Exhibit 10.6
[BANK OF AMERICA LOGO] [UBS INVESTMENT BANK LOGO]
EXECUTION COUNTERPART
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Published CUSIP Number: ▇▇▇▇▇▇▇▇▇
REVOLVING CREDIT AND TERM LOAN AGREEMENT
Dated as of August 15, 2006
among
CHARTERMAC and
CHARTER MAC CORPORATION,
as the Borrowers,
CHARTERMAC CAPITAL COMPANY, LLC, CHARTERMAC CAPITAL LLC,
CM ARCAP INVESTORS LLC, ARCAP INVESTORS, L.L.C.,
ARCAP REIT, INC., CM HOLDING TRUST, CM HOLDING TRUST II,
ARCAP SERVICING, INC. and ARCAP FINANCE CORPORATION
and other named entities party hereto from time to time,
as Guarantors,
BANK OF AMERICA, N.A. and UBS LOAN FINANCE LLC, and other named
entities party hereto from time to time, as Lenders,
BANK OF AMERICA, N.A. and UBS SECURITIES LLC,
as Agents,
and
BANK OF AMERICA, N.A.
as Issuing Bank and Swingline Lender, and as Administrative Agent
on behalf of the Lenders
* * * * *
BANC OF AMERICA SECURITIES, LLC
and UBS SECURITIES LLC,
as Joint Lead Arrangers and Joint Book Managers
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Table of Contents
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1. DEFINITIONS AND RULES OF INTERPRETATION....................................1
1.1 Definitions..........................................................1
1.2 Rules of Interpretation.............................................22
2. REVOLVING LOANS AND TERM LOAN.............................................23
2.1 Revolving Loans.....................................................23
2.1.1 Commitments to Make Revolving Loans.......................23
2.1.2 Extension of Revolver Maturity Date.......................23
2.1.3 Unused Facility Fee.......................................24
2.1.4 Revolving Notes...........................................24
2.1.5 Interest on Revolving Loans...............................24
2.1.6 Requests for Revolving Loans..............................25
2.2 Term Loan...........................................................26
2.2.1 Commitments to Make Term Loan.............................26
2.2.2 Term Notes................................................27
2.2.3 Interest on Term Loan.....................................27
2.3 Types of Loans: Conversion and Continuation Options.................27
2.3.1 Conversion to Different Type of Loan......................27
2.3.2 Continuation of Type of Loan..............................28
2.3.3 LIBOR Rate Loans..........................................28
2.3.4 Notification by Borrowers.................................28
2.3.5 Amounts, Etc..............................................28
2.4 Swingline Loans.....................................................29
2.4.1 Swingline Commitment......................................29
2.4.2 Swingline Loan Borrowing Procedure........................29
2.4.3 Prepayment................................................29
2.4.4 Participations............................................29
2.5 Accordion Option....................................................30
2.5.1 Accordion Option to Increase the Revolving Credit Limit...31
2.5.2 Accordion Option to Increase the Term Loan................31
2.6 Reduction of Commitments............................................31
3. USE OF PROCEEDS...........................................................32
3.1 Use of Proceeds.....................................................32
3.1.1 Use of Revolving Loans and Swingline Loans................32
3.1.2 Use of Term Loan..........................................32
4. REPAYMENT OF REVOLVING LOANS AND TERM LOAN................................33
4.1 Revolving Loans.....................................................33
4.1.1 Maturity..................................................33
4.1.2 Optional Repayments of Revolving Loans....................33
4.2 Term Loan...........................................................33
4.2.1 Amortization of Term Loan.................................33
4.2.2 Mandatory Prepayments of Term Loan........................33
4.2.3 Application of Mandatory Repayments.......................34
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4.2.4 Optional Prepayments of Term Loan.........................34
4.3 Swingline Loans.....................................................35
5. LETTERS OF CREDIT.........................................................35
5.1 Letter of Credit Commitments........................................35
5.1.1 Commitment to Issue Letters of Credit.....................35
5.1.2 Letter of Credit Applications.............................36
5.1.3 Terms of Letters of Credit................................36
5.1.4 Letter of Credit Participation of Lenders.................37
5.1.5 Participations of Lenders.................................37
5.2 Reimbursement Obligation of the Borrowers...........................37
5.3 Letter of Credit Payments...........................................38
5.4 Obligations Absolute................................................39
5.5 Reliance by Issuer..................................................39
5.6 Letter of Credit Fees...............................................39
6. CERTAIN GENERAL PROVISIONS................................................40
6.1 Fees................................................................40
6.1.1 Administrative Agent's Fee................................40
6.1.2 Closing Fees..............................................40
6.2 Payments to Administrative Agent....................................40
6.3 No Offsets, Taxes Etc...............................................40
6.3.1 No Offsets................................................40
6.3.2 Other Taxes...............................................40
6.3.3 Indemnification...........................................41
6.3.4 Non-U.S. Lenders..........................................41
6.3.5 U.S. Lenders..............................................42
6.3.6 Pre-Existing Withholding Requirements.....................42
6.3.7 Mitigation................................................42
6.3.8 Refunds...................................................43
6.3.9 Evidence of Payment.......................................43
6.3.10 Survival..................................................43
6.4 Computations........................................................43
6.5 Interest Limitation.................................................44
6.6 Inability to Determine LIBOR Rate...................................44
6.7 Illegality..........................................................44
6.8 Additional Costs, Etc...............................................45
6.8.1 Taxes.....................................................45
6.8.2 Reserves..................................................45
6.8.3 Other Costs...............................................45
6.9 Capital Adequacy....................................................46
6.10 Certificate.........................................................46
6.11 Mitigation Obligations; Replacement of Lenders......................46
6.11.1 Designation of a Different Lending Office.................46
6.11.2 Replacement of Lenders....................................47
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6.11.3 Survival..................................................47
6.12 Indemnity...........................................................47
6.13 Interest After Event of Default.....................................47
6.14 Replacement of Lenders..............................................47
7. CONDITIONS PRECEDENT......................................................48
7.1 Documents...........................................................48
7.2 Other Conditions Precedent to any Loans.............................48
8. REPRESENTATIONS AND WARRANTIES............................................49
8.1 Financial Information...............................................49
8.2 Litigation..........................................................50
8.3 Good Title and No Liens.............................................50
8.4 Franchise, Patents, Copyrights, Etc.................................50
8.5 Entity Matters......................................................50
8.5.1 Organization..............................................50
8.5.2 Ownership.................................................51
8.5.3 Taxpayer Identification Numbers...........................51
8.5.4 Equity Interests..........................................51
8.6 Authorization.......................................................51
8.7 Valid and Binding...................................................52
8.8 Deferred Compensation and ERISA.....................................52
8.9 No Materially Adverse Contracts, Etc................................52
8.10 Compliance With Other Instruments, Laws, Etc........................53
8.11 Tax Status..........................................................53
8.12 Holding Company and Investment Company Acts.........................53
8.13 Certain Transactions................................................53
8.14 Loan Documents......................................................53
8.15 Regulations U and X. ..............................................53
8.16 Solvency............................................................54
8.17 No Material Change; No Default......................................54
8.18 Insurance...........................................................54
8.19 Use of Proceeds.....................................................54
8.20 Labor Matters.......................................................54
8.21 Exchange Listing....................................................54
8.22 No Broker or Finder.................................................54
8.23 Information True, Complete and Not Misleading.......................55
9. AFFIRMATIVE COVENANTS.....................................................55
9.1 Punctual Payment....................................................55
9.2 Maintenance of Location and Office..................................55
9.3 Organizational Number...............................................55
9.4 Records and Accounts................................................55
9.5 Delivery of Financial Statements and Notices........................55
9.5.1 Financial Statements, Reports, Etc........................55
9.5.2 Notices...................................................57
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9.5.3 True, Accurate and Complete Financial Statements..........58
9.6 Existence; Conduct of Business......................................58
9.6.1 Statutory Trusts..........................................58
9.6.2 Corporations..............................................58
9.6.3 Limited Liability Companies...............................59
9.7 Insurance...........................................................59
9.8 Taxes and Trade Debt................................................59
9.9 Compliance with Laws, Contracts, Licenses, and Permits..............59
9.10 Indemnification Against Payment of Brokers' Fees....................60
9.11 Fiscal Year.........................................................60
9.12 Place for Records; Inspection.......................................60
9.13 Replacement Documentation...........................................60
9.14 Further Assurances..................................................60
9.15 Guaranties..........................................................60
9.16 Additional Information..............................................60
9.17 Exchange Listing....................................................61
9.18 CAD Covenant; Additional Guarantors and Pledged Entities............61
9.18.1 CAD Covenant..............................................61
9.18.2 Additional Guarantors or Pledged Entities.................61
9.19 Issuer Trust Preferred Shares Covenants.............................61
9.20 Ownership of CM Corp., Guarantors and Pledged Entities..............61
10. NEGATIVE COVENANTS; FINANCIAL COVENANTS...................................62
10.1 Liens...............................................................62
10.1.1 Affordable Housing Syndications...........................63
10.1.2 Governmental Charges......................................63
10.1.3 Liens Contemplated Hereby.................................63
10.1.4 CMCC Mortgage Warehouse Line..............................63
10.1.5 ARCap.....................................................63
10.1.6 Existing Liens............................................63
10.1.7 Mechanics Liens, etc......................................63
10.1.8 Pledges & Deposits........................................63
10.1.9 Bids......................................................63
10.1.10 Easements.................................................64
10.1.11 Judgments.................................................64
10.1.12 Purchase Money............................................64
10.1.13 Precautionary UCC Financing Statements....................64
10.1.14 Set-Off...................................................64
10.1.15 Licenses..................................................64
10.2 Double Negative Pledge..............................................64
10.2.1 Negative Pledge...........................................64
10.2.2 Double Negative Pledge....................................64
10.3 Indebtedness........................................................64
10.3.1 Borrowers, Guarantors and Pledged Entities................64
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10.3.2 CHC and CM Corp...........................................65
10.3.3 CHC.......................................................65
10.3.4 CM Corp...................................................66
10.3.5 ARCap.....................................................66
10.3.6 Issuer Trust..............................................66
10.4 Merger; Ownership Interests; Sale of Assets.........................66
10.4.1 Mergers, Consolidations and Asset Sales...................66
10.4.2 Other Asset Transfers.....................................67
10.5 Loans, Guarantees and Investments...................................67
10.6 Distributions Prior to Default......................................67
10.7 Distributions After Default.........................................67
10.7.1 CHC.......................................................67
10.7.2 Guarantors and Pledged Entities...........................67
10.8 Affiliate Indebtedness..............................................68
10.9 Purchase of Margin Stock............................................68
10.10 Transactions with Affiliates........................................68
10.11 Amendment to Governing Documents....................................68
10.12 Business Lines......................................................68
10.13 Competing Businesses................................................68
10.14 Consolidated Tangible Net Worth.....................................69
10.15 Adjusted CAD to Fixed Charges Ratio.................................69
10.16 Minimum CAD.........................................................69
10.17 Funded Debt to Adjusted CAD Ratio...................................69
11. DEFAULT...................................................................69
11.1 Events of Default...................................................69
11.1.1 Failure to Pay............................................69
11.1.2 Failure to Perform........................................69
11.1.3 Breach of Representation or Warranty......................70
11.1.4 Failure to Pay Other Indebtedness.........................70
11.1.5 Insolvency................................................70
11.1.6 Involuntary Proceedings...................................70
11.1.7 Judgments.................................................70
11.1.8 Cancellation of Loan Documents............................71
11.1.9 ERISA.....................................................71
11.1.10 Indictment................................................71
11.1.11 Material Adverse Change...................................71
11.2 Remedies Upon Event of Default......................................71
11.2.1 Accelerate Debt...........................................71
11.2.2 Pursue Remedies...........................................71
11.2.3 Power of Attorney.........................................72
11.3 Written Waivers.....................................................72
11.4 Allocation of Proceeds..............................................72
11.5 Performance by the Administrative Agent.............................73
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11.6 Rights Cumulative...................................................73
12. SETOFF....................................................................73
13. THE ADMINISTRATIVE AGENT..................................................74
13.1 Authorization.......................................................74
13.1.1 Authorization to Act......................................74
13.1.2 Independent Contractor....................................74
13.1.3 Representative............................................75
13.1.4 Regarding Collateral......................................75
13.2 Employees, Advisors and the Administrative Agent....................75
13.3 No Liability........................................................75
13.4 No Representations..................................................76
13.4.1 General...................................................76
13.4.2 Closing Documentation, Etc................................76
13.5 Payments............................................................76
13.5.1 Payments to Administrative Agent..........................76
13.5.2 Distribution by Administrative Agent......................77
13.5.3 Delinquent Lenders........................................77
13.5.4 Indemnity.................................................77
13.6 Administrative Agent as Lender and Issuing Bank.....................78
13.7 Resignation.........................................................78
13.8 Notification of Defaults............................................79
13.9 Duties in the Case of Enforcement...................................79
13.10 Administrative Agent May File Proofs of Claim.......................79
14. EXPENSES..................................................................80
15. INDEMNIFICATION...........................................................81
16. SURVIVAL OF COVENANTS, JOINT AND SEVERAL OBLIGATIONS, ETC.................82
16.1 Survival............................................................82
16.2 Joint and Several Obligations.......................................82
17. ASSIGNMENT AND PARTICIPATION..............................................82
17.1 General Conditions..................................................82
17.2 Assignments.........................................................83
17.2.1 Minimum Assignments.......................................83
17.2.2 Deliverables..............................................83
17.2.3 Joinder...................................................83
17.3 Register; Accounts..................................................83
17.4 Participations......................................................84
17.5 Payments to Participants............................................84
17.6 Miscellaneous Assignment Provisions.................................84
17.7 Assignee or Participant Affiliated with CHC.........................85
17.8 Recordation in Register.............................................85
18. NOTICES, ETC..............................................................85
19. GOVERNING LAW; JURISDICTION; VENUE........................................86
20. HEADINGS..................................................................86
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21. COUNTERPARTS..............................................................87
22. ENTIRE AGREEMENT, ETC.....................................................87
22.1 Entire Agreement....................................................87
22.2 Additional Guarantors and Pledged Entities..........................87
23. CONSENTS, AMENDMENTS, WAIVERS, ETC........................................87
23.1 General Rule........................................................87
23.1.1 Affected Lenders..........................................87
23.1.2 All Lenders...............................................88
23.1.3 Administrative Agent, Issuing Bank and Swingline Lender...88
23.1.4 Upon Change in Administrative Agent, Swingline Lender or
Issuing Bank..............................................88
23.2 Waivers.............................................................89
23.3 Reasonable Cooperation by Creditor Parties..........................89
24. SEVERABILITY..............................................................89
25. CONFIDENTIALITY...........................................................89
25.1 Confidentiality.....................................................89
25.2 Definition of Information...........................................90
25.3 Compliance Standard.................................................90
25.4 Intralinks and Public Lenders.......................................90
26. USA PATRIOT ACT...........................................................91
27. NO ADVISORY OR FIDUCIARY RESPONSIBILITY...................................91
28. DESIGNATION OF PERMITTED LIENS............................................92
29. WAIVER OF JURY TRIAL......................................................92
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Exhibits and Schedules
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Exhibits
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Ex. 1.1A Applicable Margin
Ex. 1.1B Form of Guaranty
Ex. 1.1C Form of Pledge Agreement
Ex. 1.1D Risk-Adjusted Contingent Liabilities
Ex. 2.1.4 Form of Revolving Note
Ex. 2.1.6 Form of Revolving Loan Request
Ex. 2.2.2 Form of Term Note
Ex. 2.3.1 Form of Conversion or Continuation Request
Ex. 2.4.2 Form of Swingline Loan Request
Ex. 6.3.4 Form of Non-U.S. Lender Certificate
Ex. 7.1 Closing Checklist
Ex. 9.5.1(c) Form of Compliance Certificate
Ex. 17.2.2 Form of Assignment and Acceptance
Schedules
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Schedule 1 Guarantors and Pledged Entities
Schedule 2 Lender Register
Schedule 3 Administrative Agent's Office
Schedule 3.1.1 Repayment Obligations and Use of Proceeds
Schedule 4 List of Competitors
Schedule 8.2 Litigation
Schedule 8.3 Permitted Liens
Schedule 8.5.1 Organization
Schedule 8.5.2 Ownership
Schedule 8.5.3 Tax Payer Identification Numbers
Schedule 8.5.4 Rights with Respect to Equity Interests
Schedule 8.13 Related Party Transactions
Schedule 10.3.1 Permitted Indebtedness
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REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS REVOLVING CREDIT AND TERM LOAN AGREEMENT (this "Credit Agreement") dated as
of August 15, 2006 is among CHARTERMAC ("CHC") and CHARTER MAC CORPORATION ("CM
Corp.") (each, a "Borrower," and, collectively, the "Borrowers"); those Persons
(as defined below) listed as Guarantors on Schedule 1 hereto as of the date
hereof and from time to time (each, a "Guarantor," and, collectively, the
"Guarantors"); BANK OF AMERICA, N.A. and UBS LOAN FINANCE LLC (collectively, the
"Initial Lenders"); THE OTHER LENDERS party hereto as listed on Schedule 2 from
time to time (collectively, with the Initial Lenders, the "Lenders"); and BANK
OF AMERICA, N.A., as Administrative Agent (as defined below), as Swingline
Lender (the "Swingline Lender") and as Issuing Bank (the "Issuing Bank"); and
BANK OF AMERICA, N.A. and UBS SECURITIES LLC as Agents (the "Agents").
