or otherwise or through voluntary prepayments
directly to a Lender or other payments made by the Borrower to a Lender not in
accordance with the terms of this Agreement and such payment should be
distributed to the Lenders pro rata in accordance with Section 3.2. or Section
9.4., as applicable, such Lender shall promptly purchase from the other Lenders
participations in (or, if and to the extent specified by such Lender, direct
interests in) the Ratable Shares of the Loan held by the other Lenders or other
Obligations owed to such other Lenders in such amounts, and make such other
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adjustments from time to time as shall be equitable, to the end that all the
Lenders shall share the benefit of such payment (net of any reasonable expenses
which may be incurred by such Lender in obtaining or preserving such benefit)
pro rata in accordance with Section 3.2. or Section 9.4. To such end, all the
Lenders shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored. The Borrower agrees that any Lender so purchasing a participation
(or direct interest) in the Loan or other Obligations owed to such other Lenders
may exercise all rights of set-off, banker's lien, counterclaim or similar
rights with respect to such participation as fully as if such Lender were a
direct holder of the Loan in the amount of such participation. Nothing contained
herein shall require any Lender to exercise any such right or shall affect the
right of any Lender to exercise, and retain the benefits of exercising, any such
right with respect to any other indebtedness or obligation of the Borrower.
SECTION 3.4. MINIMUM AMOUNTS.
(a) CONVERSIONS. Each Conversion of LIBOR Loans shall be in an aggregate
minimum amount of $2,000,000 and integral multiples of $1,000,000 in excess of
that amount.
(b) PREPAYMENTS. Each voluntary prepayment of the Loan shall be in an
aggregate minimum amount of $4,000,000 and integral multiples of $1,000,000 in
excess thereof (or, if less, the aggregate principal amount of the Loan then
outstanding).
SECTION 3.5. FEES.
The Borrower shall pay to the Agent and the Lenders from time to time such
fees as may be specified in the Fee Letter.
SECTION 3.6. COMPUTATIONS.
Unless otherwise expressly set forth herein, any accrued interest on the
Loan or any other Obligations due hereunder shall be computed on the basis of a
year of 360 days and the actual number of days elapsed.
SECTION 3.7. USURY.
In no event shall the amount of interest due or payable on the Loan or
other Obligations exceed the maximum rate of interest allowed by Applicable Law
and, if any such payment is paid by the Borrower or received by any Lender, then
such excess sum shall be credited as a payment of principal, unless the Borrower
shall notify the respective Lender in writing that the Borrower elects to have
such excess sum returned to it forthwith. It is the express intent of the
parties hereto that the Borrower not pay and the Lenders not receive, directly
or indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrower under Applicable Law.
SECTION 3.8. AGREEMENT REGARDING INTEREST AND CHARGES.
The parties hereto agree and stipulate that all fees that have been agreed
to in the Fee Letter, default charges, late charges, funding or "breakage"
charges, increased cost charges imposed pursuant to Article IV, attorneys' fees
and reimbursement for costs and expenses paid by the Agent or any Lender to
third parties or for damages incurred by the Agent or any Lender, are charges
made to compensate the Agent or any such Lender for underwriting or
administrative services and costs or losses performed or incurred, and to be
performed or incurred, by the Agent and the Lenders in connection with this
Agreement and shall under no circumstances be deemed to be charges for the use
of money. All charges other than charges for the use of money shall be fully
earned and nonrefundable when due.
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SECTION 3.9. STATEMENTS OF ACCOUNT.
The Agent will account to the Borrower monthly with a statement of the
Loan, accrued interest and Fees, charges and payments made pursuant to this
Agreement and the other Loan Documents, and such account rendered by the Agent
shall be deemed conclusive upon the Borrower absent manifest error. The failure
of the Agent to deliver such a statement of accounts shall not relieve or
discharge the Borrower from any of its obligations hereunder.
SECTION 3.10. TAXES.
(a) TAXES GENERALLY. All payments by the Borrower of principal of, and
interest on, the Loan and all other Obligations shall be made free and clear of
and without deduction for any present or future excise, stamp or other taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but excluding
(i) franchise taxes, (ii) any taxes (other than withholding taxes) that would
not be imposed but for a connection between the Agent or a Lender and the
jurisdiction imposing such taxes (other than a connection arising solely by
virtue of the activities of the Agent or such Lender pursuant to or in respect
of this Agreement or any other Loan Document), (iii) any taxes imposed on or
measured by any Lender's assets, net income, receipts or branch profits, and
(iv) any taxes, fees, duties, levies, imposts, charges, deductions, withholdings
or other charges to the extent imposed as a result of the failure of the Agent
or a Lender, as applicable, to provide and keep current (to the extent legally
able) any certificates, documents or other evidence required to qualify for an
exemption from, or reduced rate of, any such taxes fees, duties, levies,
imposts, charges, deductions, withholdings or other charges or required by the
immediately following subsection (c) to be furnished by the Agent or such
Lender, as applicable (such non-excluded items being collectively called
"Taxes"). If any withholding or deduction from any payment to be made by the
Borrower hereunder is required in respect of any Taxes pursuant to any
Applicable Law, then the Borrower will:
(i) pay directly to the relevant Governmental Authority the full
amount required to be so withheld or deducted;
(ii) promptly forward to the Agent an official receipt or other
documentation reasonably satisfactory to the Agent evidencing such payment
to such Governmental Authority; and
(iii) pay to the Agent for its account or the account of the
applicable Lender, as the case may be, such additional amount or amounts as
is necessary to ensure that the net amount actually received by the Agent
or such Lender will equal the full amount that the Agent or such Lender
would have received had no such withholding or deduction been required.
(b) TAX INDEMNIFICATION. If the Borrower fails to pay any Taxes in respect
of the Loan when due to the appropriate Governmental Authority or fails to remit
to the Agent, for its account or the account of the respective Lender, as the
case may be, the required receipts or other required documentary evidence, the
Borrower shall indemnify the Agent and the Lenders for any incremental Taxes,
interest or penalties that may become payable by the Agent or any Lender as a
result of any such failure. For purposes of this Section, a distribution
hereunder by the Agent or any Lender to or for the account of any Lender shall
be deemed a payment by the Borrower.
(c) TAX FORMS. Prior to the date that any Lender or Participant organized
under the laws of a jurisdiction outside the United States of America becomes a
party hereto, such Person shall deliver to the Borrower and the Agent such
certificates, documents or other evidence, as required by the Internal Revenue
Code or Treasury Regulations issued pursuant thereto (including Internal Revenue
Service Forms W-8ECI and W-8BEN, as applicable, or appropriate successor forms),
properly completed, currently effective and duly executed by such Lender or
Participant establishing that payments to it hereunder and under the Notes are
(i) not subject to United States Federal backup withholding tax and (ii) not
subject to United States Federal withholding tax under the Internal Revenue
Code. Each such Lender or Participant shall (x) deliver further copies of such
forms or other appropriate certifications on or before the date that any such
forms expire or become obsolete and after the occurrence of any event requiring
a change in the most recent form delivered to the Borrower or the Agent and (y)
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obtain such extensions of the time for filing, and renew such forms and
certifications thereof, as may be reasonably requested by the Borrower or the
Agent. The Borrower shall not be required to pay any amount pursuant to last
sentence of subsection (a) above to any Lender or Participant that is organized
under the laws of a jurisdiction outside of the United States of America or the
Agent, if it is organized under the laws of a jurisdiction outside of the United
States of America, if such Lender, Participant or the Agent, as applicable,
fails to comply with the requirements of this subsection. If any such Lender or
Participant fails to deliver the above forms or other documentation, then the
Agent may withhold from any payments to be made to such Lender under any of the
Loan Documents such amounts as are required by the Internal Revenue Code. If any
Governmental Authority asserts that the Agent did not properly withhold or
backup withhold, as the case may be, any tax or other amount from payments made
to or for the account of any Lender, such Lender shall indemnify the Agent
therefor, including all penalties and interest, any taxes imposed by any
jurisdiction on the amounts payable to the Agent under this Section, and costs
and expenses (including all reasonable fees and disbursements of any law firm or
other external counsel and the allocated cost of internal legal services and all
disbursements of internal counsel) of the Agent. The obligation of the Lenders
under this Section shall survive the repayment of all Obligations and the
resignation or replacement of the Agent.
ARTICLE IV. YIELD PROTECTION, ETC.
SECTION 4.1. ADDITIONAL COSTS; CAPITAL ADEQUACY.
(a) ADDITIONAL COSTS. The Borrower shall promptly pay to the Agent for the
account of a Lender from time to time such amounts as such Lender may determine
to be necessary to compensate such Lender for any costs incurred by such Lender
that it determines are attributable to its making or maintaining of any LIBOR
Loans, any reduction in any amount receivable by such Lender under this
Agreement or any of the other Loan Documents in respect of any of such LIBOR
Loans or such obligation or the maintenance by such Lender of capital in respect
of its Ratable Share of the Loan (such increases in costs and reductions in
amounts receivable being herein called "Additional Costs"), resulting from any
Regulatory Change that: (i) changes the basis of taxation of any amounts payable
to such Lender under this Agreement or any of the other Loan Documents in
respect of its ratable share of the Loans (other than taxes, fees, duties,
levies, imposts, charges, deductions, withholdings or other charges which are
excluded from the definition of Taxes pursuant to the first sentence of Section
3.10.(a)); or (ii) imposes or modifies any reserve, special deposit or similar
requirements (other than Regulation D of the Board of Governors of the Federal
Reserve System or other reserve requirement to the extent utilized in the
determination of the Adjusted LIBOR Rate for its ratable share of the Loan)
relating to any extensions of credit or other assets of, or any deposits with or
other liabilities of, such Lender, or any commitment of such Lender; or (iii)
has or would have the effect of reducing the rate of return on capital of such
Lender to a level below that which such Lender could have achieved but for such
Regulatory Change (taking into consideration such Lender's policies with respect
to capital adequacy).
(b) LENDER'S SUSPENSION OF LIBOR LOANS. Without limiting the effect of the
provisions of the immediately preceding subsection (a), if, by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on LIBOR Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
that includes LIBOR Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if such
Lender so elects by notice to the Borrower (with a copy to the Agent), the
obligation of such Lender to Continue, or to Convert Base Rate Loans into, LIBOR
Loans hereunder shall be suspended until such Regulatory Change ceases to be in
effect (in which case the provisions of Section 4.6. shall apply).
(c) NOTIFICATION AND DETERMINATION OF ADDITIONAL COSTS. Each of the Agent
and each Lender agrees to notify the Borrower of any event occurring after the
Agreement Date entitling the Agent or such Lender to compensation under any of
the preceding subsections of this Section as promptly as practicable; provided,
however, the failure of the Agent or any Lender to give such notice shall not
release the Borrower from any of its obligations hereunder (and in the case of a
Lender, to the Agent). The Agent or such Lender agrees to furnish to the
Borrower (and in the case of a Lender, to the Agent) a certificate setting forth
the basis and amount of each request by the Agent or such Lender for
compensation under this Section. Absent manifest error, determinations by the
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Agent or any Lender of the effect of any Regulatory Change shall be conclusive,
provided that such determinations are made on a reasonable basis and in good
faith.
SECTION 4.2. SUSPENSION OF LIBOR LOANS.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of any Adjusted LIBOR Rate for any Interest Period:
(a) the Agent reasonably determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Adjusted
LIBOR Rate for such Interest Period, or
(b) the Agent reasonably determines (which determination shall be
conclusive) that the Adjusted LIBOR Rate will not adequately and fairly
reflect the cost to the Lenders of making or maintaining LIBOR Loans for
such Interest Period;
then the Agent shall give the Borrower and each Lender prompt notice thereof
and, so long as such condition remains in effect, the Lenders shall be under no
obligation to, and shall not, Continue LIBOR Loans or Convert Base Rate Loans
into LIBOR Loans and the Borrower shall, on the last day of each current
Interest Period for each outstanding LIBOR Loan, either repay such LIBOR Loans
or Convert such LIBOR Loans into Base Rate Loans.
SECTION 4.3. ILLEGALITY.
Notwithstanding any other provision of this Agreement, if any Lender shall
reasonably determine (which determination shall be conclusive and binding) that
it has become unlawful for such Lender to honor its obligation to make or
maintain LIBOR Loans hereunder, then such Lender shall promptly notify the
Borrower thereof (with a copy to the Agent) and such Lender's obligation to
Continue, or to Convert Base Rate Loans into, LIBOR Loans shall be suspended
until such time as such Lender may again maintain LIBOR Loans (in which case the
provisions of Section 4.6. shall be applicable).
SECTION 4.4. COMPENSATION.
The Borrower shall pay to the Agent for the account of each Lender, upon
the request of such Lender through the Agent, such amount or amounts as shall be
sufficient (in the reasonable opinion of such Lender) to compensate it for any
out-of-pocket loss, cost or expense that such Lender determines is attributable
to:
(a) any payment or prepayment (whether mandatory or optional) of a
LIBOR Loan, or Conversion of a LIBOR Loan, made by such Lender for any
reason (including, without limitation, acceleration) on a date other than
the last day of the Interest Period for such LIBOR Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any of the applicable conditions precedent
specified in Article V. to be satisfied) to Convert a Base Rate Loan into a
LIBOR Loan or Continue a LIBOR Loan on the requested date of such
Conversion or Continuation.
Upon the Borrower's request, any Lender requesting compensation under this
Section shall provide the Borrower with a statement setting forth the basis for
requesting such compensation and the method for determining the amount thereof.
Absent manifest error, determinations by any Lender in any such statement shall
be conclusive, provided that such determinations are made on a reasonable basis
and in good faith.
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SECTION 4.5. AFFECTED LENDERS.
If (a) a Lender requests compensation pursuant to Section 3.10. or 4.1.,
and the Requisite Lenders are not also doing the same, or (b) the obligation of
any Lender to Continue, or to Convert Base Rate Loans into, LIBOR Loans shall be
suspended pursuant to Section 4.1.(b) or 4.3. but the obligation of the
Requisite Lenders shall not have been suspended under such Sections, then, so
long as there does not then exist any Default or Event of Default, the Borrower
may either (i) demand that such Lender (the "Affected Lender"), and upon such
demand the Affected Lender shall promptly, assign its Ratable Share of the Loan
to an Eligible Assignee subject to and in accordance with the provisions of
Section 11.5., (d) for a purchase price equal to the aggregate principal balance
of the Loan then owing to the Affected Lender plus any accrued but unpaid
interest thereon and accrued but unpaid fees owing to the Affected Lender, or
(ii) subject to the payment of the fee described in Section 3.5(b), pay to the
Affected Lender the aggregate principal balance of the Loan then owing to the
Affected Lender plus any accrued but unpaid interest thereon and accrued but
unpaid fees owing to the Affected Lender, whereupon the Affected Lender shall no
longer be a party hereto or have any rights or obligations hereunder or under
any of the other Loan Documents. Each of the Agent and the Affected Lender shall
reasonably cooperate in effectuating the replacement of such Affected Lender
under this Section, but at no time shall the Agent, such Affected Lender nor any
other Lender be obligated in any way whatsoever to initiate any such replacement
or to assist in finding an Eligible Assignee. The exercise by the Borrower of
its rights under this Section shall be at the Borrower's sole cost and expenses
and at no cost or expense to the Agent, the Affected Lender or any of the other
Lenders. The terms of this Section shall not in any way limit the Borrower's
obligation to pay to any Affected Lender compensation owing to such Affected
Lender pursuant to Section 3.1. or 4.1.
SECTION 4.6. TREATMENT OF AFFECTED LOANS.