The parties hereto agree as follows:
1. DEFINITIONS AND RULES OF INTERPRETATION.
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1.1 Definitions. The following terms shall have the meanings set forth in
this Section or elsewhere in the provisions of this Credit Agreement referred to
below:
Accordion Option. The option of the Borrowers exercised in accordance with the
terms of Section 2.5 to increase either the Revolving Credit Limit or the Term
Loan Limit, or both, (and, as a result, the Total Credit Amount) by up to
$200,000,000 in the aggregate.
Adjusted CAD. The amount measured as of the last day of the applicable period
derived from (A) CHC's CAD, plus (B) interest expense on Funded Debt, plus (C)
any unused facility fees on Funded Debt, plus (D), to the extent deducted in
order to determine net income, preferred dividends paid, accrued or allocated to
the 4.4% Convertible CRA Shares.
Adjustment Date. The first day of the month immediately following the date on
which a Compliance Certificate is to be delivered by the Borrowers pursuant to
Section 9.5.1(c).
Administrative Agent. Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.
Administrative Agent's Fee. See Section 6.1.1.
Administrative Agent's Office. The Administrative Agent's address and, as
appropriate, account as set forth on Schedule 3, or at such other location as
the Administrative Agent may designate to the Borrowers and the Lenders from
time to time.
Advisory Services. See Section 27.
Affiliate. As to any Person, any other Person directly or indirectly
controlling, controlled by or under direct or indirect common control with, such
Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with") as applied to any Person, means
directly or indirectly possessing the power (i) to vote 10% or more of the
Capital Stock having ordinary voting power for the election of directors of such
Person, or (ii) to direct or cause the direction of the management or policies
of that Person, whether through the ownership of voting securities, by
agreement, or otherwise. Notwithstanding the foregoing, AMAC shall not be
considered an Affiliate of the Borrowers, the Guarantors, Pledged Entities or
any of their Subsidiaries in the event that AMAC would be an Affiliate of any
such Persons solely because any such Persons possess by agreement the power to
direct or cause the direction of the management or policies of AMAC.
Agents. Collectively, Bank of America and UBS Securities LLC.
AMAC. American Mortgage Acceptance Company, a Massachusetts business trust.
Applicable Law. 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.
Applicable Margin. For each period commencing on an Adjustment Date through the
date immediately preceding the next Adjustment Date, the Applicable Margin
applicable to the Loans shall be as set forth on Exhibit 1.1A.
Approved Fund. Any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
ARCap. ARCap Investors, L.L.C., a Delaware limited liability company.
ARCap Acquisition. The consummation of the acquisition in accordance with the
terms of and as contemplated by the ARCap Acquisition Agreement.
ARCap Acquisition Agreement. That certain Securities Purchase Agreement, dated
on or about the date hereof, among ARCap, the members of ARCap selling their
Capital Stock, ARCap REIT, Inc., AI Sellers Representative, L.L.C., CHC, CM
Corp. and CM ARCap Investors LLC, as the same may be amended or modified with
the prior written consent of the Administrative Agent.
Arrangers. Banc of America Securities, LLC and UBS.
Asset Sale Proceeds. Proceeds realized from any one transaction or series of
related transactions in which CHC or any of its Subsidiaries conveys, sells or
otherwise disposes of (a) any of the Equity Collateral, or (b) any substantial
portion of any business unit of any of the Borrowers, the Guarantors or any
Pledged Entity. Asset Sale Proceeds expressly exclude the proceeds from any sale
of: (i) any Capital Stock in any low income housing tax credit projects or
pre-sold mortgage loans in the ordinary course of business consistent with past
practices; (ii) any assets in the ordinary course of business consistent as to
volume and type of assets with past practices, including in connection with a
securitization; (iii) any assets transferred in exchange for either like assets
or assets of a type typically held by such seller under any of the Permitted
Businesses;
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or (iv) any assets where such proceeds are reinvested within one
hundred eighty (180) days of such sale (or within three hundred sixty five (365)
days of such sale if a contract is executed and delivered within one hundred
eighty (180) days of such sale) in either like assets or assets of a type
typically held by such seller under any of the Permitted Businesses. Asset Sale
Proceeds shall be net of (w) reasonable costs and expenses of effecting such
sale (including, without limitation, reasonable legal and brokerage fees to
Persons that are not Affiliates of CHC); (x) repayment of Indebtedness secured
solely by, and incurred in connection with the acquisition of, the asset
disposed of; (y) any income or gains tax due and payable arising out of such
sale; and (z) reasonable purchase price reserves (until such time as any portion
of such reserves are released to CHC or its Subsidiary).
Assignment and Acceptance. See Section 17.2.2.
Balance Sheet Date. See Section 8.1.
Bank of America. Bank of America, N.A., and its successors.
Base Rate. For any day, a fluctuating rate per annum equal to the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its "prime rate." The "prime rate" is a rate set by Bank of
America based upon various factors including Bank of America's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.
Base Rate Loans. All or any portion of the Revolving Loans, Swingline Loans or
the Term Loan bearing interest calculated by reference to the Base Rate.
Book Managers. Banc of America Securities, LLC and UBS.
Borrower and Borrowers. See the introductory paragraph to this Credit Agreement.
Borrower Materials. See Section 25.4.
Business Day. Any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any LIBOR Rate Loan, means any such day on which dealings in
Dollar deposits are conducted by and between banks in the London interbank
eurodollar market.
CAD. Such amount for the period in question as identified and disclosed to the
Administrative Agent and calculated in a manner substantively consistent with
the calculation thereof in CHC's Filings immediately preceding the date of this
Credit Agreement, plus (A) extraordinary losses for such period as determined in
accordance with GAAP, minus (B) extraordinary gains for such period as
determined in accordance with GAAP, minus (C) non-recurring income, minus (D)
Investments, minus (E) any net income or so-called "cash available for
distribution" recognized
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by any Subsidiary of CHC if and to the extent that such net income or cash
available for distribution is not available for distribution to CHC.
CAD Covenant. See Section 9.18.1.
Capital Stock. Any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing (including
convertible debt instruments).
Cash Collateral. See Section 4.2.3.
Cash Equivalents. (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) Dollar denominated
(or foreign currency fully hedged to the Dollar) 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 (or carrying an equivalent rating by a
nationally recognized rating agency if both S&P and Moody's cease publishing
ratings of commercial paper issuers generally) (an "Acceptable Rating"), 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 carrying an Acceptable
Rating 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 where such accounts
are insured by the FDIC consistent with the FDIC's ordinary and customary
practices.
Casualty Event. With respect to any property (including any interest in
property) of either Borrower, any Guarantor or any of their respective
Subsidiaries, any loss of, damage to, or condemnation or other taking of, such
property for which such Person receives insurance proceeds, proceeds of a
condemnation award or other compensation.
Centerbrook. Centerbrook Financial LLC, a Delaware limited liability company
through which CHC indirectly engages in the business of providing credit
intermediation.
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Change in Control. The occurrence of any of the following:
(a) the occurrence of any events or circumstances such that any of CM
Corp., any of the Guarantors or any of the Pledged Entities, either
directly or indirectly, shall no longer be controlled by CHC.
(b) as to CHC: (i) any merger or consolidation of CHC with or into any
Person or any sale, transfer or other conveyance, whether direct or
indirect, of all or substantially all of the assets of CHC, on a
consolidated basis, in one transaction or a series of related
transactions, if, immediately after giving effect to such transaction,
any Person or group of Persons (within the meaning of Section 13 or 14
of the Securities Exchange Act) is or becomes the beneficial owner
(within the meaning of Rule 13d-3 promulgated by the Securities and
Exchange Commission under the Securities Exchange Act) of the common
shares representing a majority of the total voting power on a fully
diluted basis of the aggregate outstanding securities of the transferee
or surviving entity normally entitled to vote in the election of
directors, managers, or trustees, as applicable, of the transferee or
surviving entity; (ii) any Person or group of Persons (within the
meaning of Section 13 or 14 of the Securities Exchange Act) is or
becomes the beneficial owner (within the meaning of Rule 13d-3
promulgated by the SEC under the Securities Exchange Act) of the common
shares representing a majority of total voting power of the aggregate
outstanding common shares of CHC normally entitled to vote in the
election of directors of CHC; or (iii) during any period of 12
consecutive calendar months, individuals who were directors or trustees
of CHC on the first day of such period (together with any new directors
or trustees whose election by the board of directors or board of
trustees of CHC or whose nomination for election by the stockholders of
CHC was approved by a vote of a majority of the directors or trustees
then still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the board of
directors of CHC.
(c) In the event that CM Corp. issues preferred Capital Stock creating
rights to force any change in CM Corp.'s board of directors, if any, or
management, similar to such rights arising under Issuer Trust Preferred
Shares, the exercise of any such rights resulting in any such forced
changes.
CharterMac Capital. CharterMac Capital LLC, a Delaware limited liability company
(formerly known as Related Capital Company LLC).
CharterMac Capital Company. CharterMac Capital Company, LLC, a Delaware limited
liability company.
CharterMac Mortgage Capital. CharterMac Mortgage Capital Corporation, a Delaware
corporation.
CharterMac Residual Holder. CharterMac Residual Holder LLC, a Delaware limited
liability company.
CHC. CharterMac, a Delaware statutory trust.
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CHC's Filings. Forms 10-Q and 10-K filed from time to time by CHC with the SEC.
Closing Date. The first date on which the conditions set forth in Section 7 have
been satisfied, or waived in accordance with Section 23.
Closing Fees. See Section 6.1.2.
CMCC Mortgage Warehouse Line. That certain mortgage warehouse line pursuant to
that certain Amended and Restated Mortgage Warehousing Credit and Security
Agreement, dated as of March 18, 2005, among CharterMac Mortgage Capital,
CharterMac Mortgage Partners Corp., Bank of America as agent, and the lenders
party thereto (as such agreement may be amended or restated from time to time)
and any replacement or additional facility on similar substantive terms and
conditions.
CM Corp. Charter Mac Corporation, a Delaware corporation.
Code. The Internal Revenue Code of 1986, as amended.
Collateral. Collectively, the Equity Collateral and the Cash Collateral.
Commitment. With respect to each Lender, (a) the aggregate Dollar amount set
forth on Schedule 2 hereto equal to the sum of (i) such Lender's Revolving Loan
Commitment (including such Lender's commitment to participate in the issuance,
extension, renewal and honoring of Letters of Credit issued for the account of
either of the Borrowers), plus (ii) such Lender's Term Loan Commitment; or (b)
if such Lender's Revolving Loan Commitment and Term Loan Commitment are
terminated pursuant to the provisions hereof, zero. With respect to the
Swingline Lender, the Swingline Commitment.
Commitment Percentage. With respect to each Lender, the percentage set forth on
Schedule 2 obtained by dividing (i) the sum of such Lender's Revolving Loan
Commitment and Term Loan Commitment, by (ii) the aggregate Commitments of all
Lenders.
Competitors. Persons that are in competition with the Borrowers that are listed
on Schedule 4.
Compliance Certificate. See Section 9.5.1(c).
Consolidated or consolidated. With reference to any term defined herein, shall
mean that term as applied to the accounts of the named Person and its
Subsidiaries, consolidated in accordance with GAAP.
Consolidated Tangible Net Worth. CHC's consolidated total shareholders equity as
reported on CHC's balance sheet and calculated in a manner consistent with the
manner calculated in CHC's Filings (which shall exclude all FIN 46R Entries),
minus (A) all goodwill and intangible assets and minus (B) restricted cash or
similar assets.
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Continue, Continuation and Continued. Refers to the continuation of a Base Rate
Loan or a LIBOR Rate Loan from one Interest Period to another Interest Period
pursuant to Section 2.3.2.
Contractual Obligations. 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.
Conversion Request. A notice given by the Borrowers to the Administrative Agent
of the Borrower's election to Convert or Continue a Base Rate Loan to a LIBOR
Rate Loan, or vice versa, in accordance with Sections 2.3.1 and 2.3.2.
Convert, Conversion and Converted. Refers to the conversion of either a Base
Rate Loan into a LIBOR Rate Loan or a LIBOR Rate Loan into a Base Rate Loan
pursuant to Sections 2.3.1 and 2.3.2.
4.4% Convertible CRA Shares. CHC's 4.4% Convertible Community Reinvestment Act
Preferred Shares described in CHC's Filings as filed with the SEC from time to
time, and any and all shares of capital stock of CHC with similar
characteristics and terms.
Covered Taxes. See Section 6.3.1.
Credit Agreement. See the introductory paragraph to this Credit Agreement.
Creditor Parties. The Lenders, the Swingline Lender, the Administrative Agent
and the Issuing Bank, or such group of such Persons as a context may suggest or
require.
Daily Unused Amount. See Section 2.1.3(d).