If the obligation of any Lender to Continue, or to Convert Base Rate Loans
into, LIBOR Loans shall be suspended pursuant to Section 4.1.(b), 4.2. or 4.3.,
then such Lender's LIBOR Loans shall be automatically Converted into Base Rate
Loans on the last day(s) of the then current Interest Period(s) for LIBOR Loans
(or, in the case of a Conversion required by Section 4.1.(b) or 4.3., on such
earlier date as such Lender may specify to the Borrower with a copy to the
Agent) and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 4.1.(b) or 4.3. that gave rise to such
Conversion no longer exist:
(a) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's LIBOR Loans shall be applied instead to its
Base Rate Loans; and
(b) all LIBOR Loans that would otherwise be Continued by such Lender
as LIBOR Loans shall be Continued instead as Base Rate Loans, and all Base
Rate Loans of such Lender that would otherwise be Converted into LIBOR
Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 4.1.(b) or 4.3. that gave rise to the
Conversion of such Lender's LIBOR Loans pursuant to this Section no longer exist
(which such Lender agrees to do promptly upon such circumstances ceasing to
exist) at a time when LIBOR Loans made by other Lenders are outstanding, then
such Lender's Base Rate Loans shall be automatically Converted, on the first
day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR
Loans, to the extent necessary so that, after giving effect thereto, all LIBOR
are held pro rata (as to principal amounts, Types and Interest Periods) in
accordance with each Lender's Ratable Share of the Loan.
SECTION 4.7. CHANGE OF LENDING OFFICE.
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to its Ratable Share of the Loan affected
by the matters or circumstances described in Sections 3.10., 4.1. or 4.3. to
reduce the liability of the Borrower or avoid the results provided thereunder,
so long as such designation is not disadvantageous to such Lender as determined
by such Lender in its sole discretion, except that such Lender shall have no
obligation to designate a Lending Office located in the United States of
America.
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SECTION 4.8. ASSUMPTIONS CONCERNING FUNDING OF LIBOR LOANS.
Calculation of all amounts payable to a Lender under this Article IV. shall
be made as though such Lender had actually funded LIBOR Loans through the
purchase of deposits in the relevant market bearing interest at the rate
applicable to such LIBOR Loans in an amount equal to the amount of the LIBOR
Loans and having a maturity comparable to the relevant Interest Period;
provided, however, that each Lender may fund each of its LIBOR Loans in any
manner it sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Article IV.
ARTICLE V. CONDITIONS PRECEDENT
The obligation of Fleet to make the Loan is subject to the following
conditions precedent:
SECTION 5.1. DOCUMENTS.
The Agent shall have received each of the following, in form and substance
reasonably satisfactory to the Agent:
(i) Counterparts of this Agreement and the other Loan Documents
executed by each of the parties thereto, together with delivery to the
Agent of any certificates evidencing any of the Holding Trust Common Shares
or the Issuer Trust Common Shares, in each case duly endorsed to the Agent
or accompanied by appropriate share certificate powers executed in blank;
(ii) A Note executed by the Borrower, payable to Fleet and complying
with the applicable provisions of Section 2.8.;
(iii) Opinions of Proskauer Rose LLP and ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger,
counsel to the Borrower, Parent, and Holding Trust, addressed to the Agent
and the Lenders, in form and content reasonably satisfactory to Lender and
its counsel;
(iv) The articles of incorporation, articles of organization,
certificate of limited partnership or other comparable organizational
instrument (if any) of each of the Parent, the Borrower, Holding Trust and
Issuer Trust, certified as of a recent date by the Secretary of State of
the state of formation of such Person;
(v) A certificate of good standing or certificate of similar meaning
with respect to the Parent, the Borrower, Holding Trust and Issuer Trust
issued as of a recent date by the Secretary of State of the state of
formation of each such Person and certificates of qualification to transact
business or other comparable certificates issued by each Secretary of State
(and any state department of taxation, as applicable) of each state in
which such Person is required to be so qualified and where the failure to
be so qualified could reasonably be expected to have a material adverse
effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant
Secretary (or other individual performing similar functions) of each of the
Parent, the Borrower and Holding Trust with respect to each of the officers
of such Person authorized to execute and deliver the Loan Documents to
which such Person is a party;
(vii) Copies certified by the Secretary or Assistant Secretary of each
of the Parent, the Borrower and Holding Trust (or other individual
performing similar functions) of (i) the by-laws of such Person, if a
corporation, the operating agreement, if a limited liability company, the
partnership agreement, if a limited or general partnership, or other
comparable document in the case of any other form of legal entity and (ii)
all corporate, partnership, member or other necessary action taken by such
Person to authorize the execution, delivery and performance of the Loan
Documents to which it is a party;
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(viii) Copies of the Transaction Documents and all other documents and
other items required to be delivered to the Borrower pursuant to Section
3.1 of the Transaction Agreement, accompanied by a certificate of the
Borrower in the form of EXHIBIT E;
(ix) Copy of the CCLP Acquisition Letter of Intent (and any CCLP
Second Step Transactions Documents as by the Agreement Date shall have been
finalized and executed by the applicable parties thereto) accompanied by a
certificate of the Borrower in the form of EXHIBIT F; and
(x) Such other documents, agreements and instruments as the Agent on
behalf of the Lenders may reasonably request.
SECTION 5.2. OTHER CONDITIONS PRECEDENT.
(a) No Default or Event of Default shall have occurred and be continuing as
of the date of the making of the Loan or would exist immediately after giving
effect thereto.
(b) Utilizing a portion of the proceeds of the Loan, the transactions
contemplated by the Transaction Agreement shall have been consummated in
accordance with the terms thereof, including, without limitation (i) the CCLP
Term Loan Acquisition shall be consummated, (ii) the CCLP Term Loan Credit
Enhancement Termination Fee shall be paid and all obligations of CCLP (and its
affiliates, as the case may be) under the CCLP Term Loan Credit Enhancement Loan
Documents shall be satisfied, except for the clawback and related obligations as
set forth in the Agreement Relating to Amended and Restated Credit Enhancement
Umbrella Agreement, (iii) the RFC Loan shall have been paid in full, and (iv)
the Borrower shall have been granted, and shall have duly perfected, all of the
security interests to be granted to it pursuant to the Transaction Documents
(other than where perfection requires the filing of one or more financing
statements under the applicable Uniform Commercial Code, in which case the
Borrower shall have been provided UCC-1 financing statements in form proper for
filing in all necessary filing offices in order to duly perfect such security
interests, which UCC-1 financing statements the Borrower shall file no later
than the Business Day following the Closing).
(c) All warranties and representations made by or on behalf of any of the
Parent, the Borrower and Holding Trust to Fleet pursuant to the Loan Documents
shall be true and accurate in all material respects, and the Agent shall have
received a certificate of an officer of the Borrower certifying that an officer
of the General Partner of CCLP has certified to CM Investor that all of the
representations and warranties made by CCLP and its Affiliates to the Borrower
in the Transaction Documents shall be true and accurate in all material
respects.
(d) Fleet shall be satisfied that the Pledge and Security Agreements create
or will create, as security for the Obligations, a valid and enforceable
perfected first priority security interest in and Lien upon all of the
Collateral in favor of the Agent for the ratable benefit of the Lenders, subject
to no other Liens.
(e) In the good faith judgment of Fleet:
(i) There shall not have occurred or become known to Fleet any event,
condition, situation or status since the date of the information contained
in the financial and business projections, budgets, pro forma data and
forecasts concerning the Transactions contemplated by the Transaction
Documents, or the Parent and its Subsidiaries (taken as a whole) delivered
to Fleet prior to the Agreement Date that has had or could reasonably be
expected to result in a material adverse effect on the properties, assets,
financial condition or business of the Parent and its Subsidiaries (taken
as a whole);
(ii) No litigation, action, suit, investigation or other arbitral,
administrative or judicial proceeding shall be pending or threatened which
could reasonably be expected to (1) result in a material adverse effect on
the properties, assets, financial condition or business of the Parent and
its Subsidiaries (taken as a whole) or (2) restrain or enjoin, impose
materially burdensome conditions on, or otherwise materially and adversely
affect the ability of the Parent, the Borrower or Holding Trust to fulfill
its obligations under the Loan Documents to which it is a party;
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(iii) The Parent and its Subsidiaries shall have received all
approvals, consents and waivers, and shall have made or given all necessary
filings and notices as shall be required to consummate the transactions
contemplated hereby and under the Transaction Documents without the
occurrence of any default under, conflict with or violation of (1) any
Applicable Law or (2) any agreement, document or instrument to which the
Parent, the Borrower or Holding Trust is a party or by which any of them or
their respective properties is bound, except for such approvals, consents,
waivers, filings and notices the receipt, making or giving of which would
not reasonably be likely to (A) have a material adverse effect, or (B)
restrain or enjoin, impose materially burdensome conditions on, or
otherwise materially and adversely affect the ability of the Parent, the
Borrower or Holding Trust to fulfill its obligations under the Loan
Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material
disruption of financial or capital markets that could reasonably be
expected to materially and adversely affect the transactions contemplated
by the Loan Documents.
(f) The Borrower shall have paid the Agent and the Lenders such amounts as
shall be due under the Fee Letter and shall have paid all other amounts required
to be paid hereunder.
SECTION 5.3. CCA ACQUISITION ADVANCE FUNDING CONDITIONS.
The obligation of the Lenders to make the CCA Acquisition Advance is
subject to the satisfaction of the following conditions precedent, each in form
and substance satisfactory to the Agent:
(a) Each of the representations and warranties made by the Borrower in this
Agreement and the other Loan Documents shall be true and correct in all material
respects as of the date such advance is requested to be made (as if made on and
as of such date).
(b) No Default or Event of Default shall have occurred and be continuing.
(c) Between the Effective Date and the date the CCA Acquisition Advance is
requested to be made, nothing shall have occurred which has had, or is
reasonably likely to have, a material adverse effect on the business,
operations, property, assets, condition (financial or otherwise) or prospects of
the Borrower or the Parent.
(d) All of the conditions precedent set forth in the Transaction Documents
to the making of the advance by CM Investor to CCLP under the Transaction
Documents for the purpose of consummating the CCA Acquisition shall have been
satisfied, and simultaneously with the making of the CCA Acquisition Advance, CM
Investor shall make such advance in the like amount to CCLP for such purpose.
(e) The Agent shall have received a certificate of an officer of the
Borrower certifying that the foregoing conditions have been satisfied.
SECTION 5.4. CCLP SECOND STEP LOANS ADVANCE FUNDING CONDITIONS.
The obligation of the Lenders to make the CCLP Second Steps Loans
Advance is subject to the satisfaction of the following conditions precedent,
each in form and substance satisfactory to the Agent:
(a) Each of the representations and warranties made by the Borrower in this
Agreement and the other Loan Documents shall be true and correct in all material
respects as of the date such advance is requested to be made (as if made on and
as of such date).
(b) No Default or Event of Default shall have occurred and be continuing.
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(c) Between the Effective Date and the date the CCLP Second Step Loans
Advance is requested to be made, nothing shall have occurred which has had, or
is reasonably likely to have, a material adverse effect on the business,
operations, property, assets, condition (financial or otherwise) or prospects of
the Borrower or the Parent.
(d) (i) No party to any CCLP Second Step Transactions Documents is in
material breach of any of such Person's obligations thereunder, (ii) all of the
conditions precedent set forth in the CCLP Acquisition Letter of Intent and the
CCLP Second Step Transactions Documents then in effect to the making of the CCLP
Second Step Loans by CM Investor to the applicable parties in accordance with
the CCLP Acquisition Letter of Intent shall have been satisfied, and (iii)
simultaneously with the making of the CCLP Second Step Loans Advance, CM
Investor shall make the CCLP Second Step Loans to the applicable parties in
accordance with the CCLP Acquisition Letter of Intent and applicable CCLP Second
Step Transactions Documents.
(e) The CCLP Second Step Loans Documents and other CCLP Second Step
Transactions Documents shall conform in all material respects with corresponding
provisions of the CCLP Acquisition Letter of Intent.
(f) The Agent shall have received copies of the CCLP Second Step
Transactions Documents, certified as true and complete by an officer of the
Borrower.
(g) The Agent shall have received a certificate of an officer of the
Borrower certifying that the foregoing conditions have been satisfied.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and Fleet to enter into this Agreement and to
make the Loan, the Parent and the Borrower represent and warrant to the Agent
and Fleet as follows:
SECTION 6.1. FINANCIAL INFORMATION.
True, accurate and complete financial statements of the Parent as of and
for the period ended March 31, 2004, have been delivered to the Agent and each
of the Lenders and the same fairly present the financial condition of the Parent
and its Subsidiaries as of the date thereof and no material and adverse change
has occurred in such financial condition since the date thereof. All financial
statements of the Parent hereafter furnished to the Agent or any of the Lenders
shall be true, accurate and complete and shall fairly present the financial
condition of the Parent as of the date thereof.
SECTION 6.2. NO VIOLATIONS.
The consummation of the Loan and the subsequent payment and performance of
the Obligations evidenced and secured by the Loan Documents shall not constitute
a violation of, or conflict with, any Legal Requirement, Contractual Obligation
or Constituent Document, to which the Parent, the Borrower or Holding Trust is a
party or by which it or its property is or may be bound.
SECTION 6.3. LITIGATION.
Except as set forth in SCHEDULE 6.3, there are no actions, suits,
proceedings or investigations of any kind pending or, to the knowledge of the
Parent or the Borrower, threatened, against the Parent and/or the Borrower
and/or Holding Trust and/or Issuer Trust before any court, tribunal or
administrative agency or board that, if adversely determined, would reasonably
be expected to, either in any case or in the aggregate, materially adversely
affect the properties, assets, financial condition or business of such Person or
materially impair the right of such Person or, as to the Parent, its
Subsidiaries, to carry on business substantially as now conducted by it, or
result in any substantial liability not adequately covered by insurance, or for
which adequate reserves are not maintained on the balance sheet of such Person,
or, with respect to the Parent or the Borrower, which question the validity of
this Agreement or any of the other Loan Documents, or any action taken or to be
taken pursuant hereto or thereto.
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SECTION 6.4. GOOD TITLE AND NO LIENS.
The Parent, the Borrower and Holding Trust are the lawful owner of their
respective assets and are and will be the lawful owner of such assets, free and
clear of all liens and encumbrances of any nature whatsoever other than those
matters permitted in conjunction with this Agreement, other securitization
vehicles, or other Indebtedness incurred in connection with the conduct of
business by the Parent, the Borrower and Holding Trust in the ordinary course of
their respective businesses.
SECTION 6.5. FRANCHISE, PATENTS, COPYRIGHTS, ETC.
The Parent, the Borrower and Holding Trust each possess all franchises,
patents, copyrights, trademarks, trade names, licenses and permits, and rights
in respect of the foregoing, adequate for the conduct of its business
substantially as now conducted, without known conflict with any rights of
others, except to the extent the failure to own or have the same would not be
reasonably expected to (x) materially adversely effect the ability of the
Borrower to perform its Obligations under any Loan Document, (y) materially
adversely effect the ability of the Parent to perform its obligations under any
Loan Document or (z) have a material adverse effect upon the operations,
business, properties or financial condition of the Parent, the Borrower or
Holding Trust.
SECTION 6.6. USE OF PROCEEDS.
The proceeds of the Loan shall be used to finance the Borrower's
obligations under (a) the Transaction Documents in accordance with the terms
thereof, together with the costs and expenses of consummating the transactions
contemplated thereby as approved by the Agent and set forth in SCHEDULE 6.6
hereof, and (b) the CCLP Acquisition Letter of Intent and other CCLP Second Step
Transactions Documents in accordance with the terms thereof.
SECTION 6.7. ENTITY MATTERS.
(a) ORGANIZATION.
(i) The Parent is a duly organized validly existing statutory trust in
good standing under the laws of the State of Delaware and is duly qualified
in the jurisdiction where the nature of its business is such that
qualification is required or where failure to be so qualified would not
materially adversely affect its business or assets, and has all requisite
power and authority to conduct its business and to own its property, as now
conducted or owned, and as contemplated by this Agreement.
(ii) The Borrower is a duly organized validly existing corporation in
good standing under the laws of the State of Delaware and is duly qualified
in the jurisdiction where the nature of its business is such that
qualification is required or where failure to be so qualified would not
materially adversely affect its business or assets, and has all requisite
power and authority to conduct its business and to own its property, as now
conducted or owned, and as contemplated by this Agreement.
(iii) Holding Trust is a duly organized validly existing statutory
trust in good standing under the laws of the State of Delaware and is duly
qualified in the jurisdiction where the nature of its business is such that
qualification is required or where failure to be so qualified would not
materially adversely affect its business or assets, and has all requisite
power and authority to conduct its business and to own its property, as now
conducted or owned.