Default. Any event or circumstance which is either an Event of Default, or, with
the giving of notice or the passage of time or both, will become an Event of
Default.
Default Rate. An interest rate equal to (a) the Base Rate plus (b) 2% per annum,
in all cases to the fullest extent permitted by applicable laws.
Delinquent Lender. See Section 13.5.3.
Derivative Agreement. Any forward contract, futures contract, swap, option or
other similar agreement or arrangement (including, without limitation, caps,
floors, collars and similar agreements).
Distribution. The declaration or payment of any dividend on or in respect of any
shares of any class of Capital Stock of CHC or any Subsidiary of CHC, other than
dividends payable solely in shares of common stock of CHC or such Subsidiary;
the payment or prepayment of principal of, premium, if any, or interest on, or
purchase, redemption, defeasance, retirement or other
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acquisition of with respect to any shares of any class of Capital Stock of CHC
or any Subsidiary of CHC, directly or indirectly through a Subsidiary of such
Person or otherwise (including the setting apart of assets for a sinking or
other analogous fund to be used for such purpose); the return of capital by CHC
or any Subsidiary of CHC to its shareholders as such; or any other distribution
on or in respect of any shares of any class of Capital Stock of CHC or any
Subsidiary of CHC.
Dollars or $. Dollars in lawful currency of the United States of America.
Domestic Lending Office. Initially, the office of each Lender designated as such
by notice to the Borrowers; thereafter, such other office of such Lender, if
any, that shall be making or maintaining Base Rate Loans.
Drawdown Date. The date on which any Revolving Loan is made or is to be made,
the date on which the Term Loan or any portion thereof is made, and the date on
which any Revolving Loan or Term Loan, in accordance with Section 2.3, is
Converted or Continued.
Eligible Assignee. Any Person who is: (i) a Lender; (ii) any Affiliate of a
Lender or any Approved Fund that is, with respect to the Revolving Loan
Commitments, approved by the Administrative Agent; and (iii) any other financial
institution approved by the Administrative Agent and, with respect to the
Revolving Loan Commitments and so long as no Event of Default is outstanding,
the Borrowers; (each such approval not to be unreasonably withheld or delayed,
and recognizing that it shall not be unreasonable for the Borrowers to withhold
their approval of any Competitors).
Employee Benefit Plan. Any employee benefit plan within the meaning of Section
3(3) of ERISA established, maintained or contributed to (including any plan to
which an obligation to contribute exists) by the Borrower, any Guarantor or any
ERISA Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
Equity Collateral. All of the Capital Stock in CM Corp., each of the Guarantors
(other than CharterMac Capital Company), Issuer Trust (other than Issuer Trust
Preferred Shares), CharterMac Residual Holder, ARCap 2004-RR3 Resecuritization,
Inc., ARCap 2005-RR5 Resecuritization, Inc., and any other Persons listed on
Schedule 1 under Equity Collateral.
ERISA. The Employee Retirement Income Security Act of 1974 as amended, and
regulations promulgated thereunder.
ERISA Affiliate. Any Person which is treated as a single employer with CHC or
any Subsidiary of CHC under Section 414 of the Code.
ERISA Event. (i) A "reportable event" within the meaning of Section 4043 of
ERISA and the regulations issued thereunder with respect to any Guaranteed
Pension Plan; (ii) the failure to meet the minimum funding standard of Code
Section 412 with respect to any Guaranteed Pension Plan (whether or not waived
in accordance with Section 412(d) of the Code) or the failure to make by its due
date a required installment under Code Section 412(m) with respect to any
Guaranteed Pension Plan or the failure to make any required contribution to a
Multiemployer
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Plan; (iii) the provision by the administrator of any Guaranteed
Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to
terminate such plan in a distress termination described in Section 4041(c) of
ERISA; (iv) the withdrawal by any Borrower, Guarantor, Pledged Entity or ERISA
Affiliate from any Guaranteed Pension Plan with two or more contributing
sponsors or the termination of any such plan resulting in liability pursuant to
Sections 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings
to terminate any Guaranteed Pension Plan, or the occurrence of any event or
condition which might constitute grounds under ERISA for the termination of, or
the appointment of a trustee to administer, any Guaranteed Pension Plan; (vi)
the imposition of liability on any Borrower, Guarantor, Pledged Entity or ERISA
Affiliate pursuant to Section 4062(e) or 4069 of ERISA or by reason of the
application of Section 4212(c) of ERISA; (vii) the withdrawal by any Borrower,
Guarantor, Pledged Entity or any ERISA Affiliate in a complete or partial
withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any
Multiemployer Plan if there is any potential liability therefor, or the receipt
by any Borrower, Guarantor, Pledged Entity or any ERISA Affiliate of notice from
any Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated
under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or
omission that could give rise to the imposition on any Borrower, Guarantor,
Pledged Entity or any ERISA Affiliate of material fines, penalties, taxes or
related charges under the Code in respect of any Employee Benefit Plan including
without limitation, the occurrence of a prohibited transaction within the
meaning of Code Section 4975, that would have a Material Adverse Effect; (ix)
the assertion of a material claim (other than routine claims for benefits)
against any Employee Benefit Plan or the assets thereof, or against any
Borrower, Guarantor, Pledged Entity or any ERISA Affiliate in connection with
any such Employee Benefit Plan that would have a Material Adverse Effect; (x)
receipt from the Internal Revenue Service of notice of the failure of any
Guaranteed Pension Plan (or any other Employee Benefit Plan intended to be
qualified under Code Section 401(a)) to qualify under Code Section 401(a), or
the failure of any trust forming part of any Employee Benefit Plan that is an
employee pension benefit plan within the meaning of Section 3(2) of ERISA to
qualify for exemption from taxation under Code Section 501(a); or (xi) the
imposition of a Lien pursuant to Code Section 401(a)(29) or 412(n) or pursuant
to ERISA with respect to any Employee Benefit Plan that is an employee pension
benefit plan within the meaning of Section 3(2) of ERISA.
ERISA Reportable Event. A reportable event with respect to a Guaranteed Pension
Plan within the meaning of Section 4043 of ERISA and the regulations promulgated
thereunder, but excluding any event for which the 30 day notice requirement has
been waived by applicable regulations of the PBGC.
Event of Default. See Section 11.1.
Excluded Taxes. With respect to the Administrative Agent, any Lender, the
Swingline Lender, the Issuing Bank or any other recipient of any payment to be
made by or on account of any Obligation of the Borrowers hereunder, (a) taxes
imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located, and (b) any branch
profits taxes imposed by
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the United States or any similar tax imposed by any other jurisdiction in which
either Borrower is located.
FDIC. The Federal Deposit Insurance Corporation.
Fee Letter. The fee letter, dated as of July 17, 2006, among the Borrowers, the
Administrative Agent, the Initial Lenders and the Arrangers.
Fees. Collectively, the Letter of Credit Fees, the Administrative Agent's Fee,
the Closing Fees and the Unused Facility Fee.
Fiscal Quarter(s). The approximately thirteen (13) or fourteen (14) week
periods, the first of which shall commence on the first day of each Fiscal Year,
and the second, third and fourth of which shall commence on the first day of
April, July and October, respectively.
Fiscal Year. The period commencing on January 1 and ending on December 31 of
each calendar year.
Fixed Charges. The amount measured as of the last day of the applicable period
derived from (A) interest expense on Funded Debt that is due and payable during
such applicable period, plus (B) the Unused Facility Fee and any other unused
facility fees on Funded Debt, plus (C) scheduled principal payments of Funded
Debt, plus (D) preferred dividends allocated, accrued or paid to any 4.4%
Convertible CRA Shares.
Fund. Any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course.
Funded Debt. The sum of the outstanding principal of (a) Revolving Loans plus
(b) the Term Loan, plus (c) the Special Servicing Line, plus (d) Senior
Unsecured Indebtedness of CHC, plus (e) Subordinated Debt.
GAAP. Principles that are (i) consistent with the principles promulgated
or adopted by the Financial Accounting Standards Board and its predecessors and
successors, as in effect from time to time, and (ii) consistently applied with
past financial statements of each Borrower, each Guarantor and their respective
Subsidiaries adopting the same principles, provided that in each case referred
to in this definition of "GAAP" a certified public accountant would, insofar as
the use of such accounting principles is pertinent, be in a position to deliver
an unqualified opinion (other than qualifications regarding changes in GAAP and
as to normal year-end adjustments) as to financial statements in which such
principles have been properly applied.
Governing Documents. With respect to any Person, its certificate or articles of
incorporation, certificate of formation, certificate of trust, or, as the case
may be, certificate of limited partnership, its by-laws, operating agreement,
trust agreement or, as the case may be, partnership agreement or other
constitutive documents and all shareholder agreements, voting trusts and similar
arrangements applicable to any of its Capital Stock.
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Governmental Authority. Any foreign, federal, state, provincial, regional, local
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or arbitrator.
Government Obligations. See the definition of Cash Equivalents.
Guaranteed Pension Plan. Any employee pension benefit plan within the meaning of
Section 3(2) of ERISA established, maintained, or contributed to (including any
plan to which an obligation to contribute exists) by either Borrower, any
Guarantor, any Pledged Entity or any ERISA Affiliate, the benefits of which are
guaranteed on termination in full or in part by the PBGC pursuant to Title IV of
ERISA, other than a Multiemployer Plan.
Guaranties. Those Guaranties executed by the Guarantors on or about the date
hereof, or from time to time as contemplated hereby, substantially in form and
content of Exhibit 1.1B, and otherwise in form and content reasonably
satisfactory to the Administrative Agent, pursuant to which, among other things,
each Guarantor jointly, severally and unconditionally guaranties the payment and
performance in full of the Obligations.
Guarantor Note. See Section 10.3.3(f).
Guarantors. See Schedule 1.
Holding Trust. CM Holding Trust, a Delaware statutory trust.
Holding Trust II. CM Holding Trust II, a Delaware statutory trust.
Indebtedness. As to any Person and whether recourse is secured by or is
otherwise available against all or only a portion of the assets of such Person
and whether or not contingent, but without duplication:
(a) every obligation of such Person for money borrowed;
(b) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses;
(c) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances, or similar facilities issued
for the account of such Person;
(d) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (including securities repurchase
agreements but excluding trade accounts payable or accrued liabilities
arising in the ordinary course of business);
(e) every obligation of such Person under any capitalized lease;
(f) every obligation of such Person under any synthetic lease;
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(g) all sales by such Person of (i) accounts or general intangibles for
money due or to become due, (ii) chattel paper, instruments or
documents creating or evidencing a right to payment of money or (iii)
other receivables (collectively "receivables"), whether pursuant to a
purchase facility or otherwise, other than in connection with the
disposition of the business operations of such Person relating thereto
or a disposition of defaulted receivables for collection and not as a
financing arrangement, and together with any obligation of such Person
to pay any discount, interest, fees, indemnities, penalties, recourse,
expenses or other amounts in connection therewith;
(h) every obligation of such Person to purchase, redeem, retire or
otherwise acquire for value any shares of Capital Stock issued by such
Person or any rights measured by the value of such Capital Stock;
(i) every obligation of such Person under any Derivative Agreement;
(j) every obligation in respect of Indebtedness of any other entity
(including any partnership in which such Person is a general partner)
to the extent that such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity,
except to the extent that the terms of such Indebtedness provide that
such Person is not liable therefor and such terms are enforceable under
applicable law; and
(k) every obligation, contingent or otherwise, of such Person
guaranteeing, or having the economic effect of guarantying or otherwise
acting as surety for, any obligation of a type described in any of
clauses (a) through (j) (the "primary obligation") of another Person
(the "primary obligor"), in any manner, whether directly or indirectly,
and including, without limitation, any obligation of such Person (i) to
purchase or pay (or advance or supply funds for the purchase of) any
security for the payment of such primary obligation, (ii) to purchase
property, securities or services for the purpose of assuring the
payment of such primary obligation, or (iii) to maintain working
capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to
pay such primary obligation.
The "amount" or "principal amount" of any Indebtedness at any time of
determination represented by (1) any Indebtedness, issued at a price
that is less than the principal amount at maturity thereof, shall be
the amount of the liability in respect thereof determined in accordance
with GAAP, (2) any capitalized lease shall be the present value of the
aggregate of the rentals obligation under such capitalized lease
payable over the term thereof that is not subject to termination by the
lessee, (3) any sale of receivables shall be the amount of unrecovered
capital or principal investment of the purchaser (other than CHC or any
of its wholly-owned Subsidiaries) thereof, excluding amounts
representative of yield or interest earned on such investment, (4) any
synthetic lease shall be the stipulated loss value, termination value
or other equivalent amounts, (5) any derivative contract shall be the
maximum amount of any termination or loss payment required to be paid
by such Person if such derivative contract were, at the time of
determination, to be terminated by reason of any event of default or
early termination event thereunder, whether or not such event of
default or early termination event has in
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fact occurred, (6) any equity related purchase obligation shall be the
maximum fixed redemption or purchase price thereof inclusive of any
accrued and unpaid dividends to be comprised in such redemption or
purchase price and (7) any guaranty or other contingent liability
referred to in clause (k) shall be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
guaranty or other contingent obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.
Information. See Section 25.2.
Initial Lenders. See the introductory paragraph to this Credit Agreement.
Intercompany Subordination Agreement. That certain Subordination Agreement,
dated as of the date hereof, among the Borrowers, the Guarantors, the Pledged
Entities and the Administrative Agent, which provides, inter alia, that all
Indebtedness owing to another Borrower, Guarantor or Pledged Entity shall be
subordinated to the full and final payment of the Obligations.
Interest Payment Date. (a) With respect to any outstanding Revolving Loans and,
with respect to clause (a)(i) below, Swingline Loans (i) as to any Base Rate
Loan, the first day of each calendar month (including the month immediately
following the month which includes the Drawdown Date thereof) and the Revolver
Maturity Date, and (ii) as to any LIBOR Rate Loan, the last day of each Interest
Period applicable to such Loan and the Revolver Maturity Date; and (b) with
respect to the outstanding Term Loan (i) as to any Base Rate Loan, the first day
of each calendar month (including the month immediately following the month
which includes the Drawdown Date thereof), the Term Loan Maturity Date and any
date on which any portion of the principal outstanding of the Term Loan is
prepaid, and (ii) as to any LIBOR Rate Loan the last day of each Interest Period
applicable to such Loan, the Term Loan Maturity Date and any date on which any
portion of the principal outstanding of the Term Loan is prepaid; provided,
however, that, with respect to any portion of the Revolving Loans or the Term
Loan, if any Interest Period for a LIBOR Rate Loan exceeds three (3) months, the
respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates.
Interest Period. With respect to all or any relevant portion of each Revolving
Loan or the Term Loan, (a) initially, the period commencing on the Drawdown Date
of such Loan and ending on the last day of one of the periods set forth below,
as selected by the Borrowers in a Loan Request or as otherwise required by the
terms of this Credit Agreement (i) for any Base Rate Loan, each Business Day,
and (ii) for any LIBOR Rate Loan 1, 2, 3, or 6 months, and if available to all
Revolving Credit Lenders or Term Loan Lenders as the case may be, 12 months, and
(b) thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Loan or portion thereof and ending on the
last day of one of the periods set forth above, as selected by the Borrowers in
a Conversion Request; provided that all of the foregoing provisions relating to
Interest Periods are subject to the following:
(a) if any Interest Period with respect to a LIBOR Rate Loan would
otherwise end on a day that is not a Business Day, that Interest Period
shall be extended to the next
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succeeding Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding Business
Day;
(b) if the Borrowers fail to give notice as provided in Section 2.3,
the Borrowers shall be deemed to have requested a conversion of the
affected LIBOR Rate Loan to a Base Rate Loan and the continuance of all
Base Rate Loans as Base Rate Loans on the last day of the then current
Interest Period with respect thereto;
(c) any Interest Period relating to any LIBOR Rate Loan that begins on
the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of a calendar
month; and
(d) any Interest Period relating to any LIBOR Rate Loan that would
otherwise extend beyond the applicable Maturity Date shall end on such
Maturity Date.
Investments. The aggregate amount of capital expenditures, investments, loans,
advances and acquisitions measured as of the last day of the applicable period
less (A) cash on hand at the beginning of the applicable period, (B) proceeds of
Funded Debt, (C) proceeds from equity issuances or other assets that would not
be included in CAD for such period, and (D) proceeds of Permitted Indebtedness.
Issuer Trust. Charter Mac Equity Issuer Trust, a Delaware statutory trust.
Issuer Trust Agreement. 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, CHC, Wilmington Trust Company, as registered trustee, and Related
Charter, L.P., as manager relating to Issuer Trust.
Issuer Trust Common Shares. The common shares of Issuer Trust, and any
securities into or for which such common shares hereafter may be converted or
exchanged, constituting all Capital Stock of Issuer Trust other than the Issuer
Trust Preferred Shares.
Issuer Trust Preferred Shares. 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.
Issuing Bank. See the introductory paragraph to this Credit Agreement.
LC Guaranty. See Section 5.1.1.
Lender or Lenders. See the introductory paragraph to this Credit Agreement. Such
term shall also include any Person that becomes a Lender by way of assignment or
transfer pursuant to this Credit Agreement.
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Letter of Credit. See Section 5.1.1.
Letter of Credit Application. See Section 5.1.1.
Letter of Credit Fee. See Section 5.6.
Letter of Credit Participation. See Section 5.1.4.
LIBOR Business Day. Any day on which commercial banks are open for international
business (including dealings in U.S. dollar deposits) in London.
LIBOR Lending Office. Initially, the office of each Lender designated as such by
notice to the Borrower; thereafter, such other office of such Lender, if any,
that shall be making or maintaining LIBOR Rate Loans.
LIBOR Rate. For any Interest Period with respect to a LIBOR Rate Loan, the rate
per annum as determined on the basis of the offered rates for deposits in
Dollars, for a period of time comparable to such LIBOR Rate Loan which is equal
to the British Bankers Association LIBOR Rate ("BBA LIBOR"), as published by
Reuters (or other commercially available source providing quotations of BBA
LIBOR as designated by the Administrative Agent from time to time)
(collectively, the "Reuters System") as of 11:00 a.m. London time on the day
that is two (2) LIBOR Business Days preceding the first day of the Interest
Period applicable to such LIBOR Rate Loan; provided, however, if the rate
described above does not appear on the Reuters System on any applicable interest
determination date, the LIBOR Rate shall be the rate (rounded upward 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 such LIBOR Rate Loan which are offered by four
major banks in the London interbank market at approximately 11:00 a.m. London
time, on the date that is two (2) LIBOR Business Days preceding the first day of
such Interest Period as selected by the Administrative 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 such
Interest Period 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) LIBOR Business Days
preceding the first day of such LIBOR Rate Loan. In the event that the
Administrative Agent is unable to obtain any such quotation as provided above,
it will be deemed that the LIBOR Rate pursuant to a LIBOR Rate Loan cannot be
determined. In the event that the Board of Governors of the Federal Reserve
System shall impose a Reserve Percentage with respect to LIBOR Rate deposits of
any Lender, then for any period during which such Reserve Percentage shall
apply, the LIBOR Rate shall be equal to the amount determined above divided by
an amount equal to 1 minus the Reserve Percentage.
LIBOR Rate Loans. All or any portion of the Revolving Loans or the Term Loan
bearing interest calculated by reference to the LIBOR Rate.
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Liens. Any encumbrance, mortgage, deed of trust, assignment, attachment, deposit
arrangement, lien (statutory, judgment or otherwise), pledge, hypothecation,
charge, restriction or other security interest, security agreement, or any
interest of any kind securing any obligation of any entity or person, whether
such interest is based on common law, civil law, statute or contract.
Loan Documents. This Credit Agreement, any Notes, the Letter of Credit
Applications, the Letters of Credit, the Guaranties, the Pledge Agreements, the
Fee Letter and any other agreement between or among a Borrower and/or any
Guarantor and the Administrative Agent and/or any Lender relating to fee
arrangements.
Loan Request. A Revolving Loan Request or a Swingline Loan Request.
Loans. Collectively, the Revolving Loans, the Swingline Loans and the Term Loan.
Material Adverse Effect. A material adverse effect on the (i) properties,
assets, financial condition, operations or business of each of the Borrowers and
Guarantors, and their Subsidiaries taken as a whole; (ii) the ability of either
Borrower, any Guarantor or Origination Trust to fully and timely pay or perform
its Obligations under the Loan Documents, (iii) the legality, validity, binding
effect or enforceability against either Borrower, any Guarantor or Origination
Trust of a Loan Document to which it is a party, or (iv) the rights, remedies
and benefits available to, or conferred upon, the Administrative Agent or any
other Creditor Party under any Loan Document.
Maturity Dates. Collectively, the Revolver Maturity Date and the Term Loan
Maturity Date.
Maximum Drawing Amount. The maximum aggregate amount that the beneficiaries may
at any time draw under outstanding Letters of Credit issued for the account of
a Borrower, as such aggregate amount may be reduced from time to time by draws
under such Letters of Credit or otherwise pursuant to the terms of such Letters
of Credit.
Moody's. ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
Multiemployer Plan. Any multiemployer plan within the meaning of Section 3(37)
of ERISA maintained or contributed to by either Borrower, any Guarantor or any
ERISA Affiliate.
Negative Covenants and Financial Covenants. The covenants of the Borrowers and
the Guarantors set forth in Section 10.
Net Proceeds. All cash or other assets actually received by CHC as a result of
the sale of Capital Stock in CHC or any Subsidiary of CHC (as determined in
accordance with GAAP, subject to such adjustments as may be agreed upon by the
Borrowers and the Arrangers), minus (A) customary and reasonable costs and
discounts of issuance paid by CHC or such issuing Subsidiary, as the case may
be, and minus (B) proceeds of such sales that are applied within 30 days of
issuance to retire similar equity instruments.
New Lending Office. See Section 6.3.4.
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New Term Loan. See Section 2.5.2.
Non-U.S. Lender. See Section 6.3.4.
Notes. Any Revolving Notes and any Term Notes as a Lender may request from time
to time pursuant to Section 2.1.4 or Section 2.2.2, as the case may be.
Obligations. All indebtedness, obligations and liabilities of the Borrowers, any
of the Guarantors and their respective Subsidiaries to any of the Lenders, the
Swingline Lender, the Issuing Bank, the Administrative Agent or any of their
Affiliates, individually or collectively, existing on the date of this Credit
Agreement or arising thereafter, direct or indirect, joint or several, absolute
or contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, arising or
incurred under this Credit Agreement or any of the other Loan Documents or any
Derivative Agreement or in respect of any of the Loans made, or any obligations
under Derivative Agreements or Reimbursement Obligations incurred or any of the
Letter of Credit Applications, Letters of Credit or other instruments at any
time evidencing any thereof.
Original Term Loan. See Section 2.5.
Origination Trust. Charter Mac Origination Trust I, a Delaware statutory trust.
Other Taxes. See Section 6.3.2.
Outstanding or outstanding. With respect to the Loans, the aggregate unpaid
principal thereof as of any date of determination.
Participant. See Section 17.4.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002 of ERISA
and any successor entity or entities having similar responsibilities.
Permitted Businesses. See Section 10.12.
Permitted Indebtedness. See Section 10.3.
Permitted Liens. See Section 10.1.
Person. Any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity. Platform. See Section 25.4.
Pledge Agreements. The Pledge Agreements to be executed by each of the holders
of Equity Collateral, on or about the date hereof, or from time to time as
contemplated hereby, substantially in form and content of Exhibit 1.1C, and
otherwise in form and content satisfactory
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to the Administrative Agent, pursuant to which, among other things, such
entities shall pledge and assign to the Administrative Agent, on behalf and for
the benefit of the Lenders, a first priority security interest in, all of such
entities' right, title and interest in and to the Capital Stock of the Person
whose Capital Stock constitutes Equity Collateral.
Pledged Entities. (a) Those Persons who are not Guarantors, but whose Capital
Stock is pledged to secure the Loans as part of the Equity Collateral, and (b)
CharterMac Mortgage Capital.
Public Lender. See Section 25.4.
Register. See Section 17.3.
Regulation D. Regulation D of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other regulation or
official interpretation of said Board of Governors relating to reserve
requirements applicable to member banks of the Federal Reserve System.
Reimbursement Obligation. The Borrowers' obligation to reimburse the
Administrative Agent, the Swingline Lender, the Issuing Bank and the Lenders on
account of any drawing under any Letter of Credit issued for the account of a
Borrower as provided in Section 5.2.
Related Parties. With respect to any specified Person, such Person's Affiliates
and the respective equityholders, directors, trustees, officers, employees,
agents, attorneys, representatives and advisors of such Person and such Person's
Affiliates.
Repayment Obligations. The outstanding amounts to be repaid under the agreements
and instruments, and in the amounts, set forth on Schedule 3.1.1.
Required Lenders. As of any date, any Lender or combination of two or more
Lenders holding at least 51% of the sum of all Term Loans outstanding, all
Revolving Exposure, unused Revolving Loan Commitments and unused Term Loan
Commitments (as such Commitments are reflected on Schedule 2 and as such
Commitments may be reduced from time to time pursuant to Section 2.6).
Reserve Percentage. The maximum aggregate reserve requirement (including all
basic, supplemental, marginal and other reserves) which is imposed on member
banks of the Federal Reserve System against "Eurocurrency Liabilities" as
defined in Regulation D.
Reuters System. See the definition of LIBOR Rate in this Section.
Revolver Maturity Date. August 15, 2009, subject to extension under Section
2.1.2, and acceleration under Section 11.2.1.
Revolving Credit Lender. Each Lender whose Revolving Loan Commitment and
Revolving Loan Commitment Percentage is greater than zero.
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Revolving Credit Limit. $250,000,000, subject to the Accordion Option, and as
may be reduced from time to time pursuant to Section 2.6 or Section 4.2.3.
Revolving Exposure. At any time, the sum of the outstanding amount of all
Revolving Loans, plus the outstanding amount of all Swingline Loans, plus the
Maximum Drawing Amount, plus, without duplication, all Unpaid Reimbursement
Obligations.
Revolving Loan Account. See Section 17.3.
Revolving Loan Commitment. As to any Revolving Credit Lender, the obligation of
such Lender, if any, to make Revolving Loans and participate in Swingline Loans
and Letters of Credit in an aggregate principal and/or face amount not to exceed
the amount set forth under the heading Revolving Loan Commitment opposite such
Lender's name on Schedule 2 or in the Assignment and Acceptance pursuant to
which such Lender became a party hereto, as the same may be changed from time to
time pursuant to the terms hereof.
Revolving Loan Commitment Percentage. With respect to each Revolving Credit
Lender, the percentage set forth opposite its name on Schedule 2 hereto.
Revolving Loan Request. See Section 2.1.6(a).
Revolving Loans. The revolving credit loans made by the Lenders to the Borrowers
pursuant to Section 2.1.
Revolving Notes. See Section 2.1.4.
Risk-Adjusted Contingent Liabilities. Any guaranties or other indirect
contingent Indebtedness with respect to which a risk-adjusted category has been
determined, and with the aggregate amount thereof with respect to Risk-Adjusted
Contingent Liabilities of CHC or CM Corp. to be based upon the risk
classifications and the risk factor weightings associated therewith as set forth
on Exhibit 1.1D. Any potential liabilities arising from matters not clearly
attributable to an existing risk category shall be assigned a risk-rating by the
Administrative Agent in its sole discretion, and upon such assignment Exhibit
1.1D may be revised unilaterally by the Administrative Agent in order to reflect
such new risk category.
SEC. The United States Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of the United States
Securities and Exchange Commission.
Senior Unsecured Indebtedness. Recourse Indebtedness for borrowed money that is
not secured by any of the Borrowers' or any of their Subsidiaries' assets, and
that is not Subordinated Debt, plus contingent liabilities that have become GAAP
liabilities, plus unsecured obligations against CHC arising out of guaranteed
investment contracts. Notwithstanding the foregoing, Senior Unsecured
Indebtedness shall not include any Indebtedness reflected on the balance sheet
of a Person as required by GAAP that arises from deferred fees or other deferred
revenues associated with providing guaranties.
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S&P. Standard & Poor's, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
Solvent. A Person is Solvent if the present fair saleable value of such Person's
assets is greater than the amount that will be required to pay such Person's
probable liability on its existing debts as they become absolute and matured.
Special Servicing Line. The revolving line of credit arising under that certain
9-02 ARCap Special Servicing, Inc. Senior Secured Credit Agreement, dated as of
September 30, 2002, by and between ARCap Special Servicing, Inc. and JPMorgan
Chase Bank, as amended or replaced.
Subordinated Debt. Any of the Borrowers' Indebtedness for borrowed money
subordinated to the payment and performance of the Obligations upon terms and
conditions reasonably acceptable to the Joint Lead Arrangers. Such Indebtedness
will be acceptable to the Joint Lead Arrangers, and therefore will constitute
Subordinated Debt, if such Indebtedness provides for the following: (a) such
Indebtedness is not secured by any interest in the Collateral; (b) payments with
respect to such Indebtedness is prohibited during the existence of either or
both of (i) a Default in any Obligation requiring the payment of money or (ii)
any Event of Default, and (c) the holder of such Indebtedness shall have agreed,
for the benefit of the Lenders, to refrain from pursuing any rights or remedies
with respect to such Indebtedness or with respect to any collateral or security
therefor until such time as the Obligations have been fully and indefeasibly
paid and performed.
Subsidiary. Any corporation, association, trust, partnership, limited liability
company or other business entity of which the designated parent shall at any
time own directly or indirectly through a Subsidiary or Subsidiaries at least a
majority (by number of votes) of the outstanding Voting Stock.
Swingline Commitment. See Section 2.4.1.
Swingline Lender. Bank of America, in its capacity as Lender of Swingline Loans
hereunder or any successor.
Swingline Loan. Any loan made by the Swingline Lender pursuant to Section 2.4.
Swingline Loan Request. See Section 2.4.2.
Taxes. All present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable
thereto.
Term Loan. The term loan advanced to the Borrowers pursuant to Section 2.2.
Term Loan Account. See Section 17.3.