(iv) Issuer Trust is a duly organized validly existing statutory trust
in good standing under the laws of the State of Delaware and is duly
qualified in the jurisdiction where the nature of its business is such that
qualification is required or where failure to be so qualified would not
materially adversely affect its business or assets, and has all requisite
power and authority to conduct its business and to own its property, as now
conducted or owned.
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(v) CM Investor is a duly organized validly existing limited liability
company in good standing under the laws of the State of Delaware and is
duly qualified in the jurisdiction where the nature of its business is such
that qualification is required or where failure to be so qualified would
not materially adversely affect its business or assets, and has all
requisite power and authority to conduct its business and to own its
property, as now conducted or owned. CM Investor's only business is to
engage in the activities provided for it in the Transaction Documents.
(b) OWNERSHIP, SUBSIDIARIES AND TAXPAYER IDENTIFICATION NUMBERS.
(i) The Borrower and Holding Trust are each wholly-owned Subsidiaries
of the Parent, and Issuer Trust is a wholly-owned subsidiary of Holding
Trust, and, other than the outstanding Issuer Trust Preferred Shares, no
additional ownership interests of the Borrower, Holding Trust or Issuer
Trust, or rights or instruments convertible into such ownership interests
exist. CM Investor is a wholly-owned subsidiary of the Borrower. True and
complete copies of each of the agreements listed on SCHEDULE 6.7(B)(I) have
been furnished to the Agent by the Parent and the Borrower.
(ii) The taxpayer identification numbers and state organizational
numbers (if applicable) of the foregoing Persons are accurately stated in
SCHEDULE 6.7(B)(II).
(iii) Except as set forth on SCHEDULE 6.7(B)(III), the Parent, the
Borrower and Holding Trust are each the owner, free and clear of all liens
and encumbrances (other than those created by the Loan Documents), of the
Equity Interests which they purport to own of each of their respective
Subsidiaries. All shares of such Equity Interests have been validly issued
and are fully paid and nonassessable, and no rights to subscribe to any
additional shares have been granted, and no options, warrants, or similar
rights are outstanding except as set forth in SCHEDULE 6.7(B)(III).
(c) AUTHORIZATION. The execution and delivery of this Agreement (and of the
Joinders hereto by Holding Trust and CM Investor) and the other Loan Documents
to which the Parent, the Borrower or Holding Trust is to become a party and the
performance by the Parent, the Borrower and Holding Trust of the transactions
contemplated hereby and thereby (i) are within the authority of the Parent, the
Borrower and Holding Trust, as applicable, (ii) have been duly authorized by all
necessary corporate or trust action, as applicable, (iii) do not conflict with
or result in any breach or contravention of any Legal Requirement to which the
Parent, the Borrower and Holding Trust, as applicable, is subject or any
judgment, order, writ, injunction, license or permit applicable to the Parent,
the Borrower and Holding Trust, as applicable, and (iv) do not conflict with any
provision of the Parent's, the Borrower's and Holding Trust's, as applicable,
Constituent Documents or any Contractual Obligation of the Parent, the Borrower
and Holding Trust, as applicable, except where such conflict would not have a
materially adverse effect on the business, assets or financial condition of the
Parent, the Borrower and Holding Trust, as applicable.
SECTION 6.8. VALID AND BINDING.
Each of the Loan Documents constitutes the legal, valid and binding
obligation of the Parent, the Borrower and Holding Trust, in accordance with the
respective terms thereof, subject to bankruptcy, insolvency and similar laws of
general application affecting the rights and remedies of creditors and, with
respect to the availability of the remedies of specific enforcement, subject to
the discretion of the court before which any proceeding therefor may be brought.
SECTION 6.9. DEFERRED COMPENSATION AND ERISA.
Neither the Parent nor the Borrower has any pension, profit sharing, stock
option, insurance or other arrangement or plan for employees covered by Title IV
of the Employment Retirement Security Act of 1974, as now or hereafter amended
("ERISA") except as may be designated to the Agent in writing by the Parent or
the Borrower from time to time ("ERISA Plan") and no "Reportable Event" as
defined in ERISA has occurred and is now continuing with respect to any such
ERISA Plan. The granting of the Loan, the performance by the Parent and the
26
Borrower of their respective obligations under the Loan Documents and the
Parent's and the Borrower's conducting of their respective operations do not and
will not violate any provisions of ERISA.
SECTION 6.10. NO MATERIALLY ADVERSE CONTRACTS, ETC.
None of the Parent, the Borrower or Holding Trust, or any of their
respective Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation that has or is
expected in the future to have a materially adverse effect on the business,
assets or financial condition of the Parent, the Borrower or Holding Trust. None
of the Parent, the Borrower or Holding Trust, or any of their respective
Subsidiaries is a party to any contract or agreement that has or is expected, in
the judgment of the Parent's, the Borrower's or Holding Trust's officers,
respectively, to have any materially adverse effect on the business, assets, or
financial condition of the Parent, the Borrower or Holding Trust.
SECTION 6.11. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC.
None of the Parent, the Borrower or Holding Trust nor any of their
respective Subsidiaries is in violation of any provision of its Constituent
Documents, or any Contractual Obligations or any Legal Requirements, in any of
the foregoing cases in a manner that could result in the imposition of
substantial penalties or materially and adversely affect the financial
condition, properties, assets or business of such Person or such Person's
Subsidiaries.
SECTION 6.12. TAX STATUS.
The Parent, the Borrower, Holding Trust and their respective Subsidiaries
(a) have made or filed all federal and state income and all other tax returns,
reports and declarations required by any jurisdiction to which such Person is
subject, (b) have paid all taxes and other governmental assessments and charges
shown or determined to be due on such returns, reports and declarations, except
those being contested in good faith and by appropriate proceedings and (c) have
set aside on its books provisions reasonably adequate for the payment of all
taxes for periods subsequent to the periods to which such returns, reports or
declarations apply. Except for taxes being contested as provided in clause (b),
above, there are no unpaid taxes in any material amount claimed to be due by the
taxing authority of any jurisdiction, and the officers of the foregoing Persons
know of no basis for any such claim.
SECTION 6.13. HOLDING COMPANY AND INVESTMENT COMPANY ACTS.
Neither the Parent, the Borrower nor any of its Subsidiaries is a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company", as such terms are defined in the Public Utility Holding
Company Act of 1935; nor is it an "investment company", or an "affiliated
company" or a "principal underwriter" of an "investment company", as such terms
are defined in the Investment Company Act of 1940.
SECTION 6.14. CERTAIN TRANSACTIONS.
Except as set forth in SCHEDULE 6.14 hereof, as of the date of this
Agreement, none of the officers, trustees, directors, or employees of the
Parent, the Borrower or any of its Subsidiaries is presently a party to any
transaction with the Parent, the Borrower or any of its Subsidiaries (other than
for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, trustee, director or such employee or
any corporation, partnership, trust or other entity in which any officer,
trustee, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner.
SECTION 6.15. LOAN DOCUMENTS.
All of the representations and warranties of the Parent, the Borrower and
Holding Trust made in the Loan Documents are true and correct in all material
respects.
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SECTION 6.16. REGULATIONS U AND X.
No portion of the Loan is to be used for the purpose of purchasing or
carrying any "margin security" or "margin stock" as such terms are used in
Regulations U and X of the Board of Governors of the Federal Reserve System, 12
C.F.R. Parts 221 and 224.
SECTION 6.17. SOLVENCY.
(a) The Parent, individually, is and the Parent and its subsidiaries, on a
consolidated basis, are, Solvent.
(b) The Borrower, individually, is, and the Borrower and its Subsidiaries,
on a consolidated basis, are, Solvent.
(c) Holding Trust, individually, is, and Holding Trust and its
Subsidiaries, on a consolidated basis, are, Solvent.
SECTION 6.18. CONDITIONS SATISFIED.
Assuming that the Agent and the Lenders have approved all matters requiring
their approval, all of the conditions precedent set forth in Sections 5.1 and
5.2 have been satisfied.
SECTION 6.19. NO MATERIAL CHANGE; NO DEFAULT.
There has been no (i) material adverse change in the financial condition,
business, or assets of the Parent and/or the Borrower and/or Holding Trust, or
(ii) Parent Change in Control since the date of its last financial statement
most recently delivered to the Agent.
SECTION 6.20. NO BROKER OR FINDER.
None of the Parent, the Borrower, or anyone on behalf thereof has dealt
with any broker, finder or other person or entity who or which may be entitled
to a broker's or finder's fee, or other compensation, payable by the Agent or
any of the Lenders in connection with the Loan.
SECTION 6.21. BACKGROUND INFORMATION AND CERTIFICATES.
All of the factual information provided by the Parent, the Borrower that is
contained or referred to in this Article VI and in the SCHEDULES to this
Agreement, and in the certificates and opinions furnished to the Agent or any of
the Lenders by or on behalf of the Parent or the Borrower in connection with
this Agreement or any other Loan Document, is true, accurate and complete in all
material respects, and omits no material fact necessary to make the same not
misleading.
ARTICLE VII. AFFIRMATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 11.6., all of the Lenders) shall otherwise
consent in the manner provided for in Section 11.6., the Parent and the Borrower
shall comply with the following covenants:
SECTION 7.1. PUNCTUAL PAYMENT.
The Borrower will duly and punctually pay or cause to be paid the principal
and interest on the Loan and all interest, fees and other Obligations provided
for in this Agreement, all in accordance with the terms of this Agreement and
the Notes, as well as all other sums owing pursuant to the Loan Documents.
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SECTION 7.2. MAINTENANCE OF OFFICE.
The Parent, the Borrower and CM Investor each will maintain its chief
executive office in New York, New York, or at such other place in the United
States of America as the Parent or the Borrower shall designate upon not less
than forty-five (45) days prior written notice to the Agent.
SECTION 7.3. ORGANIZATIONAL NUMBER.
Neither the Parent nor the Borrower will change its organizational number
or taxpayer identification number, except upon forty-five (45) days prior
written notice to the Agent.
SECTION 7.4. RECORDS AND ACCOUNTS.
The Parent and the Borrower will keep, and cause each of its Subsidiaries
to keep, true and accurate records and books of account in which full, true and
correct entries will be made in accordance with GAAP.
SECTION 7.5. NOTICES.
(a) The Parent and the Borrower will, with reasonable promptness, but in
all events within five (5) Business Days after it has actual knowledge thereof,
notify Agent in writing of the occurrence of any act, event or condition which
constitutes a Default or an Event of Default under any of the Loan Documents, to
include a written statement of any remedial or curative actions which Borrower
proposes to undertake to cure or remedy any such Default before it becomes an
Event of Default.
(b) The Parent and the Borrower will, and will cause Holding Trust to, give
notice to the Agent in writing of any events relating to the Collateral that
materially adversely affect the rights of the Agent or the Lenders with respect
thereto.
(c) The Parent and the Borrower will, and will cause each of its
Subsidiaries to, give notice to the Agent and the Lenders in writing (within ten
(10) days of the date on which any such Person shall become aware thereof) of
any litigation or proceedings threatened or any pending litigation and
proceedings affecting the Parent, the Borrower or any Subsidiaries of the Parent
or the Borrower or to which such Person is or is to become a party involving an
amount in controversy exceeding $500,000.00, or with respect to any of the
foregoing Persons, that could reasonably be expected to have a materially
adverse effect on such Person and stating the nature and status of such
litigation or proceedings. The Parent and the Borrower will, and will cause each
of its Subsidiaries to, give notice to the Agent and the Lenders in writing in
form and detail reasonably satisfactory to the Agent and the Lenders (within ten
(10) days of the date on which any such Person shall become aware thereof) of
any judgment in excess of $500,000.00 not covered by insurance, final or
otherwise, against such Persons. Notwithstanding the foregoing, the parties
hereto agree that the litigation listed on Schedule 6.3 hereto shall be excluded
from the notice provisions of this Section 7.5(c).
(d) The Borrower will give the Agent prompt notice of any default or event
of default under any Transaction Document or CCLP Second Step Transactions
Documents of which the Borrower becomes aware, or of the occurrence of any event
of which the Borrower becomes aware which could reasonably be expected to have a
materially adverse effect of CCLP or any of its Affiliates. The Borrower will be
deemed to be aware of any matter of which CM Investor is aware.
SECTION 7.6. EXISTENCE; CONDUCT OF BUSINESS.
(a) The Parent will (a) do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a Delaware statutory
trust, (b) preserve and keep in full force all of its rights and franchises,
except where such failure would not have a material adverse effect on the
business, assets or financial condition of the Parent and (c) only engage in
businesses now engaged in by it (or businesses reasonably related or ancillary
thereto) and contemplated by its Constituent Documents.
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(b) The Borrower will (a) do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a Delaware
corporation and CM Investor's existence as a Delaware limited liability company,
(b) preserve and keep in full force all of its and CM Investor's rights and
franchises, except where such failure would not have a material adverse effect
on the respective business, assets or financial condition of the Borrower and CM
Investor, and (c) only engage in businesses now engaged in by it (or businesses
reasonably related or ancillary thereto) and contemplated by its Constituent
Documents and permit CM Investor to only engage in the activities contemplated
for it by the Transaction Documents.
(c) The Parent will cause each of Holding Trust and Issuer Trust to (a) do
or cause to be done all things necessary to preserve and keep in full force and
effect such Person's existence as a Delaware statutory trust, (b) preserve and
keep in full force all of such Person's rights and franchises, except where such
failure would not have a material adverse effect on the business, assets or
financial condition of such Person, and (c) only engage in businesses now
engaged in by each such Person (or businesses reasonably related or ancillary
thereto) and contemplated by such Person's Constituent Documents.
SECTION 7.7. INSURANCE.
SCHEDULE 7.7 sets forth all presently existing insurance maintained by the
Parent and the Borrower. The Parent and the Borrower will maintain insurance
with respect to its business operations, and will cause each of its Subsidiaries
to maintain with financially sound and reputable insurers, insurance with
respect to such properties and its business against such casualties and
contingencies as shall be in accordance with the general practices of businesses
engaged in similar activities in similar geographic areas and in amounts,
containing such terms, in such forms and for such periods as may be reasonable
and prudent.
SECTION 7.8. TAXES AND TRADE DEBT.
The Parent and the Borrower will, and will cause each of its Subsidiaries
to, duly pay and discharge, or cause to be paid and discharged, before the same
shall become overdue, all taxes, assessments and other governmental charges
imposed upon it and its real properties, sales and activities, or any part
thereof, or upon the income or profits therefrom, except for those taxes,
assessments or charges which any such Person is contesting in good faith by
appropriate proceedings and with respect to which appropriate reserves have been
established and are being maintained in accordance with GAAP.
SECTION 7.9. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS.
The Parent, the Borrower and CM Investor will comply with (x) all
applicable Legal Requirements now or hereafter in effect wherever its business
is conducted, (y) the provisions of its Constituent Documents, and (z) all of
its Contractual Obligations (except during any period where such compliance is
not permitted by the terms of this Agreement), except to the extent the failure
to comply with any of the foregoing would not be reasonably expected to (x)
materially adversely effect the ability of the Borrower to perform its
Obligations under any Loan Document, (y) materially adversely effect the ability
of the Parent to perform its obligations under any Loan Document or (z) have a
material adverse effect upon the operations, business, properties or financial
condition of the Parent or the Borrower. If at any time while any Obligation is
outstanding, any Governmental Authorization or other third party consents,
approvals, or notifications shall become necessary or required in order that the
Parent or the Borrower may fulfill any of its obligations hereunder, the Parent
and the Borrower will promptly take or cause to be taken all reasonable steps
within the power of the Parent and the Borrower to obtain such Governmental
Authorization or other third party consents and to provide such notifications,
and furnish the Agent with evidence thereof.
Section 7.10. INDEMNIFICATION AGAINST PAYMENT OF BROKERS' FEES.
The Parent and the Borrower agree to defend, indemnify and hold harmless
the Agent and the Lenders from and against any and all liabilities, damages,
penalties, costs, and expenses, relating in any manner to any brokerage or
30
finder's fees in respect of the Loan (except as resulting from any arrangements
or agreements made with any broker or finder by the Agent, the Lenders, or any
Participant).
SECTION 7.11. FISCAL YEAR.
The fiscal year of the Parent and the Borrower presently ends on December
31 of each year. If any of the Parent, the Borrower or its Subsidiaries shall
change their fiscal year end, such Person shall promptly furnish the Agent with
written notice thereof.