Term Loan Commitment. As to each Term Loan Lender, the commitment of such Lender
to make any portion of the Term Loan hereunder as set forth on Schedule 2, or in
the Assignment and Acceptance pursuant to which such Lender assumed its Term
Loan Commitment, as applicable, as the same may be (a) reduced from time to time
pursuant to Section 2.6, or (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 17.2.
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Term Loan Commitment Percentage. With respect to each Term Loan Lender, the
percentage set forth opposite its name on Schedule 2 hereto.
Term Loan Lender. Each Lender whose Term Loan Commitment and Term Loan
Commitment Percentage is greater than zero.
Term Loan Limit. $250,000,000, subject to the Accordion Option, and as may be
reduced from time to time pursuant to Section 2.6 or Section 4.2.3.
Term Loan Maturity Date. August 15, 2012, subject to acceleration under Section
11.2.1.
Term Notes. See Section 2.2.2.
Total Credit Amount. $500,000,000, subject to increase in connection with the
exercise of the Accordion Option, and to decrease pursuant to Section 2.6.
Total Commitment. The sum of the Commitments of the Lenders, as in effect from
time to time.
Type. As to all or any portion of any Revolving Loan or the Term Loan, its
nature as a Base Rate Loan or LIBOR Rate Loan. All Swingline Loans shall be Base
Rate Loans.
UBS. UBS Securities LLC.
Unpaid Reimbursement Obligation. The Reimbursement Obligations for which the
Borrowers do not reimburse the Administrative Agent and the Lenders on the date
specified in, and in accordance with, Section 5.2.
Unused Facility Fee. See Section 2.1.3.
Valid Business Impediment. With respect to any Person whose CAD is required in
order to satisfy the CAD Covenant, any (a) valid legal prohibition, (b)
contractual impediment required for the ongoing profitable operation of such
Person, or (c) circumstance in which a consent cannot be obtained after
reasonable effort, that would prevent such Person from providing a Guaranty, as
reasonably determined by the Administrative Agent from time to time.
Voting Stock. Capital Stock of any class or classes (however designated), the
holders of which are at the time entitled, as such holders, to vote for the
election of the directors (or persons performing similar functions) of the
corporation, association, trust, partnership, limited liability company or other
business entity involved, whether or not the right so to vote exists by reason
of the happening of a contingency.
1.2 Rules of Interpretation.
(a) Unless otherwise expressly indicated, a reference to any document
or agreement shall include such document or agreement as amended, modified,
restated or
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supplemented from time to time in accordance with its terms and the terms
of this Credit Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) Unless otherwise expressly indicated, a reference to any law or
regulation includes any amendment or modification to, or replacement of,
such law or regulation.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by GAAP applied on a consistent basis by the accounting
entity to which they refer.
(f) The words "include," "includes" and "including" are not limiting.
(g) All terms not specifically defined herein or by GAAP, which terms
are defined in the Uniform Commercial Code as in effect in the State of New
York, have the meanings assigned to them therein, with the term
"instrument" being that term as defined under Article 9 of the Uniform
Commercial Code.
(h) Reference to a particular "Section" refers to that section of this
Credit Agreement unless otherwise indicated.
(i) The words "herein," "hereof," "hereunder" and words of like import
shall refer to this Credit Agreement as a whole and not to any particular
section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation of
periods of time from a specified date to a later specified date, the word
"from" means "from and including," the words "to" and "until" each mean "to
but excluding," and the word "through" means "to and including."
(k) This Credit Agreement and the other Loan Documents may use several
different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are, however,
cumulative and are to be performed in accordance with the terms thereof.
(l) This Credit Agreement and the other Loan Documents are the result
of negotiation among, and have been reviewed by counsel to, among others,
the Administrative Agent, the Lenders, the Guarantors and the Borrowers and
are the product of discussions and negotiations among all parties.
Accordingly, this Credit Agreement and the other Loan Documents are not
intended to be construed against the Administrative Agent or any of the
Lenders, the Swingline Lender or Issuing Bank merely on account of such
Person's involvement in the preparation of such documents.
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(m) If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and
either the Borrowers or the Required Lenders shall so request, the
Administrative Agent, the Lenders, the Borrowers and the Guarantors shall
negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided that, until so amended, (i)
such ratio or requirement shall continue to be computed in accordance with
GAAP prior to such change therein and (ii) the Borrowers shall provide to
the Administrative Agent and the Lenders financial statements and other
documents required under this Credit Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio
or requirement made before and after giving effect to such change in GAAP.
2. REVOLVING LOANS AND TERM LOAN.
-----------------------------
2.1 Revolving Loans.
2.1.1 Commitments to Make Revolving Loans. Subject to the terms and
conditions of this Credit Agreement, each Revolving Credit Lender agrees,
severally and not jointly, to make Revolving Loans to the Borrowers from
time to time during the period commencing on the Closing Date and ending on
the Revolver Maturity Date, from time to time, during which period the
Borrowers may borrow, repay and reborrow in accordance with the terms of
this Credit Agreement, provided, however, that the Borrowers shall not be
permitted to borrow Revolving Loans hereunder to the extent that (a) such
borrowing would cause the total Revolving Exposure to exceed the Revolving
Credit Limit, or (b) a Default has occurred and is continuing or would
otherwise be caused by such borrowing.
In the event that such borrowing would cause the total Revolving Exposure
to exceed the Revolving Credit Limit, the Borrowers agree that such event
shall be an Event of Default unless the Borrowers shall, within two (2)
Business Days after notice of such excess from the Administrative Agent,
pay cash to the Administrative Agent in such amount as shall be necessary
to eliminate such excess.
2.1.2 Extension of Revolver Maturity Date. The Borrowers may request
that the Revolver Maturity Date be extended for a period of one year
provided that (a) there does not exist a Default at the time of such
request and at the time such request would take effect, and (b) the
Borrowers pay, on or before the Revolver Maturity Date that is then being
extended, to the Administrative Agent for the pro rata benefit of the
Lenders in accordance with their respective Revolving Loan Commitment
Percentages an extension fee equal to 0.20% of the Revolving Credit Limit
then in effect. In order to request such extension, the Borrowers must
notify the Administrative Agent no more than one hundred twenty (120) days
or less than thirty (30) days prior to the expiration of the original
Revolver Maturity Date.
2.1.3 Unused Facility Fee. The Borrowers agree to pay to the
Administrative Agent for the pro rata benefit of the Lenders in accordance
with their respective
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Revolving Loan Commitment Percentages a fee (the "Unused Facility Fee")
calculated as follows:
(a) Each day prior to the Revolver Maturity Date that the "Daily
Unused Amount" (as defined below) equals or exceeds 50% of the
Revolving Credit Limit then in effect, the Unused Facility Fee will
accrue at the rate of 0.20% per annum (based on a 360 day year) times
the Daily Unused Amount.
(b) Each day prior to the Revolver Maturity Date that the Daily
Unused Amount is less than 50% of the Revolving Credit Limit then in
effect, the Unused Facility Fee will accrue at the rate of 0.125% per
annum (based on a 360 day year) times the Daily Unused Amount.
(c) The Unused Facility Fee as calculated under this Section for
each day of such Fiscal Quarter shall be payable quarterly in arrears
on the first day of each Fiscal Quarter for the immediately preceding
Fiscal Quarter commencing on the first such date following the date
hereof, with a final payment on the Revolver Maturity Date or any
earlier date on which the Revolving Loan Commitments shall terminate.
(d) For purposes of the forgoing, the "Daily Unused Amount" shall
mean (i) the Revolving Credit Limit then in effect, minus (ii) the
Revolving Exposure, determined on a daily basis.
2.1.4 Revolving Notes. At the request from time to time of any
Revolving Credit Lender, such Lender's portion of the Revolving Loan
Commitment shall be evidenced by a separate promissory note made by the
Borrowers payable to the order of such Lender in substantially the form of
Exhibit 2.1.4 hereto (each a "Revolving Note"), dated as of the Closing
Date (or such other date on which such Lender may become a Revolving Credit
Lender in accordance with Section 17 hereof) and completed with appropriate
insertions. Any such Revolving Note shall be payable to the order of such
Lender in a principal face amount equal to such Lender's Revolving Loan
Commitment and representing the joint and several obligations of the
Borrowers to pay to such Lender such principal amount or, if less, the
outstanding amount of all Revolving Loans actually made by such Lender as
reflected from time to time in the Revolving Loan Account, plus interest
accrued thereon, as set forth below.
2.1.5 Interest on Revolving Loans. Except as otherwise provided in
Section 6.13:
(a) Each Revolving Loan which is a Base Rate Loan shall bear
interest for each day such Loan is outstanding at the rate per annum
equal to the Base Rate plus the Applicable Margin as in effect from
time to time applicable to Revolving Loans that are Base Rate Loans.
(b) Each Revolving Loan which is a LIBOR Rate Loan shall bear
interest for the period commencing with the Drawdown Date thereof and
ending
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on the last day of the Interest Period with respect thereto at the
rate per annum equal to the LIBOR Rate determined for such Interest
Period plus the Applicable Margin as in effect from time to time
applicable to Revolving Loans that are LIBOR Rate Loans.
(c) The Borrowers promise to pay interest on each Revolving Loan
in arrears on each Interest Payment Date with respect thereto.
2.1.6 Requests for Revolving Loans.
(a) Except with respect to Swingline Loans, the Borrowers shall
give to the Administrative Agent written notice in the form of Exhibit
2.1.6 hereto of each Revolving Loan requested hereunder (a "Revolving
Loan Request") by no later than 1:00 p.m. Eastern time no less than
(a) one (1) Business Day prior to the proposed Drawdown Date of any
Base Rate Loan and (b) three (3) Business Days prior to the proposed
Drawdown Date of any LIBOR Rate Loan. Each such notice shall specify
(i) the principal amount of the Revolving Loan requested, (ii) the
proposed Drawdown Date of such Revolving Loan, (iii) the Type of such
Revolving Loan and (iv) the Interest Period for such Revolving Loan
that is to be a LIBOR Rate Loan. Promptly upon receipt of any such
notice, the Administrative Agent shall notify each of the Lenders
thereof. Each Revolving Loan Request shall be irrevocable and binding
on the Borrowers and shall obligate the Borrowers to accept the
Revolving Loan requested from such Lenders on the proposed Drawdown
Date. Each Revolving Loan Request with respect to a Base Rate Loan
shall be in a minimum aggregate amount of $500,000 and integral
multiples of $100,000 in excess thereof and each Revolving Loan
Request with respect to a LIBOR Rate Loan shall be in a minimum
aggregate amount of $1,000,000 and integral multiples of $100,000 in
excess thereof.
(b) Each Revolving Loan that is advanced under this Credit
Agreement shall be made by all of the Revolving Credit Lenders
simultaneously and proportionately to their respective Revolving Loan
Commitment Percentages, it being understood that no Revolving Credit
Lender shall be responsible for any default by any other Revolving
Credit Lender in such Delinquent Lender's obligation to make a
Revolving Loan requested hereunder nor shall the Revolving Loan
Commitment of any Lender to make any Revolving Loan be increased or
decreased as a result of a default by a Delinquent Lender in the
Delinquent Lender's obligation to make a Revolving Loan requested
hereunder. No later than 4:00 p.m. Eastern time on the date that the
Administrative Agent receives a Revolving Loan Request, the
Administrative Agent shall notify each Revolving Credit Lender of such
Revolving Loan request. Each Revolving Credit Lender shall make the
amount of its Revolving Loan available to the Administrative Agent, in
same day funds, at the office of the Administrative Agent located at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, not later than 1:00 p.m.
Eastern time on the date on which the Revolving Loan is to be made.
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(c) Except as provided in Section 5 with respect to Revolving
Loans to be used to reimburse the Administrative Agent or Issuing Bank
for the amount of any drawing under a Letter of Credit, upon
satisfaction or waiver of the conditions precedent specified in
Section 7, the Administrative Agent shall make the proceeds of such
Revolving Loan available to the Borrowers by causing an amount of same
day funds equal to the proceeds of such Revolving Loan received by the
Administrative Agent from the Revolving Credit Lenders to be credited
to the account of the Borrowers at the Administrative Agent.
(d) Unless the Administrative Agent shall have been notified by
any Revolving Credit Lender prior to the date on which a Revolving
Loan is to be advanced that such Revolving Credit Lender does not
intend to make available to the Administrative Agent the amount of
such Revolving Credit Lender's Revolving Loan requested on such date,
the Administrative Agent may assume that such Revolving Credit Lender
has made such amount available to the Administrative Agent on such
date and that the Administrative Agent may, in its sole discretion,
but shall not be obligated to, make available to the Borrowers a
corresponding amount on the date of such advance. If such
corresponding amount is not in fact made available to the
Administrative Agent by such Revolving Credit Lender, the
Administrative Agent shall be entitled to recover such corresponding
amount on demand from such Delinquent Lender together with (i)
interest thereon, for each day from the advance of such Revolving Loan
until the date such amount is paid to the Administrative Agent, at the
greater of the rate of interest accruing on such Revolving Loan and a
rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation, plus (ii) any
administrative, processing or similar fees customarily charged by the
Administrative Agent in connection with the foregoing. If such
Delinquent Lender does not pay such corresponding amount forthwith
upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the Borrowers and the Borrowers shall
immediately pay such corresponding amount to the Administrative Agent
together with interest thereon, for each day such Revolving Loan is
outstanding, at the rate payable under this Credit Agreement with
respect to such Revolving Loan.
(e) Nothing in this Section shall be deemed to relieve any
Delinquent Lender from its obligation to fulfill its Revolving Loan
Commitment hereunder, to prejudice any rights that the Borrowers may
have against any Delinquent Lender as a result of any default by such
Delinquent Lender hereunder, or to require the Borrowers to pay more
than the rate of interest otherwise applicable to the principal
amounts outstanding.
2.2 Term Loan.
2.2.1 Commitments to Make Term Loan. Subject to the terms and
conditions set forth in this Credit Agreement, each Lender agrees,
severally and not jointly, to lend to the Borrowers on the Closing Date the
amount of its Term Loan Commitment
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Percentage of the Term Loan. On the Closing Date the total Term Loan shall
be $250,000,000.00.
2.2.2 Term Notes. At the request from time to time of any Term Loan
Lender such Lender's portion of the Term Loan shall be evidenced by a
separate promissory note made by the Borrowers payable to the order of such
Lender in substantially the form of Exhibit 2.2.2 hereto (each a "Term
Note"), dated the Closing Date (or such other date on which such Lender may
become a Term Loan Lender in accordance with Section 17 hereof) and
completed with appropriate insertions. Any such Term Note shall be payable
to the order of such Lender in a principal face amount equal to such
Lender's Term Loan Commitment and representing the joint and several
obligations of the Borrowers to pay to such Lender such principal amount
or, if less, the outstanding amount of the Term Loan actually made by such
Lender as reflected from time to time in the Term Loan Account, plus
interest accrued thereon, as set forth below.
2.2.3 Interest on Term Loan. Except as otherwise provided in Section
6.13:
(a) To the extent that all or any portion of the Term Loan bears
interest at the Base Rate, the Term Loan or such portion shall bear
interest at the rate per annum equal to the Base Rate plus the
Applicable Margin as in effect from time to time applicable to all or
any portion of the Term Loan bearing interest at the Base Rate.