SECTION 7.12. PLACE FOR RECORDS; INSPECTION.
The Parent, the Borrower, Holding Trust, and CM Investor shall maintain all
of their business records at the address specified in Section 11.1 of this
Agreement with respect to the Borrower. Upon reasonable notice and at reasonable
times during normal business hours, the Agent and each Lender shall have the
right (through such agents or consultants as the Agent or any Lender may
designate) to examine the Parent's, the Borrower's, Holding Trust's and CM
Investor's property and make copies of and abstracts from the Parent's, the
Borrower's, Holding Trust's and CM Investor's books of account, correspondence
and other records and to discuss their respective financial and other affairs
with any of their respective senior officers and any accountants hired by the
Parent or the Borrower, it being agreed that the Agent and each Lender shall
hold such information in confidence in accordance with the provisions of Section
11.8 hereof. Any transferee of any portion of the Loan or any holder of a
participation interest in the Loan shall be entitled to deal with such
information in the same manner and in connection with any subsequent transfer of
its interest in the Loan or of further participation interests therein;
PROVIDED, HOWEVER, any such Lender, transferee, holder or participant shall be
bound by the confidentiality provisions of Section 11.8.
SECTION 7.13. COSTS AND EXPENSES.
Whether or not the transactions contemplated hereby shall be consummated,
the Parent and the Borrower agree to pay promptly, but no later than ten (10)
days of the Agent's demand: (i) all the actual and reasonable out-of-pocket
costs and expenses of preparation of the Loan Documents and any consents,
amendments, waivers, or other modifications thereto incurred by the Agent; (ii)
the reasonable fees, expenses, and disbursements of counsel to the Agent in
connection with the negotiation, preparation, execution, and administration of
the Loan Documents and any consents, amendments, waivers, or other modifications
thereto and any other documents or matters requested by the Parent or the
Borrower; (iii) all other actual and reasonable out-of-pocket costs and expenses
incurred by the Agent in connection with the making or syndication of the Loan
and the negotiation, preparation, and execution of the Loan Documents and any
consents, amendments, waivers, or other modifications thereto and the
transactions contemplated thereby; and (iv) all reasonable out-of-pocket
expenses (including reasonable attorneys' fees and costs, which attorneys may be
employees of the Agent or any Lender and the fees and costs of appraisers,
brokers, investment bankers or other experts retained by the Agent or any
Lender) incurred by the Agent or any Lender in connection with (i) the
enforcement of or preservation of rights under any of the Loan Documents against
the Parent, the Borrower or any other Person, or the administration thereof,
(ii) any refinancing or restructuring of the credit arrangements provided under
this Agreement in the nature of a "WORK-OUT" or pursuant to any insolvency or
bankruptcy proceedings, and (iii) any litigation, proceeding or dispute whether
arising hereunder or otherwise, in any way related to the Agent's or any
Lender's relationship with the Parent or the Borrower, except to the extent
arising out of the Agent's or any Lender's bad faith, gross negligence, willful
misconduct or material breach of this Agreement or any other Loan Document, as
finally determined by a court of competent jurisdiction. The covenants of this
Section shall survive payment or satisfaction of payment of amounts owing with
respect to the Obligations. The amount of all such expenses shall, until paid,
bear interest at the rate applicable to principal hereunder (including the
Default Rate) and be an Obligation secured by any Collateral.
SECTION 7.14. REPLACEMENT DOCUMENTATION.
Upon receipt of an affidavit of an officer of (x) a Lender as to the loss,
theft, destruction or mutilation of such Lender's Note, or (y) the Agent as to
any other Loan Document which is not of public record, and, in the case of any
such loss, theft, destruction or mutilation, upon surrender and cancellation of
such Note or other Loan Document, the Parent and the Borrower will promptly
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issue, in lieu thereof, a replacement Note or other Loan Document which shall
be, as applicable, in the same principal amount thereof and otherwise of like
tenor.
SECTION 7.15. FURTHER ASSURANCES.
The Parent and the Borrower will cooperate with, and will cause each of its
Subsidiaries to cooperate with, the Agent and the Lenders and execute such
further instruments and documents as the Lenders or the Agent shall reasonably
request to carry out to their satisfaction the transactions contemplated by this
Agreement and the other Loan Documents.
SECTION 7.16. PARENT GUARANTY.
The Parent shall at all times comply with the terms and conditions of the
Parent Guaranty, including, without limitation, the CharterMac Covenants set
forth in the Parent Guaranty.
SECTION 7.17. FINANCIAL INFORMATION.
Without derogating the Parent's obligations pursuant to the Parent
Guaranty, the Parent will promptly supply and cause the Borrower to supply the
Agent and the Lenders with such information relating to the Loan Documents and
the performance of the Obligations contemplated thereby as the Agent or any
Lender may hereafter reasonably request from time to time.
SECTION 7.18. EXCHANGE LISTING.
The Parent shall maintain at least one class of common shares of the Parent
having trading privileges on the New York Stock Exchange or the American Stock
Exchange or which is the subject of price quotations in the over-the-counter
market as reported by the National Association of Securities Dealers Automated
Quotation System.
ARTICLE VIII. NEGATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 11.6., all of the Lenders) shall otherwise
consent in the manner set forth in Section 11.6., the Parent and the Borrower
shall comply with the following covenants:
SECTION 8.1. LIENS.
Neither the Parent nor the Borrower will permit the Parent or Holding Trust
to create, incur or assume any Lien upon or with respect to any Collateral. In
addition, in no event will the Borrower permit CM Investor to pledge, grant a
security interest in, or in any way restrict any of its interests in and to, or
rights or benefits under, the Transaction Documents, the CCLP Second Step Loans
Documents or other CCLP Second Step Transactions Documents, or any rights
thereunder, in favor of any Person, or grant a negative pledge therein in favor
of any Person.
SECTION 8.2. MERGER; OWNERSHIP INTERESTS; SALE OF ASSETS.
(a) PARENT
(i) The Parent will not be a party to any transaction that constitutes
a Parent Change in Control.
(ii) The Parent will at all times hold, beneficially and of record,
one hundred percent (100%) of the equity ownership and voting control of
the Borrower and Holding Trust, on a fully diluted basis, assuming the
conversion of all convertible securities, the granting of all authorized
options and equity awards and the exercise of all options, warrants,
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subscription rights, preemptive rights and other similar rights.
(b) BORROWER, HOLDING TRUST AND ISSUER TRUST
(i) The Parent will not permit Holding Trust or Issuer Trust to become
a party to any merger or consolidation except (A) the merger or
consolidation of one or more Subsidiaries of the Borrower, Holding Trust or
Issuer Trust with and into the Borrower, Holding Trust or Issuer Trust,
respectively, or (B) the merger or consolidation of two or more
Subsidiaries of any of the Borrower, Holding Trust or Issuer Trust with
each other.
(ii) Except for securitization and other financing transactions
consummated in the ordinary course of business, the Parent will not permit
the Borrower, Holding Trust or Issuer Trust to effect any sale or
disposition of its tangible assets if such sale or disposition, whether
directly or indirectly (whether pursuant to a single transaction or series
of related transaction) represents more than 5% of the Borrower's, Holding
Trust's or Issuer Trust's Tangible Assets, as of the date of such sale or
disposition; PROVIDED, HOWEVER, such sales or dispositions will be
permitted to other Subsidiaries of the Parent, the Borrower, Holding Trust
or Issuer Trust so long as such subsidiary, concurrently with such sale or
disposition, pledges all of its Equity Interests to the Lender or
guaranties the repayment of the Obligations, in each case pursuant to
documentation reasonably satisfactory to the Agent.
(iii) The Parent will require that Holding Trust hold at all times,
beneficially and of record, one hundred percent (100%) of the Issuer Trust
Common Shares and voting control of Issuer Trust, on a fully diluted basis,
assuming the conversion of all convertible securities, the granting of all
authorized options and equity awards and the exercise of all options,
warrants, subscription rights, preemptive rights and other similar rights.
(iv) The Parent will not permit Holding Trust or Issuer Trust to issue
any additional ownership interests, or rights or instruments convertible
into such ownership interests, other than issuances of Issuer Trust
Preferred Shares.
SECTION 8.3. LOANS AND ADVANCES.
Other than (a) the loans to be made to CCLP and certain of its Affiliates
pursuant to the Transaction Documents, and (b) the CCLP Second Step Loans, the
Parent and the Borrower will not and will not permit any of their respective
Subsidiaries to, make any loans or advances to any Person other than in the
ordinary course of business and advances to the Parent's, the Borrower's or
their respective Subsidiaries' employees in the ordinary course of business for
reasonable expenses to be incurred by such employees for the benefit of the
Parent, the Borrower or such Subsidiaries.
SECTION 8.4. DISTRIBUTIONS.
So long as a Default or an Event of Default has occurred and is continuing,
the Parent will not (a) make any payments or distributions to any Person on
account of the Parent's Equity Interests and (b) permit Charter Mac Capital to
make any Distributions on account of the Special Common Units.
SECTION 8.5. AFFILIATE INDEBTEDNESS.
So long as a Default or an Event of Default has occurred and is continuing,
the Parent will not make any payments to any Affiliate on account of any
Indebtedness owed by the Parent to any Affiliate.
SECTION 8.6 TRANSACTION DOCUMENTS
The Borrower shall not amend, modify, waive any material rights under or
terminate any of the Transaction Documents or CCLP Second Step Transaction
Documents without the prior written consent of the Agent.
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ARTICLE IX. DEFAULT
SECTION 9.1. EVENTS OF DEFAULT.
Each of the following events, unless cured within any applicable grace
period set forth or referred to below in this Section 9.1, shall constitute an
"Event of Default":
(a) FAILURE TO PAY.
(i) The Borrower shall fail to pay any principal or any other
Obligation (except for interest as provided for below) as and when the same
shall become due and payable; or
(ii) The Borrower shall fail to pay any interest under the Loan within
three (3) days of when the same is due and payable;
(b) FAILURE TO PERFORM. The Parent or the Borrower shall fail to comply
with any of its other agreements and covenants contained herein or any of the
agreements and covenants contained in any other Loan Documents and which are not
referenced herein;
(c) BREACH OF REPRESENTATION OR WARRANTY. Any representation or warranty of
the Parent or the Borrower in this Agreement or any of the other Loan Documents
shall have been false in any material respect upon the date when made or deemed
to have been made or repeated;
(d) FAILURE TO PAY OTHER INDEBTEDNESS. The Parent, the Borrower or any of
their respective Subsidiaries shall fail to pay at maturity, or within any
applicable period of grace, or otherwise default under, any obligation for
borrowed money or credit received in excess of $5,000,000.00, as a result of
which the holder of such Indebtedness could accelerate the time for payment of
such Indebtedness, notwithstanding that such acceleration has not occurred
(unless such Person is contesting the existence of any such alleged default and
has fully reserved, in cash or Cash Equivalents, the full amount of the subject
Indebtedness);
(e) INSOLVENCY. The Parent, the Borrower or any of their respective
Subsidiaries shall make an assignment for the benefit of creditors, or admit in
writing its inability to pay or generally fail to pay its debts as they mature
or become due, or shall petition or apply for the appointment of a trustee or
other custodian, liquidator or receiver of the Parent, the Borrower or any of
their respective Subsidiaries or of any substantial part of the assets of the
Parent, the Borrower or any of their respective Subsidiaries or shall commence
any case or other proceeding relating to the Parent, the Borrower or any of
their respective Subsidiaries under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation or similar law of
any jurisdiction, now or hereafter in effect, or shall take any action to
authorize or in furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding shall be
commenced against the Parent, the Borrower or any of their respective
Subsidiaries and the Parent, the Borrower or any of their respective
Subsidiaries shall indicate its approval thereof, consent thereto or
acquiescence therein;
(f) INVOLUNTARY PROCEEDINGS. The filing of any case or other proceeding
against the Parent, the Borrower or any of their respective Subsidiaries under
any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or hereafter
in effect and such case or proceeding is not controverted within ten (10) days
or dismissed within sixty (60) days of its commencement; a decree or order is
entered appointing any such trustee, custodian, liquidator or receiver, or
adjudicating the Parent, the Borrower or any of their respective Subsidiaries
bankrupt or insolvent, or approving a petition in any such case or other
proceeding; or a decree or order for relief is entered in respect of the Parent,
the Borrower or any of their respective Subsidiaries, in an involuntary case
under federal bankruptcy laws as now or hereafter constituted;
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(g) JUDGMENTS. There shall remain in force, undischarged, unsatisfied and
unstayed, for more than forty-five (45) days, whether or not consecutive, any
uninsured final judgment against the Parent, the Borrower or any of their
respective Subsidiaries that, with other outstanding uninsured final judgments,
undischarged, against the Parent, the Borrower or any of their respective
Subsidiaries exceeds in the aggregate $5,000,000;
(h) CANCELLATION OF LOAN DOCUMENTS. If any of the Loan Documents shall be
canceled, terminated, revoked or rescinded or any action at law, suit or in
equity or other legal proceeding to cancel, revoke or rescind any of the Loan
Documents shall be commenced by or on behalf of the Parent, the Borrower or any
of their respective Subsidiaries, or any court or any other governmental or
regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the effect
that, any one or more of the Loan Documents is illegal, invalid or unenforceable
in accordance with the terms thereof;
(i) ERISA. With respect to any ERISA Plan, an ERISA Reportable Event shall
have occurred and (i) a trustee shall have been appointed by the United States
District Court to administer such Plan; or (ii) the PBGC shall have instituted
proceedings to terminate such ERISA Plan (which termination proceedings could
result in liability of the Borrower or any of its Subsidiaries to the PBGC in
excess of $250,000);
(j) INDICTMENT. The Parent, the Borrower, Holding Trust or any of their
respective Subsidiaries shall be indicted for a federal crime, a punishment for
which could include the forfeiture of any assets of the Parent, the Borrower,
Holding Trust or any of their respective Subsidiaries;
(k) MATERIAL ADVERSE CHANGE. There shall have occurred any change in or to
the assets, liabilities, financial condition, business operations, or prospects
of the Parent and its Subsidiaries or the Borrower and its Subsidiaries, in each
case taken as a whole, which change materially adversely affects the Parent's or
the Borrower's ability to perform its obligations under this Agreement or the
other Loan Documents;
(l) REGARDING HOLDING TRUST. The occurrence of any of the foregoing Events
of Default described in subsections (c), (d), (e), (f), (g), (i), (j) or (k)
above, with respect to Holding Trust, as if Holding Trust was the "Borrower"
described therein;
(m) MORTGAGE WAREHOUSING FACILITY. The occurrence of an event of default
(however defined or described) under the Mortgage Warehousing Facility;
(n) ACQUISITION LINE FACILITY. The occurrence of an event of default
(however defined or described) under the Acquisition Line Facility;
(o) BOND WAREHOUSING FACILITY. The occurrence of an event of default
(however defined or described) under the Bond Warehousing Facility;
(p) REIMBURSEMENT AGREEMENT. The occurrence of an event of default (however
defined or described) under the Reimbursement Agreement;
(q) RCC TAX CREDIT FACILITY. The occurrence of an event of default (however
defined or described) under the RCC Tax Credit Facility; or
(r) TRANSACTION DOCUMENTS. The breach by the Borrower of any of its
obligations under any Transaction Document which would have a material adverse
effect on CM Investor's ability to exercise its rights and remedies under the
Transaction Documents in the event of a breach by the obligors thereunder, or
otherwise to enjoy all of the material rights and benefits of and under the
Transaction Documents.
(s) CCLP SECOND STEP TRANSACTION DOCUMENTS. The breach by the Borrower of
any of its obligations under any CCLP Second Step Transaction Documents which
would have a material adverse effect on CM Investor's ability to exercise its
rights and remedies under the CCLP Second Step Transactions Documents in the
35
event of a breach by the counterparties thereunder, or otherwise to enjoy all of
the material rights and benefits of and under the CCLP Second Step Transaction
Documents.
SECTION 9.2. REMEDIES UPON EVENT OF DEFAULT.
(a) ACCELERATE DEBT. The Agent may, and with the direction of the Requisite
Lenders shall, declare the Obligations evidenced by the Notes, this Agreement
and the other Loan Documents immediately due and payable (provided that in the
case of the occurrence of an event set forth in Section 9.1(e) and 9.1(f), such
acceleration shall be automatic); and
(b) PURSUE REMEDIES. The Agent may pursue any and all remedies provided for
hereunder, or under any one or more of the other Loan Documents.
(c) POWER OF ATTORNEY. For the purpose of exercising the rights granted by
this Section 9.2, as well as any and all other rights and remedies of the Agent,
the Borrower hereby irrevocably constitutes and appoints the Agent (or any agent
designated by the Agent) its true and lawful attorney-in-fact, with full power
of substitution, exercisable upon and during the continuance of any Event of
Default, to execute, acknowledge and deliver an instruments and to and perform
any acts in the name and on behalf of the Borrower.
SECTION 9.3. WRITTEN WAIVERS.
If a Default or an Event of Default is waived by the Lenders, in accordance
with the applicable provisions of this Agreement, in their sole discretion,
pursuant to a specific written instrument executed by an authorized officer of
the Agent, the Default or Event of Default so waived shall be deemed to have
never occurred.
SECTION 9.4. ALLOCATION OF PROCEEDS.
If an Event of Default shall have occurred and be continuing and maturity
of any of the Obligations has been accelerated, all payments received by the
Agent under any of the Loan Documents, in respect of any principal of or
interest on the Obligations or any other amounts payable by the Borrower
hereunder or thereunder, shall be applied in the following order and priority:
(a) amounts due to the Agent and the Lenders in respect of fees and
expenses due under Section 11.2.;
(b) payments of interest on the Loan, to be applied for the ratable
benefit of the Lenders;
(c) payments of principal of the Loan, to be applied for the ratable
benefit of the Lenders;
(d) amounts due the Agent and the Lenders pursuant to Sections 10.7.
and 11.9.;
(e) payments of all other amounts due and owing by the Borrower under
any of the Loan Documents, if any, to be applied for the ratable benefit of
the Lenders; and
(f) any amount remaining after application as provided above, shall be
paid to the Borrower or whomever else may be legally entitled thereto.
SECTION 9.5. PERFORMANCE BY AGENT.
If the Borrower shall fail to perform any covenant, duty or agreement
contained in any of the Loan Documents, the Agent may perform or attempt to
perform such covenant, duty or agreement on behalf of the Borrower after the
expiration of any cure or grace periods set forth herein. In such event, the
Borrower shall, at the request of the Agent, promptly pay any amount reasonably
expended by the Agent in such performance or attempted performance to the Agent,
together with interest thereon at the applicable Post-Default Rate from the date
36
of such expenditure until paid. Notwithstanding the foregoing, neither the Agent
nor any Lender shall have any liability or responsibility whatsoever for the
performance of any obligation of the Borrower under this Agreement or any other
Loan Document.
SECTION 9.6. RIGHTS CUMULATIVE.
The rights and remedies of the Agent and the Lenders under this Agreement
and each of the other Loan Documents shall be cumulative and not exclusive of
any rights or remedies which any of them may otherwise have under Applicable
Law. In exercising their respective rights and remedies the Agent and the
Lenders may be selective and no failure or delay by the Agent or any of the
Lenders in exercising any right shall operate as a waiver of it, nor shall any
single or partial exercise of any power or right preclude its other or further
exercise or the exercise of any other power or right.
ARTICLE X. THE AGENT
SECTION 10.1. AUTHORIZATION AND ACTION.
Each Lender hereby appoints and authorizes the Agent to take such action as
contractual representative on such Lender's behalf and to exercise such powers
under this Agreement and the other Loan Documents as are specifically delegated
to the Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. Not in limitation of the foregoing, each Lender
authorizes and directs the Agent to enter into the Loan Documents for the
benefit of the Lenders. Each Lender hereby agrees that, except as otherwise set
forth herein, any action taken by the Requisite Lenders in accordance with the
provisions of this Agreement or the Loan Documents, and the exercise by the
Requisite Lenders of the powers set forth herein or therein, together with such
other powers as are reasonably incidental thereto, shall be authorized and
binding upon all of the Lenders. Nothing herein shall be construed to deem the
Agent a trustee or fiduciary for any Lender nor to impose on the Agent duties or
obligations other than those expressly provided for herein. At the request of a
Lender, the Agent will forward to such Lender copies or, where appropriate,
originals of the documents delivered to the Agent pursuant to this Agreement or
the other Loan Documents. The Agent will also furnish to any Lender, upon the
request of such Lender, a copy of any certificate or notice furnished to the
Agent by the Parent, the Borrower or Holding Trust or any other Affiliate of the
Parent, the Borrower, pursuant to this Agreement or any other Loan Document not
already delivered to such Lender pursuant to the terms of this Agreement or any
such other Loan Document. As to any matters not expressly provided for by the
Loan Documents (including, without limitation, enforcement or collection of any
of the Obligations), the Agent shall not be required to exercise any discretion
or take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Requisite Lenders (or all of the Lenders if explicitly
required under any other provision of this Agreement), and such instructions
shall be binding upon all Lenders and all holders of any of the Obligations;
provided, however, that, notwithstanding anything in this Agreement to the
contrary, the Agent shall not be required to take any action which exposes the
Agent to personal liability or which is contrary to this Agreement or any other
Loan Document or Applicable Law. Not in limitation of the foregoing, the Agent
shall not exercise any right or remedy it or the Lenders may have under any Loan
Document upon the occurrence of a Default or an Event of Default unless the
Requisite Lenders have so directed the Agent to exercise such right or remedy.
SECTION 10.2. AGENT'S RELIANCE, ETC.
Notwithstanding any other provisions of this Agreement or any other Loan
Documents, neither the Agent nor any of its directors, officers, agents,
employees or counsel shall be liable for any action taken or omitted to be taken
by it or them under or in connection with this Agreement or any other Loan
Document, except for its or their own gross negligence or willful misconduct.
Without limiting the generality of the foregoing, the Agent: (a) may treat the
payee of any Note as the holder thereof until the Agent receives written notice
of the assignment or transfer thereof signed by such payee and in form
satisfactory to the Agent; (b) may consult with legal counsel (including its own
counsel or counsel for the Parent, the Borrower or Holding Trust), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (c) makes no warranty or
37
representation to any Lender or any other Person and shall not be responsible to
any Lender or any other Person for any statements, warranties or representations
made by any Person in or in connection with this Agreement or any other Loan
Document; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any of
this Agreement or any other Loan Document or the satisfaction of any conditions
precedent under this Agreement or any Loan Document on the part of the Parent,
the Borrower or other Persons or inspect the property, books or records of the
Parent, the Borrower or any other Person; (e) shall not be responsible to any
Lender for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other Loan Document, any other
instrument or document furnished pursuant thereto or any collateral covered
thereby or the perfection or priority of any Lien in favor of the Agent on
behalf of the Lenders in any such collateral; and (f) shall incur no liability
under or in respect of this Agreement or any other Loan Document by acting upon
any notice, consent, certificate or other instrument or writing (which may be by
telephone or telecopy) believed by it to be genuine and signed, sent or given by
the proper party or parties.
SECTION 10.3. NOTICE OF DEFAULTS.
The Agent shall not be deemed to have knowledge or notice of the occurrence
of a Default or Event of Default unless the Agent has received notice from a
Lender, the Parent or the Borrower referring to this Agreement, describing with
reasonable specificity such Default or Event of Default and stating that such
notice is a "notice of default." If any Lender (excluding the Lender which is
also serving as the Agent) becomes aware of any Default or Event of Default, it
shall promptly send to the Agent such a "notice of default." Further, if the
Agent receives such a "notice of default", the Agent shall give prompt notice
thereof to the Lenders.
SECTION 10.4. FLEET AS LENDER.
Fleet, as a Lender, shall have the same rights and powers under this
Agreement and any other Loan Document as any other Lender and may exercise the
same as though it were not the Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Fleet in each case in its
individual capacity. Fleet and its affiliates may each accept deposits from,
maintain deposits or credit balances for, invest in, lend money to, act as
trustee under indentures of, serve as financial advisor to, and generally engage
in any kind of business with, the Parent, the Borrower or Holding Trust or any
other affiliate thereof as if it were any other bank and without any duty to
account therefor to the other Lenders. Further, the Agent and any affiliate may
accept fees and other consideration from the Parent or the Borrower for services
in connection with this Agreement and otherwise without having to account for
the same to the other Lenders. The Lenders acknowledge that, pursuant to such
activities, Fleet or its affiliates may receive information regarding the
Parent, the Borrower, Holding Trust and their respective Subsidiaries and
Affiliates (including information that may be subject to confidentiality
obligations in favor of such Person) and acknowledge that the Agent shall be
under no obligation to provide such information to them.
SECTION 10.5. APPROVALS OF LENDERS.
All communications from the Agent to any Lender requesting such Lender's
determination, consent, approval or disapproval (a) shall be given in the form
of a written notice to such Lender, (b) shall be accompanied by a description of
the matter or issue as to which such determination, approval, consent or
disapproval is requested, or shall advise such Lender where information, if any,
regarding such matter or issue may be inspected, or shall otherwise describe the
matter or issue to be resolved, (c) shall include, if reasonably requested by
such Lender and to the extent not previously provided to such Lender, written
materials and a summary of all oral information provided to the Agent by the
Parent or the Borrower in respect of the matter or issue to be resolved, and (d)
shall include the Agent's recommended course of action or determination in
respect thereof. Each Lender shall reply promptly, but in any event within 10
Business Days (or such lesser or greater period as may be specifically required
under the Loan Documents) of receipt of such communication. Except as otherwise
provided in this Agreement and except with respect to items requiring the
unanimous consent or approval of the Lenders under Section 11.6., unless a
Lender shall give written notice to the Agent that it specifically objects to
the recommendation or determination of the Agent (together with a written
explanation of the reasons behind such objection) within the applicable time
period for reply, such Lender shall be deemed to have conclusively approved of
or consented to such recommendation or determination.
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SECTION 10.6. LENDER CREDIT DECISION, ETC.
Each Lender expressly acknowledges and agrees that neither the Agent nor
any of its officers, directors, employees, agents, counsel, attorneys-in-fact or
other affiliates has made any representations or warranties as to the financial
condition, operations, creditworthiness, solvency or other information
concerning the business or affairs of the Parent, the Borrower, Holding Trust,
any of their respective Subsidiaries or any other Person to such Lender and that
no act by the Agent hereafter taken, including any review of the affairs of the
Borrower, Holding Trust or any Subsidiaries, shall be deemed to constitute any
such representation or warranty by the Agent to any Lender. Each Lender
acknowledges that it has, independently and without reliance upon the Agent, any
other Lender or counsel to the Agent, or any of their respective officers,
directors, employees and agents, and based on the financial statements of the
Parent, the Borrower, their respective Subsidiaries and Affiliates, and
inquiries of such Persons, its independent due diligence of the business and
affairs of the Parent, the Borrower and their respective Subsidiaries and other
Persons, its review of the Loan Documents, the legal opinions required to be
delivered to it hereunder, the advice of its own counsel and such other
documents and information as it has deemed appropriate, made its own credit and
legal analysis and decision to enter into this Agreement and the transactions
contemplated hereby. Each Lender also acknowledges that it will, independently
and without reliance upon the Agent, any other Lender or counsel to the Agent or
any of their respective officers, directors, employees and agents, and based on
such review, advice, documents and information as it shall deem appropriate at
the time, continue to make its own decisions in taking or not taking action
under the Loan Documents. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the Agent under
this Agreement or any of the other Loan Documents, the Agent shall have no duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Borrower, Holding Trust or any other Affiliate thereof
which may come into possession of the Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or other Affiliates. Each Lender
acknowledges that the Agent's legal counsel in connection with the transactions
contemplated by this Agreement is only acting as counsel to the Agent and is not
acting as counsel to such Lender.
SECTION 10.7. INDEMNIFICATION OF AGENT.
Each Lender agrees to indemnify the Agent (to the extent not reimbursed by
the Parent and the Borrower and without limiting the obligation of the Parent or
the Borrower to do so) pro rata in accordance with such Lender's respective
Ratable Share, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may at any time be imposed on, incurred
by, or asserted against the Agent (in its capacity as Agent but not as a Lender)
in any way relating to or arising out of the Loan Documents, any transaction
contemplated hereby or thereby or any action taken or omitted by the Agent under
the Loan Documents (collectively, "Indemnifiable Amounts"); provided, however,
that no Lender shall be liable for any portion of such Indemnifiable Amounts to
the extent resulting from the Agent's gross negligence or willful misconduct as
determined by a court of competent jurisdiction in a final, non-appealable
judgment or if the Agent fails to follow the written direction of the Requisite
Lenders unless such failure is pursuant to the reasonable advice of counsel of
which the Lenders have received notice. Without limiting the generality of the
foregoing but subject to the preceding proviso, each Lender agrees to reimburse
the Agent (to the extent not reimbursed by the Parent and the Borrower and
without limiting the obligation of the Parent or the Borrower to do so) promptly
upon demand for its ratable share of any out-of-pocket expenses (including
counsel fees of the counsel(s) of the Agent's own choosing) incurred by the
Agent in connection with the preparation, negotiation, execution, or enforcement
of, or legal advice with respect to the rights or responsibilities of the
parties under, the Loan Documents, any suit or action brought by the Agent to
enforce the terms of the Loan Documents and/or collect any Obligations, any
"lender liability" suit or claim brought against the Agent and/or the Lenders,
and any claim or suit brought against the Agent and/or the Lenders arising under
any Environmental Laws. Such out-of-pocket expenses (including counsel fees)
shall be advanced by the Lenders on the request of the Agent notwithstanding any
claim or assertion that the Agent is not entitled to indemnification hereunder
upon receipt of an undertaking by the Agent that the Agent will reimburse the
Lenders if it is actually and finally determined by a court of competent
jurisdiction that the Agent is not so entitled to indemnification. The
agreements in this Section shall survive the payment of the Loan and all other
amounts payable hereunder or under the other Loan Documents and the termination
39
of this Agreement. If the Parent or the Borrower shall reimburse the Agent for
any Indemnifiable Amount following payment by any Lender to the Agent in respect
of such Indemnifiable Amount pursuant to this Section, the Agent shall share
such reimbursement on a ratable basis with each Lender making any such payment.
SECTION 10.8. SUCCESSOR AGENT.
The Agent may resign at any time as Agent under the Loan Documents by
giving written notice thereof to the Lenders, the Parent and the Borrower. The
Agent may be removed as Agent under the Loan Documents for good cause by all of
the Lenders (other than the Lender then acting as the Agent) upon 30 days' prior
notice. Upon any such resignation or removal, the Requisite Lenders (other than
the Lender then acting as Agent, in the case of the removal of the Agent under
the immediately preceding sentence) shall have the right to appoint a successor
Agent which appointment shall, provided no Default or Event of Default shall
have occurred and be continuing, be subject to the Parent's and the Borrower's
approval, which approval shall not be unreasonably withheld or delayed (except
that the Parent and the Borrower shall, in all events, be deemed to have
approved each Lender and its affiliates as a successor Agent). If no successor
Agent shall have been so appointed in accordance with the immediately preceding
sentence, and shall have accepted such appointment, within 30 days after the
resigning Agent's giving of notice of resignation or the Lenders' removal of the
resigning Agent, then the resigning or removed Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a Lender, if any Lender shall
be willing to serve, and otherwise shall be a commercial bank having total
combined assets of at least $50,000,000,000. 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 under the Loan Documents. After any Agent's
resignation or removal hereunder as Agent, the provisions of this Article X.
shall continue to inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under the Loan Documents.
ARTICLE XI. MISCELLANEOUS
SECTION 11.1. NOTICES.
(a) GENERAL. Unless otherwise provided herein, communications provided for
hereunder shall be in writing and shall be mailed, telecopied or delivered as
follows:
If to the Parent or the Borrower:
CharterMac
c/o Charter Mac Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer and
Vice President - Capital Markets
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to (which shall not constitute notice)
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
40
If to the Agent:
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇
Mail Stop: MA5-503-04-16
with a copy to (which shall not constitute notice):
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esquire
If to a Lender:
To such Lender's address or telecopy number, as applicable, set
forth on its signature page hereto or in the applicable
Assignment and Acceptance Agreement,
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section. All such notices and other communications shall be effective (i) if
mailed, when received; (ii) if telecopied, when transmitted; or (iii) if hand
delivered, when delivered. Notwithstanding the immediately preceding sentence,
all notices or communications to the Agent or any Lender under Article II. shall
be effective only when actually received. Neither the Agent nor any Lender shall
incur any liability to the Borrower (nor shall the Agent incur any liability to
the Lenders) for acting upon any telephonic notice referred to in this Agreement
which the Agent or such Lender, as the case may be, believes in good faith to
have been given by a Person authorized to deliver such notice or for otherwise
acting in good faith hereunder.