(b) To the extent that all or any portion of the Term Loan bears
interest at the LIBOR Rate, the Term Loan or such portion shall bear
interest during the applicable Interest Period at the rate per annum
equal to the LIBOR Rate determined for such Interest Period plus the
Applicable Margin as in effect from time to time applicable to all or
any portion of the Term Loan bearing interest at the LIBOR Rate.
(c) The Borrowers promise to pay interest on the Term Loan or any
portion thereof in arrears on each Interest Payment Date with respect
thereto.
2.3 Types of Loans: Conversion and Continuation Options.
2.3.1 Conversion to Different Type of Loan. The Borrowers may elect
from time to time, by giving the Administrative Agent written notice in the
form of Exhibit 2.3.1 by 1:00 p.m. Eastern time, to convert any portion of
the outstanding Loans (other than Swingline Loans) to a Loan of another
Type, provided that (a) with respect to any such conversion of a LIBOR Rate
Loan to a Base Rate Loan, the Borrowers shall give the Administrative Agent
at least three (3) Business Days prior written notice of such election; (b)
with respect to any such conversion of a Base Rate Loan to a LIBOR Rate
Loan, the Borrowers shall give the Administrative Agent at least three (3)
Business Days prior written notice of such election; (c) with respect to
any such conversion of a LIBOR Rate Loan into a Base Rate Loan, such
conversion shall only be made on the last day of the Interest Period with
respect thereto unless the Borrowers pay breakage fees to the extent
required pursuant to Section 6.12, and (d) no Loan may be converted into,
or
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continued as, a LIBOR Rate Loan when any Default has occurred and is
continuing. Promptly upon the receipt of any such election, the
Administrative Agent shall notify the Lenders thereof. On the date on which
such conversion is being made, each Lender shall take such action as is
necessary to transfer its Commitment Percentage of such Loans to its
Domestic Lending Office or its LIBOR Lending Office, as the case may be.
All or any part of outstanding Loans (other than Swingline Loans) of any
Type may be converted into a Loan of another Type as provided herein,
provided that any partial conversion with respect to Loans shall be in an
aggregate principal amount of $1,000,000 or whole multiples of $1,000,000
in excess thereof. Each Conversion Request by the Borrowers relating to the
conversion of any portion of the Loans to a LIBOR Rate Loan shall be
irrevocable.
2.3.2 Continuation of Type of Loan. Any portion of the Loans of any
Type may be continued as a Loan of the same Type upon the expiration of an
Interest Period with respect thereto by the Borrowers giving to the
Administrative Agent written notice in the form of Exhibit 2.3.1 by 1:00
p.m. Eastern time, to continue any portion of the outstanding Loans (other
than Swingline Loans) as a Loan of such Type; provided that no LIBOR Rate
Loan may be continued as such when any Default has occurred and is
continuing, but shall be automatically converted to a Base Rate Loan on the
last day of the first Interest Period relating thereto ending during the
continuance of any Default of which officers of the Administrative Agent
active upon the Borrowers' account have actual knowledge. In the event that
the Borrowers fail to provide any notice with respect to the continuation
of any LIBOR Rate Loan, then such LIBOR Rate Loan shall be automatically
converted to a Base Rate Loan on the last day of the Interest Period
relating thereto. The Administrative Agent shall notify the Lenders thereof
promptly when any such automatic conversion contemplated by this Section is
scheduled to occur.
2.3.3 LIBOR Rate Loans. Any conversion to or from LIBOR Rate Loans
shall be in such amounts and be made pursuant to such elections so that,
after giving effect thereto, the aggregate principal amount of all LIBOR
Rate Loans having the same Interest Period shall not be less than
$1,000,000 or whole multiples of $1,000,000 in excess thereof. No more than
twelve (12) LIBOR Rate Loans having different Interest Periods may be
outstanding at any time.
2.3.4 Notification by Borrowers. The Borrowers shall notify the
Administrative Agent, such notice to be irrevocable, at least three (3)
Business Days prior to the Drawdown Date of any portion of the Loans if all
or any portion of the Loans is to bear interest at the LIBOR Rate. After
any portion of the Loans has initially been made, the provisions of
Sections 2.3.1 and 2.3.2 shall apply mutatis mutandis with respect to such
portion of the Loans so that the Borrowers may have the same interest rate
options with respect to such portion of the Loans outstanding from time to
time.
2.3.5 Amounts, Etc. Any portion of the Loan bearing interest at the
LIBOR Rate relating to any Interest Period shall be in the amount of
$1,000,000 or an integral amount thereof. No Interest Period relating to
the Term Loan or any portion thereof bearing interest at the LIBOR Rate
shall extend beyond the date on which a regularly scheduled installment
payment of the principal of the Term Loan is to be made unless a
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portion of the Term Loan at least equal to such installment payment has an
Interest Period ending on such date or is then bearing interest at the Base
Rate.
2.4 Swingline Loans.
2.4.1 Swingline Commitment. Subject to the terms and conditions set
forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrowers from time to time prior to the Revolver Maturity Date (the
"Swingline Commitment"), in an aggregate principal amount at any time
outstanding that will not result in (i) the aggregate principal amount of
outstanding Swingline Loans exceeding $25,000,000 or (ii) the aggregate
Revolving Exposure exceeding the Revolving Credit Limit; provided, that the
Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrowers may
borrow, repay and reborrow Swingline Loans.
2.4.2 Swingline Loan Borrowing Procedure. To request a Swingline Loan,
the Borrowers shall deliver a duly completed and executed written notice in
the form of Exhibit 2.4.2 hereto to the Administrative Agent and the
Swingline Lender not later than 2:00 p.m. Eastern time, on the day of a
proposed Swingline Loan (a "Swingline Loan Request"). Each such request
shall be irrevocable and shall specify the requested date (which shall be a
Business Day) and the amount of the requested Swingline Loan. Each
Swingline Loan shall be a Base Rate Loan. The Swingline Lender shall make
each Swingline Loan available to the Borrowers by means of a credit to the
general deposit account of a Borrower with the Swingline Lender (or, in the
case of a Swingline Loan made to finance the repayment of a Reimbursement
Obligation as provided in Section 5.2, by remittance to the Issuing Bank)
by 3:00 p.m. Eastern time, on the requested date of such Swingline Loan.
The Borrowers shall not request a Swingline Loan if at the time of or
immediately after giving effect to the advance contemplated by such request
a Default has occurred and is continuing or would result therefrom. Each
Swingline Loan Request shall be made in a minimum aggregate amount of
$500,000 or integral multiples of $100,000 above such amount.
2.4.3 Prepayment. The Borrowers shall have the right at any time and
from time to time to repay any Swingline Loan, in whole or in part, before
2:00 p.m. Eastern time, on the proposed date of repayment.
2.4.4 Participations. The Swingline Lender may, at any time in its
discretion, by written notice given to the Administrative Agent (provided
such notice requirement shall not apply if the Swingline Lender and the
Administrative Agent are the same entity) not later than 11:00 a.m. Eastern
time, on the next succeeding Business Day following such notice, require
the Revolving Credit Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans then outstanding. Such notice
shall specify the aggregate amount of Swingline Loans in which Revolving
Credit Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Revolving Credit
Lender, specifying in such notice such Revolving Credit Lender's pro rata
share of such Swingline Loan or Swingline Loans
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proportional to each Revolving Credit Lender's Revolving Loan Commitment
Percentage. Each Revolving Credit Lender hereby absolutely and
unconditionally agrees, severally but not jointly, upon receipt of notice
as provided above, to pay to the Administrative Agent, for the account of
the Swingline Lender, such Revolving Credit Lender's Revolving Loan
Commitment Percentage of such Swingline Loan or Swingline Loans. Each
Revolving Credit Lender acknowledges and agrees that its obligation to
acquire participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or
reduction or termination of the Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever (so long as such payment shall not cause such Lender's actual
share of the Revolving Exposure to exceed such Lender's Revolving Loan
Commitment). Each Revolving Credit Lender shall comply with its obligation
under this paragraph by wire transfer of immediately available funds, in
the same manner as provided in Section 6.2 with respect to Loans made by
such Lender (and Section 2.1.1 shall apply, mutatis mutandis, to the
funding obligations of the Revolving Credit Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts
so received by it from the Revolving Credit Lenders. The Administrative
Agent shall notify the Borrowers of any participations in any Swingline
Loan acquired by the Revolving Credit Lenders pursuant to this paragraph,
and thereafter payments in respect of such Swingline Loan shall be made to
the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Borrowers (or other party on
behalf of the Borrowers) in respect of a Swingline Loan after receipt by
the Swingline Lender of the proceeds of a sale of participations therein
shall be promptly remitted to the Administrative Agent. Any such amounts
received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Revolving Credit Lenders that shall have made
their payments pursuant to this paragraph, as their interests may appear.
The purchase of participations in a Swingline Loan pursuant to this
paragraph shall not relieve the Borrowers of any Default in the payment
thereof.
2.5 Accordion Option. Provided there is not then in existence any Default,
the Borrowers may elect by written notice to the Administrative Agent and the
Arrangers, on no more than two occasions, of their intent to exercise the
Accordion Option. Promptly upon receipt of such written notice, the Arrangers
will use commercially reasonable efforts to arrange to increase the Total Credit
Amount by up to an additional $200,000,000 in the aggregate. The Borrowers'
rights to exercise the Accordion Option shall expire on the second anniversary
of this Credit Agreement. Any such increase in the Total Credit Amount may be
accomplished by (a) an increase in the Revolving Credit Limit, (b) an increase
in the Term Loan Limit, or (c) an increase in the Revolving Credit Limit and the
Term Loan Limit. Any increase in the Term Loan Limit in connection with the
exercise of the Accordion Option may be accomplished by (i) increasing the Term
Loan Limit with respect to the Term Loan then outstanding (the "Original Term
Loan"), or (ii) the making of a Term Loan upon terms and conditions different
than the Original Term Loan. Any exercise of the Accordion Option must be
exercised, with respect to increases in the Revolving Credit Limit and the Term
Loan Limit in the aggregate, in a minimum amount, and in increments, of
$25,000,000. Notwithstanding the foregoing, in no event shall any
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Lender be obligated to increase its Commitment in connection with any exercise
by the Borrowers of the Accordion Option.
2.5.1 Accordion Option to Increase the Revolving Credit Limit. In the
event that the Borrowers elect to exercise the Accordion Option by
increasing the Revolving Credit Limit, the terms and conditions of such
increase will be applicable to, and incorporated in, the then outstanding
Revolving Loans and such revised terms and conditions shall be applicable
to all then existing Revolving Credit Lenders and each Person who becomes a
Revolving Credit Lender in connection with such increase to the Revolving
Credit Limit. Any such increase in the Revolving Credit Limit shall be upon
terms and conditions that are agreed upon by, and acceptable to, the
Borrowers, the Administrative Agent, the Agents and the Arrangers. As
applied to Revolving Credit Lenders prior to such increase in the Revolving
Credit Limit, any amendments or modifications to the terms and conditions
applicable to the Revolving Loans shall be entered into in accordance with
the terms of Section 23.1.
2.5.2 Accordion Option to Increase the Term Loan. In the event that
the Borrowers elect to exercise the Accordion Option by increasing the Term
Loan Limit, such exercise may be accomplished by including the increased
Term Loan Limit within the Original Term Loan, whereupon all of the terms
and conditions applicable to the Term Loan as so increased will be
applicable to the then existing Term Loan Lenders as well as to any
additional Persons becoming Term Loan Lenders in connection with such
increase in the Term Loan Limit. Alternatively, the Borrowers may elect to
increase the Term Loan Limit by agreeing to a separate and distinct Term
Loan (a "New Term Loan") upon terms and conditions mutually agreed to by
the Borrowers, the Administrative Agent, the Agents and the Arrangers, but
with such terms and conditions not being applicable to the Original Term
Loan; provided, however, that (a) amortization payments of such New Term
Loan shall be no greater than the ratable and proportionate amortization
payments on a percentage basis on the Original Term Loan, (b) the New Term
Loan shall not be senior to the Original Term Loan with respect to
mandatory prepayments, optional prepayments and any other payment rights,
and (c) the interest rate applicable to any such New Term Loan shall be no
more than 25 basis points greater than the interest rate applicable to the
Original Term Loan. Any such interest rate differential may be accomplished
by issuing any portion of the New Term Loan with original issue discount or
upfront fees as the Borrowers, the Administrative Agent, the Agents, the
Arrangers and the Lenders of the New Term Loan may agree.
2.6 Reduction of Commitments. Provided that there is then no outstanding
Default and that no Default will be caused by such reduction, the Borrowers
shall have the right, without premium or penalty (except as otherwise set forth
herein), at any time and from time to time upon three (3) Business Days prior
written notice to the Administrative Agent to reduce by $3,000,000, or integral
multiples of $1,000,000 in excess thereof, or to terminate entirely, (a) the
Term Loan Limit in excess of the then outstanding Term Loans, or (b) the
Revolving Credit Limit in excess of the then outstanding Revolving Exposure,
provided that the Revolving Credit Limit may not be reduced below $75,000,000
unless all Revolving Loans are paid and performed in full and the Revolving
Credit Limit is reduced to zero. In the event of any such reduction, the
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Commitments of the Lenders shall be either (i) reduced pro rata in accordance
with their respective Revolving Loan Commitment Percentages or Term Loan
Commitment Percentages, as the case may be, of the amount specified in such
notice, or (ii) as the case may be, terminated. Promptly after receiving any
notice from the Borrowers delivered pursuant to this Section, the Administrative
Agent will notify the Lenders of the substance thereof. Upon the effective date
of any such reduction or termination, the Borrowers shall pay to the
Administrative Agent for the respective pro rata accounts of such Lenders the
full amount of any Unused Facility Fee or other Fee then accrued on the amount
of the reduction. No reduction or termination of the Commitments may be
reinstated. Upon any reduction or termination of one but not both of the
aggregate Revolving Loan Commitments or Term Loan Commitments of all the
Revolving Credit Lenders and Term Loan Lenders, respectively, pursuant to this
Section, the Administrative Agent will circulate to the Borrowers and each of
the Lenders a revised Schedule 2 reflecting such reduction or termination.
3. USE OF PROCEEDS
---------------
3.1 Use of Proceeds. The proceeds of the Revolving Loans, the Swingline
Loans and the Term Loan shall be used solely and exclusively for the following
purposes:
3.1.1 Use of Revolving Loans and Swingline Loans. The proceeds of the
Revolving Loans and Swingline Loans shall be used as follows:
(a) to finance the Borrowers' working capital from time to time
in order to facilitate the ongoing operations of the Borrowers in the
ordinary course of their business or as otherwise expressly
contemplated by this Credit Agreement; and
(b) with respect to Revolving Loans, to fund repayment of that
portion of the Repayment Obligations described on Schedule 3.1.1.
3.1.2 Use of Term Loan. The proceeds of the Term Loan shall be used as
follows:
(a) to consummate the ARCap Acquisition as provided in the ARCap
Acquisition Agreement, in the amount described on Schedule 3.1.1;
(b) to the extent not fully utilized to consummate the ARCap
Acquisition, to fund repayment of a portion of the Repayment
Obligations in the amount described on Schedule 3.1.1; and
(c) In the event the Accordion Option is exercised so as to
increase the Term Loan Limit, the incremental proceeds of the Term
Loan arising out of such increase shall be used as the Term Loan
Lenders making such additional advances may agree.