(b) ▇▇▇▇▇▇ ▇▇▇. Without accepting or incurring any liability whatsoever for
its failure to do so, the Agent will endeavor to give contemporaneous notice (in
the manner set forth the above) to ▇▇▇▇▇▇ Mae of any written notice of an Event
of Default given by the Agent to the Borrower, addressed as follows (or at such
other address as shall be designated by ▇▇▇▇▇▇ ▇▇▇ in a written notice to the
Agent delivered in compliance with this Section and which specifically refers to
this provision of this Agreement):
▇▇▇▇▇▇ Mae
__________________________________
__________________________________
Fax No. __________________________
Attention:________________________
SECTION 11.2. EXPENSES.
The Parent and the Borrower agree (a) to pay or reimburse the Agent for all
of its reasonable out-of-pocket costs and expenses incurred in connection with
the preparation, negotiation and execution of, and any amendment, supplement or
modification to, any of the Loan Documents (including due diligence expenses and
travel expenses relating to closing), and the consummation of the transactions
contemplated thereby, including the reasonable fees and disbursements of counsel
to the Agent, (b) to pay or reimburse the Agent and the Lenders for all their
costs and expenses incurred in connection with the enforcement or preservation
of any rights under the Loan Documents, including the reasonable fees and
disbursements of their respective counsel (including the allocated fees and
expenses of in-house counsel) and any payments in indemnification or otherwise
payable by the Borrower to the Agent pursuant to the Loan Documents, (c) to pay,
and indemnify and hold harmless the Agent and the Lenders from, any and all
41
recording and filing fees and any and all liabilities with respect to, or
resulting from any failure to pay or delay in paying, documentary, stamp, excise
and other similar taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of any of the Loan
Documents, or consummation of any amendment, supplement or modification of, or
any waiver or consent under or in respect of, any Loan Document and (d) to the
extent not already covered by any of the preceding subsections, to pay or
reimburse the Agent and the Lenders for all their costs and expenses incurred in
connection with any bankruptcy or other proceeding of the type described in
Sections 9.1.(e) or 9.1.(f), including the reasonable fees and disbursements of
counsel to the Agent and any Lender, whether such fees and expenses are incurred
prior to, during or after the commencement of such proceeding or the
confirmation or conclusion of any such proceeding. If the Parent or the Borrower
shall fail to pay any amounts required to be paid by it pursuant to this
Section, the Agent and/or the Lenders may pay such amounts on behalf of the
Parent or the Borrower and deem the same to be Obligations owing hereunder.
SECTION 11.3. SETOFF.
Subject to Section 3.3. and in addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
the Agent, each Lender and each Participant are hereby authorized by the Parent
and the Borrower, at any time or from time to time during the continuance of an
Event of Default, without prior notice to the Parent or the Borrower or to any
other Person, any such notice being hereby expressly waived, but in the case of
a Lender or Participant subject to receipt of the prior written consent of the
Agent exercised in its sole discretion, to set off and 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)
and any other indebtedness at any time held or owing by the Agent, such Lender
or any affiliate of the Agent or such Lender, to or for the credit or the
account of the Parent or the Borrower against and on account of any of the
Obligations, irrespective of whether or not the Loan and all other Obligations
have been declared to be, or have otherwise become, due and payable as permitted
by Section 9.2., and although such obligations shall be contingent or unmatured.
SECTION 11.4. LITIGATION; JURISDICTION; OTHER MATTERS; WAIVERS.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN
OR AMONG THE PARENT, THE BORROWER, THE AGENT OR ANY OF THE LENDERS WOULD BE
BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY
AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE LENDERS, THE AGENT, THE PARENT AND THE BORROWER HEREBY WAIVES
ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE
IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY
PARTY HERETO ARISING OUT OF THIS AGREEMENT, THE NOTES, OR ANY OTHER LOAN
DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER
BETWEEN OR AMONG THE PARENT, THE BORROWER, THE AGENT OR ANY OF THE LENDERS OF
ANY KIND OR NATURE.
(b) EACH OF THE PARENT, THE BORROWER, THE AGENT AND EACH LENDER HEREBY
AGREES THAT ANY FEDERAL COURT LOCATED IN THE COMMONWEALTH OF MASSACHUSETTS OR,
AT THE OPTION OF THE AGENT, ANY STATE COURT LOCATED IN THE COMMONWEALTH OF
MASSACHUSETTS, SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR
DISPUTES BETWEEN OR AMONG THE PARENT, THE BORROWER, THE AGENT OR ANY OF THE
LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE LOAN, THE
NOTES OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM.
THE PARENT, THE BORROWER AND EACH OF THE LENDERS EXPRESSLY SUBMIT AND CONSENT IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH
COURTS. EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT
SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND EACH AGREES
42
NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH IN THIS SECTION
SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR ANY
LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN
SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.
(c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH
THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES
THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOAN AND ALL OTHER AMOUNTS PAYABLE
HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS AND THE TERMINATION OF THIS
AGREEMENT.
SECTION 11.5. 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 permitted
assigns, except that neither the Parent nor the Borrower may assign or otherwise
transfer any of its rights or obligations under this Agreement without the prior
written consent of all Lenders and any such assignment or other transfer to
which all of the Lenders have not so consented shall be null and void.
(b) Any Lender may make, carry or transfer its Ratable Share of the Loan
at, to or for the account of any of its branch offices or the office of an
affiliate of such Lender except to the extent such transfer would result in
increased costs to the Borrower.
(c) Any Lender may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests in the
Obligations owing to such Lender; provided, however, (i) any such participating
interest must be for a constant and not a varying percentage interest, (ii) no
Lender may grant a participating interest in its Ratable Share of the Loan in an
amount less than $5,000,000 and (iii) after giving effect to any such
participation by a Lender, the amount of its Ratable Share of the Loan in which
it has not granted any participating interests must be equal to $5,000,000 and
integral multiples of $1,000,000 in excess thereof. Except as otherwise provided
in Section 11.3., no Participant shall have any rights or benefits under this
Agreement or any other Loan Document. In the event of any such grant by a Lender
of a participating interest to a Participant, such Lender shall remain
responsible for the performance of its obligations hereunder, and the Parent,
the Borrower and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement pursuant to which any Lender may grant such a
participating interest shall provide that such Lender shall retain the sole
right and responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided, however, such Lender may
agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase, or extend the term or extend the time of the
Loan, (ii) extend the date fixed for the payment of principal of or interest on
the Loan or portion thereof owing to such Lender, (iii) reduce the amount of any
such payment of principal or (iv) reduce the rate at which interest is payable
thereon. An assignment or other transfer which is not permitted by subsection
(d) or (e) below shall be given effect for purposes of this Agreement only to
the extent of a participating interest granted in accordance with this
subsection (c). The selling Lender shall notify the Agent, the Parent and the
Borrower of the sale of any participation hereunder and, if requested by the
Agent, certify to the Agent that such participation is permitted hereunder.
(d) Any Lender may with the prior written consent of the Agent and, so long
as no Default or Event of Default shall have occurred and be continuing, the
Borrower (which consent, in each case, shall not be unreasonably withheld),
assign to one or more Eligible Assignees (each an "Assignee") all or a portion
of its Ratable Share of the Loan and its other rights and obligations under this
Agreement and the Notes; provided, however, (i) no such consent by the Borrower
shall be required in the case of any assignment to another Lender or any
affiliate of such Lender or another Lender and no such consent by the Agent
shall be required in the case of any assignment by a Lender to any affiliate of
such Lender; (ii) any partial assignment shall be in an amount at least equal to
$5,000,000 and integral multiples of $1,000,000 in excess thereof and after
giving effect to such assignment the assigning Lender retains a Ratable Share of
the Loan having an aggregate outstanding principal balance, of at least
43
$5,000,000 and integral multiples of $1,000,000 in excess thereof; (iii) each
such assignment shall be effected by means of an Assignment and Acceptance
Agreement; and (iv) after giving effect to any such assignment by the Lender
then acting as Agent, such Lender shall retain a Ratable Share of the Loan
greater than or equal to the lesser of (x) the Ratable Share of such Lender as
of the Agreement Date (or the date such Lender first became a party to this
Agreement ) or (y) the Ratable Share of any other Lender (other than any Lender
whose Ratable Share has increased as a result of a merger or other combination
with another Lender). Upon execution and delivery of such instrument and payment
by such Assignee to such transferor Lender of an amount equal to the purchase
price agreed between such transferor Lender and such Assignee, such Assignee
shall be deemed to be a Lender party to this Agreement as of the effective date
of the Assignment and Acceptance Agreement and shall have all the rights and
obligations of a Lender with a Ratable Share of the Loan as set forth in such
Assignment and Acceptance Agreement, and the transferor Lender shall be released
from its obligations hereunder to a corresponding extent, and no further consent
or action by any party shall be required. Upon the consummation of any
assignment pursuant to this subsection (d), the transferor Lender, the Agent and
the Borrower shall make appropriate arrangements so that new Notes are issued to
the Assignee and such transferor Lender, as appropriate. In connection with any
such assignment, the transferor Lender shall pay to the Agent an administrative
fee for processing such assignment in the amount of $5,000.
(e) The Agent shall maintain at the Principal Office a copy of each
Assignment and Acceptance Agreement delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Ratable Share of the Loan of each Lender from time to time (the "Register"). The
Agent shall give each Lender, the Parent and the Borrower notice of the
assignment by any Lender of its rights as contemplated by this Section. The
Parent, the Borrower, the Agent and the Lenders may treat each Person whose name
is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register and copies of each Assignment and Acceptance Agreement
shall be available for inspection by the Parent, the Borrower or any Lender at
any reasonable time and from time to time upon reasonable prior notice to the
Agent. Upon its receipt of an Assignment and Acceptance Agreement executed by an
assigning Lender, together with each Note subject to such assignment, the Agent
shall, if such Assignment and Acceptance Agreement has been completed and if the
Agent receives the processing and recording fee described in subsection (d)
above, (i) accept such Assignment and Acceptance Agreement, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Parent and the Borrower.
(f) In addition to the assignments and participations permitted under the
foregoing provisions of this Section, any Lender may assign and pledge all or
any portion of its Ratable Share of the Loan and its Note to any Federal Reserve
Bank as collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank, and such Ratable Share of the Loan and Note
shall be fully transferable as provided therein. No such assignment shall
release the assigning Lender from its obligations hereunder.
(g) A Lender may furnish any information concerning the Parent, the
Borrower, Holding Trust or any of their respective Subsidiaries in the
possession of such Lender from time to time to Assignees and Participants
(including prospective Assignees and Participants) subject to compliance with
Section 11.8.
(h) Anything in this Section to the contrary notwithstanding, no Lender may
assign or participate any interest in any Loan held by it hereunder to the
Parent, the Borrower, Holding Trust or any of their respective Affiliates or
Subsidiaries.
(i) Each Lender agrees that, without the prior written consent of the
Parent and the Borrower and the Agent, it will not make any assignment hereunder
in any manner or under any circumstances that would require registration or
qualification of, or filings in respect of, the Loan or any Note under the
Securities Act or any other securities laws of the United States of America or
of any other jurisdiction.
SECTION 11.6. AMENDMENTS.
Except as otherwise expressly provided in this Agreement, any consent or
approval required or permitted by this Agreement or any other Loan Document to
44
be given by the Lenders may be given, and any term of this Agreement or of any
other Loan Document may be amended, and the performance or observance by the
Parent, the Borrower or Holding Trust or any of their respective Subsidiaries of
any terms of this Agreement or such other Loan Document or the continuance of
any Default or Event of Default may be waived (either generally or in a
particular instance and either retroactively or prospectively) with, but only
with, the written consent of the Requisite Lenders (and, in the case of an
amendment to any Loan Document, the written consent of the Borrower).
Notwithstanding the foregoing, no amendment, waiver or consent shall, unless in
writing, and signed by all of the Lenders (or the Agent at the written direction
of the Lenders), do any of the following: (i) reduce the principal of, or
interest rates that have accrued or that will be charged on the outstanding
principal amount of, the Loan, the Fees or any other Obligations; (ii) reduce
the amount of any Fees payable hereunder; (iii) postpone any date fixed for any
payment of any principal of, or interest on, the Loan or any other Obligations;
(iv) amend or otherwise modify the provisions of Section 3.2 or 8.1.; or (v)
modify the definition of the term "Requisite Lenders" or modify in any other
manner the number or percentage of the Lenders required to make any
determinations or waive any rights hereunder or to modify any provision hereof,
including without limitation, any modification of this Section if such
modification would have such effect. Further, no amendment, waiver or consent
unless in writing and signed by the Agent, in addition to the Lenders required
hereinabove to take such action, shall affect the rights or duties of the Agent
under this Agreement or any of the other Loan Documents. No waiver shall extend
to or affect any obligation not expressly waived or impair any right consequent
thereon and any amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose set forth therein. No course of
dealing or delay or omission on the part of the Agent or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. Except as otherwise explicitly provided for herein or in
any other Loan Document, no notice to or demand upon the Parent or the Borrower
shall entitle the Parent or the Borrower to any other or further notice or
demand in similar or other circumstances.
SECTION 11.7. NONLIABILITY OF AGENT AND LENDERS.
The relationship between the Borrower and the Lenders and the Agent shall
be solely that of borrower and lender. Neither the Agent nor any Lender shall
have any fiduciary responsibilities to the Parent or the Borrower and no
provision in this Agreement or in any of the other Loan Documents, and no course
of dealing between or among any of the parties hereto, shall be deemed to create
any fiduciary duty owing by the Agent or any Lender to any Lender, the Parent,
the Borrower or Holding Trust or any of their respective Subsidiaries. Neither
the Agent nor any Lender undertakes any responsibility to the Parent or the
Borrower to review or inform the Parent or the Borrower of any matter in
connection with any phase of the Parent's or the Borrower's business or
operations.
SECTION 11.8. CONFIDENTIALITY.
Except as otherwise provided by Applicable Law, the Agent and each Lender
shall utilize all non-public information obtained pursuant to the requirements
of this Agreement which has been identified as confidential or proprietary by
the Parent or the Borrower in accordance with its customary procedure for
handling confidential information of this nature and in accordance with safe and
sound banking practices but in any event may make disclosure: (a) to any of
their respective affiliates (provided they shall agree to keep such information
confidential in accordance with the terms of this Section); (b) as reasonably
requested by any bona fide Assignee, Participant or other transferee in
connection with the contemplated transfer of any part of the Loan or
participations therein as permitted hereunder (provided they shall agree to keep
such information confidential in accordance with the terms of this Section); (c)
as required or requested by any Governmental Authority or representative thereof
or pursuant to legal process or in connection with any legal proceedings; (d) to
the Agent's or such Lender's independent auditors and other professional
advisors (provided they shall be notified of the confidential nature of the
information); (e) after the happening and during the continuance of an Event of
Default, to any other Person, in connection with the exercise by the Agent or
the Lenders of rights hereunder or under any of the other Loan Documents; and
(f) to the extent such information (x) becomes publicly available other than as
a result of a breach of this Section or (y) becomes available to the Agent or
any Lender on a nonconfidential basis from a source other than the Parent or the
Borrower or any Affiliate. Notwithstanding anything herein or in any prior
agreement of the parties to the contrary, any party to this Agreement (and any
employee, representative, or other agent of any party to this Agreement) may
disclose to any and all persons, without limitation of any kind, the tax
treatment and tax structure of the transactions contemplated by this Agreement
and all materials of any kind (including opinions or other tax analyses) that
45
are provided to it relating to such tax treatment and tax structure; provided,
that the foregoing shall not permit disclosure of information in violation of
federal or state securities laws or disclosure of the identity of the parties
hereto.
SECTION 11.9. INDEMNIFICATION.
(a) The Parent and the Borrower shall and hereby agree to indemnify, defend
and hold harmless the Agent, any affiliate of the Agent and each of the Lenders
and their respective directors, officers, shareholders, agents, employees and
counsel (each referred to herein as an "Indemnified Party") from and against any
and all losses, costs, claims, damages, liabilities, deficiencies, judgments or
expenses of every kind and nature (including, without limitation, amounts paid
in settlement, court costs and the fees and disbursements of counsel incurred in
connection with any litigation, investigation, claim or proceeding or any advice
rendered in connection therewith, but excluding losses, costs, claims, damages,
liabilities, deficiencies, judgments or expenses indemnification in respect of
which is specifically covered by Section 3.10. or 4.1. or expressly excluded
from the coverage of such Sections) incurred by an Indemnified Party in
connection with, arising out of, or by reason of, any suit, cause of action,
claim, arbitration, investigation or settlement, consent decree or other
proceeding (the foregoing referred to herein as an "Indemnity Proceeding") which
is in any way related directly or indirectly to: (i) this Agreement or any other
Loan Document or the transactions contemplated thereby; (ii) the making of the
Loan; (iii) any actual or proposed use by the Borrower of the proceeds of the
Loan; (iv) the Agent's or any Lender's entering into this Agreement; (v) the
fact that the Agent and the Lenders have established the credit facility
evidenced hereby in favor of the Borrower; (vi) the fact that the Agent and the
Lenders are creditors of the Parent and the Borrower and have or are alleged to
have information regarding the financial condition, strategic plans or business
operations of the Parent, the Borrower and their respective Subsidiaries; (vii)
the fact that the Agent and the Lenders are material creditors of the Parent and
the Borrower and are alleged to influence directly or indirectly the business
decisions or affairs of the Parent, the Borrower and their respective
Subsidiaries or their financial condition; (viii) the exercise of any right or
remedy the Agent or the Lenders may have under this Agreement or the other Loan
Documents; provided, however, that neither the Parent nor the Borrower shall be
obligated to indemnify any Indemnified Party for any acts or omissions of such
Indemnified Party (or any of its Affiliates) in connection with matters
described in clauses (vi), (vii) or (viii) of this Section 11.9.(a) that
constitute gross negligence or willful misconduct; or (ix) any violation or
non-compliance by the Parent, the Borrower or any of their respective
Subsidiaries of any Applicable Law (including any Environmental Law) including,
but not limited to, any Indemnity Proceeding commenced by (A) the Internal
Revenue Service or state taxing authority or (B) any Governmental Authority or
other Person under any Environmental Law, including any Indemnity Proceeding
commenced by a Governmental Authority or other Person seeking remedial or other
action to cause the Parent, the Borrower or their respective Subsidiaries (or
its respective properties) (or the Agent and/or the Lenders as successors to the
Borrower) to be in compliance with such Environmental Laws.
(b) The Parent's and the Borrower's indemnification obligations under this
Section shall apply to all Indemnity Proceedings arising out of, or related to,
the foregoing whether or not an Indemnified Party is a named party in such
Indemnity Proceeding. In this connection, this indemnification shall cover all
costs and expenses of any Indemnified Party in connection with any deposition of
any Indemnified Party or compliance with any subpoena (including any subpoena
requesting the production of documents). This indemnification shall, among other
things, apply to any Indemnity Proceeding commenced by other creditors of the
Parent, the Borrower or any of their respective Subsidiaries, any shareholder of
the Parent, the Borrower or any of their respective Subsidiaries (whether such
shareholder(s) are prosecuting such Indemnity Proceeding in their individual
capacity or derivatively on behalf of the Parent or the Borrower), any account
debtor of the Parent, the Borrower or any of their respective Subsidiaries or by
any Governmental Authority.
(c) This indemnification shall apply to any Indemnity Proceeding arising
during the pendency of any bankruptcy proceeding filed by or against the Parent,
the Borrower and/or any of their respective Subsidiaries.
(d) All out-of-pocket fees and expenses of, and all amounts paid to
third-persons by, an Indemnified Party shall be advanced by the Parent or the
Borrower at the request of such Indemnified Party notwithstanding any claim or
assertion by the Parent or the Borrower that such Indemnified Party is not
46
entitled to indemnification hereunder upon receipt of an undertaking by such
Indemnified Party that is reasonably satisfactory to the Parent and the Borrower
that such Indemnified Party will reimburse the Parent or the Borrower if it is
actually and finally determined by a court of competent jurisdiction that such
Indemnified Party is not so entitled to indemnification hereunder.
(e) An Indemnified Party may conduct its own investigation and defense of,
and may formulate its own strategy with respect to, any Indemnity Proceeding
covered by this Section and, as provided above, all costs and expenses incurred
by such Indemnified Party shall be reimbursed by the Parent or the Borrower. No
action taken by legal counsel chosen by an Indemnified Party in investigating or
defending against any such Indemnified Proceeding shall vitiate or in any way
impair the obligations and duties of the Parent and the Borrower hereunder to
indemnify and hold harmless each such Indemnified Party; provided, however, that
(i) if the Parent or the Borrower is required to indemnify an Indemnified Party
pursuant hereto and (ii) the Parent or the Borrower has provided evidence
reasonably satisfactory to such Indemnified Party that the Parent or the
Borrower has the financial wherewithal to reimburse such Indemnified Party for
any amount paid by such Indemnified Party with respect to such Indemnified
Proceeding, such Indemnified Party shall not settle or compromise any such
Indemnified Proceeding without the prior written consent of the Parent and the
Borrower (which consent shall not be unreasonably withheld or delayed).
(f) If and to the extent that the obligations of the Borrower hereunder are
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under Applicable Law.
(g) The Borrower's obligations hereunder shall survive any termination of
this Agreement and the other Loan Documents and the payment in full in cash of
the Obligations, and are in addition to, and not in substitution of, any other
of their obligations set forth in this Agreement or any other Loan Document to
which it is a party.
SECTION 11.10. TERMINATION; SURVIVAL.
At such time as all Obligations (other than obligations which survive as
provided in the following sentence) have been paid and satisfied in full, this
Agreement shall terminate. The indemnities to which the Agent and the Lenders
are entitled under the provisions of Sections 3.10., 4.1., 4.4., 10.7., 11.2.
and 11.9. and any other provision of this Agreement and the other Loan
Documents, and the provisions of Section 11.4., shall continue in full force and
effect and shall protect the Agent and the Lenders (i) notwithstanding any
termination of this Agreement, or of the other Loan Documents, against events
arising after such termination as well as before and (ii) at all times after any
such party ceases to be a party to this Agreement with respect to all matters
and events existing on or prior to the date such party ceased to be a party to
this Agreement.
SECTION 11.11. SEVERABILITY OF PROVISIONS.
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 11.12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS APPLICABLE TO CONTRACTS EXECUTED, AND
TO BE FULLY PERFORMED, IN SUCH STATE.
47
SECTION 11.13. COUNTERPARTS.
This Agreement and any amendments, waivers, consents or supplements may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which counterparts together shall constitute but
one and the same instrument.
SECTION 11.14. OBLIGATIONS WITH RESPECT TO SUBSIDIARIES.
The obligations of the Parent and the Borrower to direct or prohibit the
taking of certain actions by their respective Subsidiaries as specified herein
shall be absolute and not subject to any defense the Parent or the Borrower may
have that neither the Parent nor the Borrower controls their respective
Subsidiaries.
SECTION 11.15. ENTIRE AGREEMENT.
This Agreement, the Notes, and the other Loan Documents referred to herein
embody the final, entire agreement among the parties hereto and supersede any
and all prior commitments, agreements, representations, and understandings,
whether written or oral, relating to the subject matter hereof and thereof and
may not be contradicted or varied by evidence of prior, contemporaneous, or
subsequent oral agreements or discussions of the parties hereto. There are no
oral agreements among the parties hereto.
SECTION 11.16. CONSTRUCTION.
The Agent, the Parent, the Borrower and each Lender acknowledge that each
of them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement and the other Loan Documents
with its legal counsel and that this Agreement and the other Loan Documents
shall be construed as if jointly drafted by the Agent, the Parent, the Borrower
and each Lender.
48
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to
be executed by their authorized officers all as of the day and year first above
written.
CHARTERMAC
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------
Title: Chief Executive Officer
-----------------------
CHARTER MAC CORPORATION
By: /s/▇▇▇▇▇▇ ▇▇▇▇
--------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
-----------
Title: Vice President
--------------
FLEET NATIONAL BANK, as Agent and as a Lender
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇
----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-------------
Title: Senior Vice President
---------------------
LENDING OFFICE (ALL TYPES):
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇
Mail Stop: MA5-503-04-16
S-1
Joinder of
CM Holding Trust
Reference is made to that certain Amended and Restated Credit Agreement
dated as of July 16, 2004 (the "Agreement") by and among CharterMac, as Parent,
Charter Mac Corporation, as Borrower, Fleet National Bank, as Agent for a
syndicate of Lenders, and such Lenders. Unless otherwise defined herein, all
capitalized terms used herein shall have the meaning set forth in the Agreement.
Holding Trust acknowledges that it is a direct wholly owned Subsidiary of
the Parent, and that the Agent and the Lenders are relying on certain
representations, warranties and covenants of Holding Trust as an inducement for
the Agent and the Lenders to enter into the Agreement and to make the Loan to
the Borrower in accordance with the terms and conditions thereof. Accordingly,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Holding Trust hereby joins in the Agreement for the
following purposes (the "Joinder"):
1. Holding Trust acknowledges and confirms the warranties and
representations made specifically on its behalf by the Parent and the Borrower
pursuant to the Agreement.
2. Holding Trust agrees to comply with the affirmative and negative
covenants set forth in Articles VII and VIII of the Agreement which specifically
make reference to an obligation of Holding Trust.
3. Holding Trust acknowledges and agrees that an Event of Default shall
occur if (x) Holding Trust fails to comply with the affirmative and negative
covenants set forth in Articles VII and VIII of the Agreement which specifically
make reference to an obligation of Holding Trust or (y) any of the events
described in Section 9.1 of the Agreement which make specific reference to
Holding Trust shall have occurred.
4. By accepting this Agreement and this Joinder, the Agent and the Lenders
acknowledge and agree that Holding Trust does not have any, and that Holding
Trust shall never have any, personal liability to the Agent or any Lender on
account of any Default or Event of Default under the Agreement or a breach by
Holding Trust of any of the provisions of the Agreement which are incorporated
into this Joinder by reference, and that the Agent's and Lenders' sole recourse
on account of the occurrence of any of the foregoing events shall be to exercise
their rights and remedies against the Parent and the Collateral as provided for
in the Agreement and the other Loan Documents.
J-1A
Executed as of July 16, 2004
CM HOLDING TRUST, a Delaware statutory trust
By: Charter Mac Corporation,
Its Manager
By: /s/▇▇▇▇▇▇ ▇▇▇▇
--------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
-----------
Title: Vice President
--------------
J-2A
Joinder of
CM Investor LLC
Reference is made to that certain Amended and Restated Credit Agreement
dated as of July 16, 2004 (the "Agreement") by and among CharterMac, as Parent,
Charter Mac Corporation, as Borrower, Fleet National Bank, as Agent for a
syndicate of Lenders, and such Lenders. Unless otherwise defined herein, all
capitalized terms used herein shall have the meaning set forth in the Agreement.
CM Investor acknowledges that it is a direct wholly-owned Subsidiary of the
Borrower, and that the Agent and the Lenders are relying on certain
representations, warranties and covenants of CM Investor as an inducement for
the Agent and the Lenders to enter into the Agreement and to make the Loan to
the Borrower in accordance with the terms and conditions thereof. Accordingly,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, CM Investor hereby joins in the Agreement for the following
purposes (the "Joinder"):
1. CM Investor acknowledges and confirms the warranties and representations
made specifically on its behalf by the Parent and the Borrower pursuant to the
Agreement.
2. CM Investor agrees to comply with the affirmative and negative covenants
set forth in Articles VII and VIII of the Agreement which specifically make
reference to CM Investor.
Executed as of July 16, 2004
CM INVESTOR LLC, a Delaware limited liability
company
By: Charter Mac Corporation,
Its Sole Member
By: /s/▇▇▇▇▇▇ ▇▇▇▇
--------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
-----------
Title: Vice President
--------------
J-1B
EXECUTION COUNTERPART
FIRST AMENDMENT
---------------
TO
--
AMENDED AND RESTATED
--------------------
CREDIT AGREEMENT
----------------
THIS FIRST AMENDMENT (this "Amendment") is entered into as of July 15,
2005, among: CHARTERMAC, a Delaware statutory trust (the "Parent"); CHARTER MAC
CORPORATION, a Delaware corporation (the "Borrower"); and Bank of America, N.A.
(successor by merger to Fleet National Bank) as the sole Lender and as Agent.
RECITALS
Reference is made to the following facts that constitute the background of
this Amendment:
A. The Borrower, the Parent, the Agent and the Lender entered into that
certain Amended and Restated Credit Agreement, dated as of July 16,
2004 (as amended or restated from time to time, the "Agreement").
Capitalized terms used herein and not otherwise defined herein shall
have the same meanings herein as ascribed to them in the Agreement;
B. The Borrower and the Parent have requested that the Agent and Lender
permit the Borrower to exercise the Extension Option under the
Agreement; and
C. The Agent and the Lender are willing to permit the Borrower to
exercise the Extension Option solely upon the terms and conditions set
forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing Recitals and of the
representations, warranties, covenants and conditions set forth herein and in
the Agreement, the Borrower, the Parent, the Agent and the Lender hereby agree
as follows:
1. AMENDMENTS TO THE AGREEMENT. In compliance with Section 11.6 of the
Agreement, the Borrower, the Parent, the Agent and the Lender agree that the
Agreement is hereby amended as follows:
1.1 BANK OF AMERICA. After the date hereof, all references to the term
"Fleet National Bank" shall be amended to mean "Bank of America, N.A.,
successor by merger to Fleet National Bank."
1.2 TERMINATION DATE. The definition of "Termination Date" set forth
in Section 1.1 of the Agreement is hereby deleted and replaced by the
following:
"'Termination Date' means August 1, 2005, unless accelerated pursuant
to the terms hereof or extended pursuant to Section 2.4(b)."
1.3 SECTION 2.4(B). Without in any way changing any of the other
provisions of Section 2.4(b) of the Agreement, clauses (ii) and (iv) of
such Section 2.4(b) are each hereby deleted and replaced by the following:
"(ii) at least one Business Day prior to the commencement of the
Extension Period, the Borrower shall have paid to the Agent, for
the ratable benefit of the Lenders, an extension fee in an amount
equal to 0.0625% (6.25 basis points) multiplied by the
outstanding principal amount of the Loan as of the date of the
Notice to Extend.
. . . .
(iv) the outstanding principal amount of the Loan as of the date
of the Commencement of the Extension Period shall not exceed
$60,000,000."
2. EXERCISE OF EXTENSION OPTION. The parties hereto hereby acknowledge and
agree that by executing and delivering this Amendment the Borrower has exercised
its Extension Option to extend the Termination Date under the Agreement for an
Extension Period ending on October 31, 2005. In furtherance of the foregoing,
the parties further acknowledge and agree that this Amendment shall constitute
the Notice to Extend contemplated by Section 2.4(b) of the Agreement and that
the Agent and the Lender hereby waive the requirement that such Notice to Extend
be delivered at least 30 days prior to the Termination Date as set forth in such
Section 2.4(b).
3. WARRANTIES, REPRESENTATIONS, COVENANTS AND DISCLOSURES.
------------------------------------------------------
3.1 WARRANTIES AND REPRESENTATIONS. The Borrower and the Parent hereby
acknowledge that pursuant to this Amendment, each of them makes, jointly
and severally with the other, all the representations and warranties as set
forth in ARTICLE VI of the Agreement as of the date hereof and upon the
date of the commencement of the Extension Period (except for changes that
are not singly or in the aggregate materially adverse resulting from
transactions contemplated and permitted by the Loan Agreement and the other
Loan Documents, and changes occurring in the ordinary course of business
that singly or in the aggregate are not materially adverse, and except that
representations and warranties relating expressly to an earlier date are
reaffirmed as of such date).