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4. REPAYMENT OF REVOLVING LOANS AND TERM LOAN.
------------------------------------------
4.1 Revolving Loans.
4.1.1 Maturity. The Borrowers promise to pay on the Revolver Maturity
Date, and there shall become absolutely due and payable on the Revolver
Maturity Date, all of the Revolving Loans outstanding on such date,
together with any and all accrued and unpaid interest thereon and all other
fees and other amounts and Obligations then accrued and outstanding with
respect thereto.
4.1.2 Optional Repayments of Revolving Loans. The Borrowers shall have
the right, at their election, to repay all or any portion of the
outstanding Revolving Loans, at any time without penalty or premium,
provided that any full or partial prepayment of the outstanding amount of
any Revolving Loans that are LIBOR Rate Loans may be made only on the last
day of the Interest Period relating thereto (unless breakage costs are paid
by the Borrowers pursuant to Section 6.12). The Borrowers shall provide to
the Administrative Agent, no later than 12:00 noon Eastern time, at least
three (3) Business Days prior written notice of any proposed prepayment of
any LIBOR Rate Loans pursuant to this Section, specifying the proposed date
of prepayment and the principal amount to be prepaid. Any partial
prepayment of the Revolving Loans shall be accompanied by the payment of
accrued interest on the principal prepaid to the date of prepayment and
shall be applied, in the absence of instruction by the Borrowers, first to
the principal of Revolving Loans which are Base Rate Loans and second to
the principal of Revolving Loans which are LIBOR Rate Loans. Each partial
prepayment shall be allocated among the Lenders, in proportion to their
respective Revolving Loan Commitment Percentages, to the respective unpaid
principal amount of each such Lender's outstanding Revolving Loans as
reflected in the Revolving Loan Account No amount repaid with respect to
the Term Loan may be reborrowed.
4.2 Term Loan.
4.2.1 Amortization of Term Loan. The Borrowers shall repay to the
Administrative Agent, for the ratable benefit of the Term Loan Lenders in
accordance with their respective Term Loan Commitments, the principal
amount of the Term Loan in quarterly installments, each in the amount of
$625,000 (as such amount may be proportionally increased as determined by
the Administrative Agent from time to time in connection with an exercise
of the Accordion Option in accordance with Section 2.5 resulting in an
increase in the outstanding principal balance of the Original Term Loan).
Such quarterly installments of principal shall be due and payable on the
last Business Day of each Fiscal Quarter with the first such installment
due and payable on December 31, 2006. All remaining outstanding amounts of
the Term Loan shall be due and payable in full on the Term Loan Maturity
Date.
4.2.2 Mandatory Prepayments of Term Loan. Concurrently with the
receipt by CHC or any of its Subsidiaries of:
(a) any Asset Sale Proceeds received by CHC or such Subsidiary
during the term of this Credit Agreement;
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(b) net cash proceeds received by CHC or such Subsidiary from
Casualty Events which have not been utilized by CHC or such Subsidiary
to repair or replace the property so damaged, destroyed or taken
within one hundred eighty (180) days of receipt of such proceeds (or
within 365 days of such receipt if a contract for such utilization is
executed and delivered within 365 days of such receipt);
the Borrowers shall pay to the Administrative Agent for the respective
accounts of the Lenders an amount equal to 100% of such proceeds, to be
applied in the manner set forth in Section 4.2.3. Notwithstanding the
foregoing, the provisions of this Section shall not impair any restrictions
or prohibitions set forth in the Loan Documents with respect to the
incurrence of Indebtedness or the consummation of any asset sales by CHC or
any of its Subsidiaries.
4.2.3 Application of Mandatory Repayments. All payments made pursuant
to Section 4.2.2 shall be applied (a) first, to repay the outstanding
principal amount of the Term Loan, with such payments to be applied against
the portion of such principal as is intended to become due and payable on
the Term Loan Maturity Date and then against the remaining scheduled
quarterly installments of principal of the Term Loan in reverse order of
their maturity (i.e., such payments to be applied first against the
quarterly installments to be paid last) on a pro rata basis and pro rata
among the Lenders in accordance with their respective Term Loan Commitment
Percentages; and (b) then, upon payment in full of all outstanding
principal amounts of the Term Loan, to repay the outstanding principal
amount of the Revolving Loans. Any such payments shall permanently reduce
the Term Loan Limit and Revolving Credit Limit and the related Commitments
and may be held by the Administrative Agent, for the benefit of the Issuing
Bank and the Lenders, as Cash Collateral for the then Maximum Drawing
Amount of outstanding Letters of Credit (to the extent such outstanding
Maximum Drawing Amount exceeds the Revolving Credit Limit as so reduced)
("Cash Collateral"). Such mandatory prepayments shall be allocated among
the Lenders in proportion to their respective Term Loan Commitment
Percentages and Revolving Loan Commitment Percentages, as the case may be.
4.2.4 Optional Prepayments of Term Loan. The Borrowers shall have the
right at any time to prepay the Term Loan on or before the Maturity Date as
a whole, or in part, without premium or penalty, provided that the minimum
optional prepayment amount shall equal or exceed $1,000,000, upon not less
than one (1) Business day with respect to Base Rate Loans and three (3)
Business Days with respect to LIBOR Rate Loans prior written notice to the
Administrative Agent provided that (a) no portion of the Term Loan bearing
interest at the LIBOR Rate may be prepaid pursuant to this Section except
on the last day of the Interest Period relating thereto (unless breakage
costs are paid by the Borrowers pursuant to Section 6.12) and (b) each
partial prepayment shall be allocated among the Lenders, in proportion to
their respective Term Loan Commitment Percentages, to the respective unpaid
principal amount of each such Lender's outstanding portion of the Term Loan
as reflected in the Term Loan Account. Any prepayment of principal of the
Term Loan shall be accompanied by payment in full of all interest
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accrued to the date of prepayment on the amount being prepaid and shall be
applied pro rata to the remaining scheduled installments of the Term Loan
on a pro rata basis and pro rata among the Lenders. No amount prepaid with
respect to the Term Loan may be reborrowed.
4.3 Swingline Loans. The Borrowers shall repay the then unpaid
principal amount of each Swingline Loan on the Revolver Maturity Date, and
may repay the then unpaid principal amount of each Swingline Loan on the
first date after such Swingline Loan is made that is the fifteenth or last
day of a calendar month and is at least two Business Days after such
Swingline Loan is made. In the event the Borrowers do not otherwise repay a
Swingline Loan on the fifteenth or last day of a calendar month, such
Swingline Loan shall automatically become a Revolving Loan bearing interest
at the Base Rate applicable to Revolving Loans advanced by the
Administrative Agent ratably for all the Revolving Credit Lenders, on the
date such Swingline Loan becomes a Revolving Loan. With respect to such
Swingline Loans in which the Revolving Credit Lenders have not acquired
participations in accordance with Section 2.4.4, promptly upon such
Swingline Loan automatically becoming a Revolving Loan, the Administrative
Agent will give notice thereof to each Revolving Credit Lender, specifying
in such notice such Revolving Credit Lender's pro rata share of such
Revolving Loan proportional to each Revolving Credit Lender's Revolving
Loan Commitment Percentage. Each Revolving Credit Lender hereby absolutely
and unconditionally agrees, severally but not jointly, upon receipt of such
notice to pay to the Administrative Agent such Revolving Credit Lender's
Revolving Loan Commitment Percentage of such Revolving Loan. Each Revolving
Credit Lender acknowledges and agrees that its obligation to pay its
proportionate share of such Revolving Loan shall not be affected by any
circumstances whatsoever, including the occurrence and continuance of a
Default or reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding or
reduction whatsoever (so long as such payment shall not cause such
Revolving Credit Lender's actual share of the Revolving Exposure to exceed
such Lender's Revolving Loan Commitment). Each Revolving Credit Lender
shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 6.2
with respect to Loans made by such Lender.
5. LETTERS OF CREDIT.
----------------
5.1 Letter of Credit Commitments.
5.1.1 Commitment to Issue Letters of Credit. Subject to the terms and
conditions hereof and the execution and delivery by the Borrowers of a
letter of credit application on the Issuing Bank's customary form (a
"Letter of Credit Application"), the Issuing Bank on behalf of the
Revolving Credit Lenders and in reliance upon the agreement of such Lenders
set forth in Section 5.1.4 and upon the representations and warranties of
the Borrowers contained herein, agrees to issue, extend and renew for the
account of the Borrowers one or more standby or documentary letters of
credit (each individually, a "Letter of Credit"), in such form as may be
requested from time to time by one of the Borrowers and agreed to by the
Issuing Bank; and the Administrative Agent (if different than the Issuing
Bank) shall, on behalf of the Revolving Credit Lenders and in reliance upon
the agreement of such Lenders set forth in Section 5.1.4 and upon the
representations and warranties of the Borrowers contained herein, agrees to
enter into an LC Guaranty to support the
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Reimbursement Obligations of the Borrowers with respect to Letters of
Credit requested by a Borrower (an "LC Guaranty"); provided, however, that
after giving effect to such request, (i) the sum of the aggregate Maximum
Drawing Amount on all Letters of Credit and all Unpaid Reimbursement
Obligations shall not exceed $50,000,000 at any one time and (ii) the
Revolving Exposure shall not exceed the Revolving Credit Limit at such
time.
5.1.2 Letter of Credit Applications. Each Letter of Credit Application
shall be completed to the reasonable satisfaction of the Administrative
Agent and the Issuing Bank. In the event that any provision of any Letter
of Credit Application shall be inconsistent with any provision of this
Credit Agreement, then the provisions of this Credit Agreement shall, to
the extent of any such inconsistency, govern.
5.1.3 Terms of Letters of Credit. Each Letter of Credit issued,
extended or renewed hereunder shall, among other things, (a) provide for
the payment of sight drafts for honor thereunder when presented in
accordance with the terms thereof and when accompanied by the documents
described therein, and (b) have an expiration date no later than the date
which is thirty (30) days (or, if the Letter of Credit is confirmed by a
confirmer or otherwise provides for one or more nominated persons, sixty
(60) days) prior to the Revolving Loan Maturity Date. Subject to clause (b)
above, each Letter of Credit shall expire (without giving effect to any
extension thereof by reason of an interruption of business) at or prior to
the close of business 365 days, in the case of standby Letters of Credit,
or 180 days, in the case of documentary Letters of Credit, after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, 365 days or 180 days, as applicable, after such renewal
or extension) provided that the Issuing Bank may, in its sole and absolute
discretion, agree to issue any such standby Letter of Credit providing for
automatic extensions thereof to a date not later than 365 days beyond its
current expiration date; provided that any such automatic extension Letter
of Credit must permit the Issuing Bank to prevent any such extension at
least once in each twelve-month period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day in each such twelve-month period
to be agreed upon at the time such Letter of Credit is issued. Each Letter
of Credit so issued, extended or renewed shall be subject to the Uniform
Customs and Practice for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500 or any successor version thereto
adopted by the Issuing Bank in the ordinary course of its business as a
letter of credit issuer and in effect at the time of issuance of such
Letter of Credit (the "Uniform Customs") or, in the case of a standby
Letter of Credit, either the Uniform Customs or the International Standby
Practices (ISP98), International Chamber of Commerce Publication No. 590,
or any successor code of standby letter of credit practices among banks
adopted by the Issuing Bank in the ordinary course of its business as a
standby letter of credit issuer and in effect at the time of issuance of
such Letter of Credit. No Letter of Credit shall be for less than
$500,000.00 (unless otherwise agreed to by the Issuing Bank) and there
shall be no more than ten (10) Letters of Credit outstanding at any one
time.
5.1.4 Letter of Credit Participation of Lenders. Each Revolving Credit
Lender severally, but not jointly, agrees that it shall be absolutely
liable, without regard
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to the occurrence of any Default or any other condition precedent
whatsoever, to the extent of such Lender's Revolving Loan Commitment
Percentage, to reimburse the Administrative Agent on demand for the amount
of each draft paid by the Issuing Bank under each Letter of Credit issued
for the account of either of the Borrowers and, if applicable, each payment
made by the Administrative Agent to the Issuing Bank under any LC Guaranty
relating to any Letter of Credit issued for the account of either of the
Borrowers to the extent that such amount is not reimbursed by the Borrowers
pursuant to Section 5.2 (such agreement by a Lender being called herein the
"Letter of Credit Participation" of such Lender).
5.1.5 Participations of Lenders. Each such payment made by a Revolving
Credit Lender shall, unless the applicable Reimbursement Obligation has
been otherwise funded as a Revolving Loan bearing interest at the Base Rate
pursuant to Section 5.2, be treated as the purchase by such Revolving
Credit Lender of a participating interest in the Borrowers' Reimbursement
Obligation under Section 5.2 in an amount equal to such payment. To that
extent, each Revolving Credit Lender shall share in accordance with its
respective Revolving Loan Commitment Percentage, in any interest which
accrues pursuant to Section 5.2.
5.2 Reimbursement Obligation of the Borrowers. In order to induce the
Administrative Agent to cause the Issuing Bank to issue, extend and renew each
Letter of Credit for the account of the Borrowers, the Borrowers agree to
reimburse or pay to the Administrative Agent, for the account of the
Administrative Agent and/or the Issuing Bank or (as the case may be) the
Lenders, with respect to each Letter of Credit issued, extended or renewed for
either of the Borrowers' account, on each date that any draft presented under
such Letter of Credit is honored by the Issuing Bank, or the Issuing Bank or the
Administrative Agent otherwise makes a payment with respect thereto or the
Administrative Agent makes any payment under any LC Guaranty, (a) the amount
paid by the Issuing Bank or the Administrative Agent under or with respect to
such Letter of Credit, and (b) the amount of any taxes, fees, charges or other
costs and expenses whatsoever reasonably incurred by the Issuing Bank or
Administrative Agent or any Lender (without duplication of any amounts paid by
the Borrowers pursuant to Section 6.3, and other than Excluded Taxes) in
connection with any payment made by the Issuing Bank, Administrative Agent or
any Lender under, or with respect to, such Letter of Credit (collectively, the
"Reimbursement Obligations"); provided that, subject to the conditions to
borrowing set forth herein, payment of each Reimbursement Obligation by the
Borrowers under this Section shall be made through the automatic funding of a
Revolving Loan bearing interest at the Base Rate applicable to Revolving Loans
in an amount equal to the amount of such Reimbursement Obligation, and the
Borrowers hereby irrevocably authorize and direct the Administrative Agent and
Issuing Bank to take such actions as may be necessary to effectuate such
automatic funding of any such Base Rate Loans. Notwithstanding the foregoing,
upon the reduction (but not termination) of the Revolving Credit Limit to an
amount less than the then outstanding Revolving Exposure at such time as the
then applicable Maximum Drawing Amount is greater than zero, the Borrowers shall
within one Business Day provide cash or Cash Equivalents to the Administrative
Agent in an amount equal to the lesser of (i) the excess of the Revolving
Exposure over the Revolving Credit Limit, and (ii) such Maximum Drawing Amount,
which amount shall be held by the Administrative Agent for the benefit of the
Lenders and the
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Administrative Agent as Cash Collateral for all Reimbursement Obligations, and
upon the reduction of the Revolving Credit Limit to zero, or the acceleration of
the Reimbursement Obligations with respect to all Letters of Credit issued for
the account of the Borrowers in accordance with Section 11.2.1, the Borrowers
shall immediately provide cash or Cash Equivalents to the Administrative Agent
in an amount equal to the then Maximum Drawing Amount on all Letters of Credit
issued for the account of the Borrower, which amount shall be held by the
Administrative Agent, for the benefit of the Lenders and the Administrative
Agent, as Cash Collateral for all Reimbursement Obligations.