3.2 COVENANTS. The Borrower and the Parent hereby acknowledge that
pursuant to this Amendment, each of them makes, jointly and severally with
the other, each covenant and agreement set forth in ARTICLES VII and VIII
of the Agreement.
3.3 SCHEDULES. All of the Schedules pertaining to the Borrower or the
Parent attached to the Agreement are hereby supplemented to include the
information and disclosures pertaining to the Borrower or the Parent as set
forth in the Disclosure Schedule attached to this Amendment.
4. REAFFIRMATION OF GUARANTY. The Parent hereby acknowledges the terms,
provisions and intent of this Amendment and acknowledges and agrees that all of
the provisions of that certain Amended and Restated Guaranty, dated as of July
26, 2004, made by the Parent in favor and for the benefit of the Agent and the
Loan shall continue to be its valid and binding obligations, enforceable in
accordance with their terms, including without limitation, with respect to any
Obligations of the Borrower under the Agreement as contemplated in this
Amendment.
5. GENERAL.
-------
5.1 RATIFICATION. Except as hereby amended, the Agreement and all
other Loan Documents and each provision thereof are hereby ratified and
confirmed in every respect and shall continue in full force and effect, and
this Amendment shall not be, and shall not be deemed to be, a waiver of any
Default or of any covenant, term or provision of the Agreement or other
Loan Documents.
5.2 COUNTERPARTS. This Amendment may be executed and delivered in any
number of counterparts with the same effect as if the signatures hereto and
thereto were upon the same instrument.
5.3 AMENDMENT AS LOAN DOCUMENT. Each party hereto agrees and
acknowledges that this Amendment constitutes a "Loan Document" under and as
defined in the Agreement.
5.4 GOVERNING LAW. THIS AMENDMENT SHALL IN ALL RESPECTS BE GOVERNED,
CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
2
5.5 SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon each
of the Borrower, the Parent, the Lender and the Agent and their respective
successors and assigns, and shall inure to the benefit of each of the
Borrower, the Guarantor, the Lender and the Agent.
5.6 HEADINGS. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
5.7 NO COURSE OF DEALING. The Agent and the Lender have entered into
this Amendment on the express understanding with the Borrower and the
Parent that in entering into this Amendment the Agent and the Lender are
not establishing any course of dealing with the Borrower and the Parent.
The Agent's and the Lender's right to require strict performance with all
of the terms and the conditions of Agreement and the other Loan Documents
shall not in any way be impaired by the execution of this Amendment.
Neither the Agent nor the Lender shall be obligated in any manner to
execute any further amendments or waivers and if such waivers or amendments
are requested in the future, assuming the terms and conditions thereof are
satisfactory to them, the Agent and the Lenders may require the payment of
fees in connection therewith.
[Remainder of page intentionally left blank; signatures appear on next page]
3
IN WITNESS WHEREOF this Amendment has been duly executed and delivered as a
sealed instrument as of the date first set forth above.
BORROWER: CHARTER MAC CORPORATION
By: /s/▇▇▇▇▇▇ ▇▇▇▇
--------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
-----------
Title: Senior Vice President
---------------------
PARENT: CHARTERMAC
By: Charter Mac Corporation, its
managing member
By: /s/▇▇▇▇▇▇ ▇▇▇▇
--------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
-----------
Title: Senior Vice President
---------------------
AGENT AND LENDER: BANK OF AMERICA, N.A.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇
----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-------------
Title: Senior Vice President
---------------------
S-1
DISCLOSURE SCHEDULE
-------------------
None.
A-2
SECOND AMENDMENT
----------------
TO
--
AMENDED AND RESTATED
--------------------
CREDIT AGREEMENT
----------------
THIS SECOND AMENDMENT (this "Amendment") is entered into as of October 31,
2005, among: CHARTERMAC, a Delaware statutory trust (the "Parent"); CHARTER MAC
CORPORATION, a Delaware corporation (the "Borrower"); and BANK OF AMERICA, N.A.
(successor by merger to Fleet National Bank) as the sole Lender and as Agent.
RECITALS
Reference is made to the following facts that constitute the background of
this Amendment:
A. The Borrower, the Parent, the Agent and the Lender entered into that
certain Amended and Restated Credit Agreement, dated as of July 16,
2004 (as previously amended by a First Amendment, dated as of July 15,
2005 (the "First Amendment"), the "Agreement"). Capitalized terms used
herein and not otherwise defined herein shall have the same meanings
herein as ascribed to them in the Agreement;
B. The Borrower and the Parent have requested that the Agent and Lender
agree to extend the Termination Date under the Agreement; and
C. The Agent and the Lender are willing to extend the Termination Date
solely upon the terms and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing Recitals and of the
representations, warranties, covenants and conditions set forth herein and in
the Agreement, the Borrower, the Parent, the Agent and the Lender hereby agree
as follows:
1. AMENDMENTS TO THE AGREEMENT. In compliance with Section 11.6 of the
Agreement, the Borrower, the Parent, the Agent and the Lender agree that,
notwithstanding the fact that the Borrower exercised its Extension Option
pursuant to the First Amendment, the definition of "Termination Date" set forth
in Section 1.1 of the Agreement is hereby deleted and replaced by the following:
"'Termination Date' means January 3, 2006 unless accelerated pursuant to
the terms hereof."
2. ACKNOWLEDGEMENT. The Borrower and the Parent hereby acknowledge that the
Borrower does not have any further right to extend the Termination Date pursuant
to Section 2.4(b) of the Agreement.
3. EXTENSION FEE. In consideration of the extension contemplated in Section
1 above, the Borrower shall pay to the Agent, for the ratable benefit of the
Lenders, an extension fee in the amount of $24,000, which fee shall be due and
payable, and, subject to the next sentence, fully earned and nonrefundable,
simultaneously with the execution and delivery of this Amendment. If the
Borrower refinances the Loan (the "Refinancing") prior to the Termination Date,
as contemplated by the proposed BofA Term Sheet dated October 18, 2005 provided
to the Borrower and Parent (the "Term Sheet"), Borrower shall receive a per diem
credit against the "Facility Fee" (as defined in the Term Sheet) of $375.00 for
each day that the execution and delivery of the Refinancing precedes the
Termination Date.
4. WARRANTIES, REPRESENTATIONS, COVENANTS AND DISCLOSURES.
------------------------------------------------------
4.1 WARRANTIES AND REPRESENTATIONS. The Borrower and the Parent hereby
acknowledge that pursuant to this Amendment, each of them makes, jointly
and severally with the other, all the representations and warranties as set
forth in ARTICLE VI of the Agreement as of the date hereof (except (i) for
changes that are not singly or in the aggregate materially adverse
resulting from transactions contemplated and permitted by the Loan
Agreement and the other Loan Documents, and changes occurring in the
ordinary course of business that singly or in the aggregate are not
materially adverse, and (ii) that representations and warranties relating
expressly to an earlier date are reaffirmed as of such date).
4.2 COVENANTS. The Borrower and the Parent hereby acknowledge that
pursuant to this Amendment, each of them makes, jointly and severally with
the other, each covenant and agreement set forth in ARTICLES VII and VIII
of the Agreement.
4.3 SCHEDULES. All of the Schedules pertaining to the Borrower or the
Parent attached to the Agreement are hereby supplemented to include the
information and disclosures pertaining to the Borrower or the Parent as set
forth in the Disclosure Schedule attached to this Amendment.
5. REAFFIRMATION OF GUARANTY. The Parent hereby acknowledges the terms,
provisions and intent of this Amendment and acknowledges and agrees that all of
the provisions of that certain Amended and Restated Guaranty, dated as of July
16, 2004, made by the Parent in favor and for the benefit of the Agent and the
Loan shall continue to be its valid and binding obligations, enforceable in
accordance with their terms, including without limitation, with respect to any
Obligations of the Borrower under the Agreement as contemplated in this
Amendment.
6. GENERAL.
-------
6.1 RATIFICATION. Except as hereby amended, the Agreement and all
other Loan Documents and each provision thereof are hereby ratified and
confirmed in every respect and shall continue in full force and effect, and
this Amendment shall not be, and shall not be deemed to be, a waiver of any
Default or of any covenant, term or provision of the Agreement or other
Loan Documents.
6.2 COUNTERPARTS. This Amendment may be executed and delivered in any
number of counterparts with the same effect as if the signatures hereto and
thereto were upon the same instrument.
6.3 AMENDMENT AS LOAN DOCUMENT. Each party hereto agrees and
acknowledges that this Amendment constitutes a "Loan Document" under and as
defined in the Agreement.
6.4 GOVERNING LAW. THIS AMENDMENT SHALL IN ALL RESPECTS BE GOVERNED,
CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
6.5 SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon each
of the Borrower, the Parent, the Lender and the Agent and their respective
successors and assigns, and shall inure to the benefit of each of the
Borrower, the Guarantor, the Lender and the Agent.
6.6 HEADINGS. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
6.7 NO COURSE OF DEALING. The Agent and the Lender have entered into
this Amendment on the express understanding with the Borrower and the
Parent that in entering into this Amendment the Agent and the Lender are
not establishing any course of dealing with the Borrower and the Parent.
The Agent's and the Lender's right to require strict performance with all
of the terms and the conditions of Agreement and the other Loan Documents
shall not in any way be impaired by the execution of this Amendment.
Neither the Agent nor the Lender shall be obligated in any manner to
execute any further amendments or waivers and if such waivers or amendments
are requested in the future, assuming the terms and conditions thereof are
satisfactory to them, the Agent and the Lenders may require the payment of
fees in connection therewith.
[Remainder of page intentionally left blank; signatures appear on next page]
2
IN WITNESS WHEREOF this Amendment has been duly executed and delivered
as a sealed instrument as of the date first set forth above.
BORROWER: CHARTER MAC CORPORATION
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------
Title: Chief Operating Officer
-----------------------
PARENT: CHARTERMAC
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------
Title: Chief Operating Officer
-----------------------
AGENT AND LENDER: BANK OF AMERICA, N.A.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇
----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-------------
Title: Senior Vice President
---------------------
Signature Page to Second Amendment to Amended Restated Credit Agreement
S-1
DISCLOSURE SCHEDULE
-------------------
None.
A-2
THIRD AMENDMENT
---------------
TO
--
AMENDED AND RESTATED
--------------------
CREDIT AGREEMENT
----------------
THIS THIRD AMENDMENT (this "Amendment") is entered into as of December 20,
2005, among: CHARTERMAC, a Delaware statutory trust (the "Parent"); CHARTER MAC
CORPORATION, a Delaware corporation (the "Borrower"); and BANK OF AMERICA, N.A.
(successor by merger to Fleet National Bank) as the sole Lender and as Agent.
RECITALS
Reference is made to the following facts that constitute the background of
this Amendment:
A. The Borrower, the Parent, the Agent and the Lender entered into that
certain Amended and Restated Credit Agreement, dated as of July 16,
2004 (as previously amended by a First Amendment, dated as of July 15,
2005 (the "First Amendment"), and a Second Amendment, dated as of
October 31, 2005, the "Agreement"). Capitalized terms used herein and
not otherwise defined herein shall have the same meanings herein as
ascribed to them in the Agreement;
B. The Borrower and the Parent have requested that the Agent and Lender
agree to extend the Termination Date under the Agreement; and
C. The Agent and the Lender are willing to extend the Termination Date
solely upon the terms and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing Recitals and of the
representations, warranties, covenants and conditions set forth herein and in
the Agreement, the Borrower, the Parent, the Agent and the Lender hereby agree
as follows:
1. AMENDMENTS TO THE AGREEMENT. In compliance with Section 11.6 of the
Agreement, the Borrower, the Parent, the Agent and the Lender agree that,
notwithstanding the fact that the Borrower exercised its Extension Option
pursuant to the First Amendment, the definition of "Termination Date" set forth
in Section 1.1 of the Agreement is hereby deleted and replaced by the following:
"'Termination Date' means March 31, 2006 unless accelerated pursuant to the
terms hereof."
2. ACKNOWLEDGEMENT. The Borrower and the Parent hereby acknowledge that the
Borrower does not have any further right to extend the Termination Date pursuant
to Section 2.4(b) of the Agreement.
3. EXTENSION FEE. In consideration of the extension contemplated in Section
1 above, the Borrower shall pay to the Agent, for the ratable benefit of the
Lenders, an extension fee in the amount of $18,125.00, which fee shall be due
and payable, and, subject to the next sentence, fully earned and nonrefundable,
simultaneously with the execution and delivery of this Amendment.
4. WARRANTIES, REPRESENTATIONS, COVENANTS AND DISCLOSURES.
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4.1 WARRANTIES AND REPRESENTATIONS. The Borrower and the Parent hereby
acknowledge that pursuant to this Amendment, each of them makes, jointly
and severally with the other, all the representations and warranties as set
forth in ARTICLE VI of the Agreement as of the date hereof (except (i) for
changes that are not singly or in the aggregate materially adverse
resulting from transactions contemplated and permitted by the Loan
Agreement and the other Loan Documents, and changes occurring in the
ordinary course of business that singly or in the aggregate are not
materially adverse, and (ii) that representations and warranties relating
expressly to an earlier date are reaffirmed as of such date).
4.2 COVENANTS. The Borrower and the Parent hereby acknowledge that
pursuant to this Amendment, each of them makes, jointly and severally with
the other, each covenant and agreement set forth in ARTICLES VII and VIII
of the Agreement.
4.3 SCHEDULES. All of the Schedules pertaining to the Borrower or the
Parent attached to the Agreement are hereby supplemented to include the
information and disclosures pertaining to the Borrower or the Parent as set
forth in the Disclosure Schedule attached to this Amendment.
5. REAFFIRMATION OF GUARANTY. The Parent hereby acknowledges the terms,
provisions and intent of this Amendment and acknowledges and agrees that all of
the provisions of that certain Amended and Restated Guaranty, dated as of July
16, 2004, made by the Parent in favor and for the benefit of the Agent and the
Loan shall continue to be its valid and binding obligations, enforceable in
accordance with their terms, including without limitation, with respect to any
Obligations of the Borrower under the Agreement as contemplated in this
Amendment.
6. GENERAL.
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6.1 RATIFICATION. Except as hereby amended, the Agreement and all
other Loan Documents and each provision thereof are hereby ratified and
confirmed in every respect and shall continue in full force and effect, and
this Amendment shall not be, and shall not be deemed to be, a waiver of any
Default or of any covenant, term or provision of the Agreement or other
Loan Documents.
6.2 COUNTERPARTS. This Amendment may be executed and delivered in any
number of counterparts with the same effect as if the signatures hereto and
thereto were upon the same instrument.
6.3 AMENDMENT AS LOAN DOCUMENT. Each party hereto agrees and
acknowledges that this Amendment constitutes a "Loan Document" under and as
defined in the Agreement.
6.4 GOVERNING LAW. THIS AMENDMENT SHALL IN ALL RESPECTS BE GOVERNED,
CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
6.5 SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon each
of the Borrower, the Parent, the Lender and the Agent and their respective
successors and assigns, and shall inure to the benefit of each of the
Borrower, the Guarantor, the Lender and the Agent.
6.6 HEADINGS. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
6.7 NO COURSE OF DEALING. The Agent and the Lender have entered into
this Amendment on the express understanding with the Borrower and the
Parent that in entering into this Amendment the Agent and the Lender are
not establishing any course of dealing with the Borrower and the Parent.
The Agent's and the Lender's right to require strict performance with all
of the terms and the conditions of Agreement and the other Loan Documents
shall not in any way be impaired by the execution of this Amendment.
Neither the Agent nor the Lender shall be obligated in any manner to
execute any further amendments or waivers and if such waivers or amendments
are requested in the future, assuming the terms and conditions thereof are
satisfactory to them, the Agent and the Lenders may require the payment of
fees in connection therewith.
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IN WITNESS WHEREOF this Amendment has been duly executed and delivered as a
sealed instrument as of the date first set forth above.
BORROWER: CHARTER MAC CORPORATION
By: /s/▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇
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Title: Senior Vice President
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PARENT: CHARTERMAC
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Chief Operating Officer
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AGENT AND LENDER: BANK OF AMERICA, N.A.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Senior Vice President
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Signature Page to Third Amendment to Amended and Restated Credit Agreement
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DISCLOSURE SCHEDULE
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None.
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