Each such payment shall be made to the Administrative Agent at the
Administrative Agent's Office in immediately available funds. Interest on any
and all amounts remaining unpaid by the Borrowers under this Section at any time
from the date such amounts become due and payable (whether as stated in this
Section, by acceleration or otherwise) until payment in full (whether before or
after judgment) shall be payable to the Administrative Agent on demand and shall
accrue interest at the Default Rate.
5.3 Letter of Credit Payments. If any draft shall be presented or other
demand for payment shall be made under any Letter of Credit, the Administrative
Agent shall notify the Borrowers of the date and amount of the draft presented
or demand for payment and of the date and time when it expects to pay such draft
or honor such demand for payment. If the Borrowers fail to reimburse the
Administrative Agent as provided in Section 5.2 on or before the date that such
draft is paid or other payment is made by the Issuing Bank or the Administrative
Agent or, as a result of the applicable borrowing limits described therein being
exceeded such Reimbursement Obligations are not satisfied by the making of a
Revolving Loan bearing interest at the Base Rate applicable to Revolving Loans,
the Administrative Agent may at any time thereafter notify the Revolving Credit
Lenders of the amount of any such Unpaid Reimbursement Obligation. No later than
2:00 p.m. Eastern time on the Business Day next following the receipt of such
notice, each such Revolving Credit Lender shall make available to the
Administrative Agent, at the Administrative Agent's Office, in immediately
available funds, such Revolving Credit Lender's Revolving Loan Commitment
Percentage of such Unpaid Reimbursement Obligation, together with an amount
equal to the product of (a) the average, computed for the period referred to in
clause (c) below, of the weighted average interest rate paid by the
Administrative Agent for federal funds acquired by the Administrative Agent
during each day included in such period, times (b) the amount equal to such
Lender's Revolving Loan Commitment Percentage of such Unpaid Reimbursement
Obligation, times (c) a fraction, the numerator of which is the number of days
that elapse from and including the date the Issuing Bank or the Administrative
Agent paid the draft presented for honor or otherwise made payment to the date
on which such Lender's Revolving Loan Commitment Percentage of such Unpaid
Reimbursement Obligation, shall become immediately available to the
Administrative Agent, and the denominator of which is 360. The responsibility of
the Issuing Bank and the Administrative Agent to the Borrowers and the Lenders
shall be only to determine that the documents (including each draft) delivered
under each Letter of Credit in connection with such presentment shall be in
conformity in all material respects with such Letter of Credit.
5.4 Obligations Absolute. The Borrowers' obligations under this Section
shall be joint, several, absolute and unconditional under any and all
circumstances and irrespective of the
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occurrence of any Default or any condition precedent whatsoever or any setoff,
counterclaim or defense to payment which either Borrower may have or have had
against the Issuing Bank or the Administrative Agent, any Lender or any
beneficiary of a Letter of Credit. The Borrowers further agree with the
Administrative Agent and the Lenders that none of the Issuing Bank, the
Administrative Agent and the Lenders shall be responsible for, and the
Borrowers' Reimbursement Obligations under Section 5.2 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be in any
or all respects invalid, fraudulent or forged, or any dispute between or among
the Borrowers, the beneficiary of any Letter of Credit or any financing
institution or other party to which any Letter of Credit may be transferred or
any claims or defenses whatsoever of either Borrower against the beneficiary of
any Letter of Credit or any such transferee. None of the Issuing Bank, the
Administrative Agent and the Lenders shall be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit. The
Borrowers agree that any action taken or omitted by the Issuing Bank, the
Administrative Agent or any Lender under or in connection with each Letter of
Credit and the related drafts and documents, if done in good faith and in the
absence of gross negligence or willful misconduct, shall be binding upon the
Borrowers and the Guarantors and shall not result in any liability on the part
of the Issuing Bank, the Administrative Agent or any Lender to the Borrowers or
Guarantors.
5.5 Reliance by Issuer. To the extent not inconsistent with Section 5.4,
the Issuing Bank and the Administrative Agent shall be entitled to rely, and
shall be fully protected in relying upon, any Letter of Credit, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document believed by such Person to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel, independent accountants and other experts selected
by the Issuing Bank or the Administrative Agent.
5.6 Letter of Credit Fees. The Borrowers shall pay a fee in respect of each
Letter of Credit issued for the account of either Borrower (in each case, a
"Letter of Credit Fee"): (a) to the Administrative Agent in an amount equal to
(i) during such time as there is outstanding no Event of Default, the Applicable
Margin per annum with respect to LIBOR Rate Loans that are Revolving Loans times
the Maximum Drawing Amount of each such Letter of Credit, and (ii) during such
time as there exists an Event of Default, 2% per annum above the otherwise
applicable fee, which Letter of Credit Fee shall be for the accounts of the
Lenders in accordance with their respective Revolving Loan Commitment
Percentages; and (b) to the Issuing Bank in an amount equal to 0.125% per annum
above the otherwise applicable fee, which amount shall be for the account of the
Issuing Bank as a fronting fee. The Letter of Credit Fee shall be paid quarterly
in arrears on the first Business Day of each Fiscal Quarter for the immediately
preceding Fiscal Quarter. In respect of each Letter of Credit issued for the
account of either Borrower, the Borrowers shall also pay to the Issuing Bank for
the Issuing Bank's own account, at such other time or times as such charges are
customarily made by the Issuing Bank, the Issuing Bank's customary issuance,
amendment, negotiation, payment or document examination and other administrative
fees as in effect and applicable from time to time.
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6. CERTAIN GENERAL PROVISIONS.
--------------------------
6.1 Fees.
6.1.1 Administrative Agent's Fee. The Borrowers shall pay to the
Administrative Agent, for its own account, an administrative agent's fee as
set forth in the Fee Letter (the "Administrative Agent's Fee"), in the
amounts and at the times referred to therein.
6.1.2 Closing Fees. The Borrowers shall pay to the Administrative
Agent any additional fees set forth in the Fee Letter and not otherwise
defined herein (the "Closing Fees"), in the amounts and at the times
referred to therein.
6.2 Payments to Administrative Agent. All payments of principal and
interest on Loans and all Reimbursement Obligations, Fees and any other amounts
due hereunder or under any of the other Loan Documents (unless the provisions of
this Credit Agreement or another Loan Document require otherwise) shall be made
on the due date thereof to the Administrative Agent in Dollars for the
respective accounts of the Creditor Parties, by wire transfer of immediately
available funds, at the Administrative Agent's Office or at such other place as
the Administrative Agent may from time to time designate, in each case no later
than 12:00 noon Eastern time, and in immediately available funds.
6.3 No Offsets, Taxes Etc.
6.3.1 No Offsets. Any and all payments by the Borrowers or Guarantors
hereunder or under any of the other Loan Documents shall be made free and
clear of and without deduction or withholding for any and all present or
future Taxes, unless such Taxes are required by law or the administration
thereof to be deducted or withheld (all such Taxes, excluding the Excluded
Taxes and Other Taxes, being referred to herein as "Covered Taxes"). If the
Borrowers or Guarantors shall be required by law or the administration
thereof to deduct or withhold any Covered Taxes from or in respect of any
sum payable hereunder or under any other Loan Document, (a) the sum payable
shall be increased as may be necessary so that after making all required
deductions or withholdings (including deductions or withholdings applicable
to additional amounts paid under this paragraph), the applicable Creditor
Parties receive an amount equal to the sum they would have received if no
such deduction or withholding had been made; (b) the Borrowers and
Guarantors shall make such deductions or withholdings; and (c) the
Borrowers and Guarantors shall pay the full amount deducted or withheld to
the relevant taxation or other authority in accordance with applicable law.
6.3.2 Other Taxes. The Borrowers and Guarantors agree to pay, in a
timely manner and in accordance with all applicable law, any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies (all such taxes, charges and levies being herein
referred to as "Other Taxes") imposed by any jurisdiction (or any political
subdivision or taxing authority thereof or therein) which arise from any
payment made by the Borrowers or Guarantors hereunder or under any of
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the other Loan Documents or from the execution, delivery or registration
of, or otherwise with respect to, this Credit Agreement or any of the other
Loan Documents.
6.3.3 Indemnification. The Borrowers and Guarantors agree to indemnify
each of the Creditor Parties for the full amount of Covered Taxes or Other
Taxes not deducted, withheld and paid by the Borrowers or Guarantors in
accordance with Sections 6.3.1 and 6.3.2 on amounts payable by the
Borrowers and Guarantors under this Section which are paid by any of the
Creditor Parties and any liability (including penalties and interest
arising therefrom or with respect thereto, other than penalties and
interest attributable solely to the gross negligence or willful misconduct
of such Creditor Parties, as applicable) arising therefrom or with respect
thereto, whether or not any such Covered Taxes or Other Taxes were
correctly or legally asserted. Payment under this indemnification shall be
made within fifteen (15) days from the date a Creditor Party makes written
demand therefor. A certificate as to the amount of such Covered Taxes or
Other Taxes and evidence of payment thereof submitted to the Borrowers and
Guarantors shall be conclusive, absent manifest error, of the amount due
from the Borrowers or Guarantors to such Creditor Party.
6.3.4 Non-U.S. Lenders. Each Creditor Party that is organized under
the laws of a jurisdiction outside the United States (a "Non-U.S. Lender")
agrees that it shall, no later than the Closing Date (or, in the case of a
Creditor Party which becomes a party hereto pursuant to this Credit
Agreement after the Closing Date, on or prior to the date upon which such
Creditor Party becomes a party hereto), and from time to time thereafter
upon the reasonable request of the Borrowers (but only if such Non-U.S.
Lender or beneficial owner is legally entitled to do so) deliver to the
Borrowers and the Administrative Agent two properly completed and duly
executed copies of either U.S. Internal Revenue Service Form ▇-▇▇▇▇, ▇-▇▇▇▇
or W-8IMY or any subsequent versions thereof or successors thereto, or any
other form prescribed by applicable law as a basis for claiming exemption
from (or reduction in) United States federal withholding tax together with
such supplementary documentation as may be prescribed by applicable law, in
each case claiming complete exemption from, or reduced rate of, U.S.
federal withholding tax and payments of interest hereunder. In addition, in
the case of a Non-U.S. Lender claiming exemption from U.S. Federal
withholding tax under Section 871(h) or Section 881(c) of the Code, such
Non-U.S. Lender (to the extent legally entitled to do so) shall deliver a
certificate, in substantially the same form as Exhibit 6.3.4, to the
Borrowers and the Administrative Agent, certifying that such Non-U.S.
Lender or beneficial owner is not (A) a bank for purposes of Section
881(c)(3)(A) of the Code, (B) a 10-percent shareholder of any of the
Borrowers within the meaning of Section 881(c)(3)(B) of the Code, and (C) a
"controlled foreign corporation" described in Section 881(c)(3)(C) of the
Code. Each Non-U.S. Lender (i) agrees that it shall promptly notify the
Borrowers and the Administrative Agent in the event any such representation
provided pursuant to this Section is no longer accurate and (ii) agrees
that it will deliver updated versions of the foregoing, as applicable,
whenever any of the previous certifications provided herein has become
inaccurate in any material respect, together with such other forms as may
be required in order to confirm or establish the entitlement of such
Creditor Party to a continued exemption from or reduction in United States
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withholding tax with respect to payments under this Credit Agreement. All
forms provided in this Section shall be delivered by each Non-U.S. Lender
to the Borrowers and the Administrative Agent on or before the date it
becomes a party to this Credit Agreement and on or before the date, if any,
such Non-U.S. Lender changes its applicable lending office by designating a
different lending office (a "New Lending Office").
6.3.5 U.S. Lenders. Any Creditor Party that is not a Non-U.S. Lender
and that may not be treated as an exempt recipient based on the indicators
described in Treasury Regulation Section 1.6049-4(c)(1)(ii) shall deliver
to the Borrowers on or prior to the date on which such Creditor Party
becomes a Creditor Party under this Credit Agreement (and from time to time
thereafter as prescribed by applicable law or upon the reasonable request
of the Borrowers), two duly executed and properly completed copies of U.S.
Internal Revenue Service Form W-9, or any successor form that such Creditor
Party is entitled to provide at such time in order to comply with United
States back-up withholding requirements. Notwithstanding any other
provision in this Section, no amount shall be required to be paid to a
Creditor Party under this Section with respect to backup withholding if
there has been a notified underreporting pursuant to Section 3406(a)(1)(C)
of the Code (or similar provision or successor provision) with respect to
such Creditor Party.
6.3.6 Pre-Existing Withholding Requirements. The Borrowers and
Guarantors shall not be required to indemnify any Non-U.S. Lender, or pay
any additional amounts to any Non-U.S. Lender, in respect of United States
federal withholding tax pursuant to this Credit Agreement to the extent
that the obligation to withhold amounts with respect to United States
federal withholding tax existed on the date such Non-U.S. Lender became a
party to this Credit Agreement or, with respect to payments to a New
Lending Office, the date such Non-U.S. Lender designated such New Lending
Office with respect to the Loans; provided, however, that this clause shall
not apply to the extent (i) the indemnity payment or additional amounts any
transferee or assignee of any Creditor Party, or any Creditor Party through
a New Lending Office, would be entitled to receive (without regard to this
clause (i)) do not exceed the indemnity payment or additional amounts that
the Person making the assignment or transfer to such transferee or
assignee, or Creditor Party making the designation of such New Lending
Office, would have been entitled to receive in the absence of such
assignment, transfer or designation, or (ii) the obligation to pay such
additional amounts would not have arisen but for a failure by such Non-U.S.
Lender to comply with the provisions of Section 6.3.4.
6.3.7 Mitigation. Any Creditor Party claiming any indemnity payment or
additional payment amounts payable pursuant to this Section shall use
reasonable efforts (consistent with legal and regulatory restrictions), at
the Borrowers' and Guarantors' expense, (a) to file any certificate or
document reasonably requested in writing by the Borrowers, or (b) to change
the jurisdiction of its applicable lending office if the making of such a
filing or change (i) would avoid the need for or reduce the amount of any
such indemnity payment or additional amount which may thereafter accrue,
(ii) would not require such Creditor Party to disclose any information such
Creditor Party deems
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confidential and (iii) would not, in the sole determination of such
Creditor Party, be otherwise disadvantageous to such Creditor Party.
6.3.8 Refunds. If any Creditor Party (including a transferee)
determines in its sole discretion that it is entitled to claim a refund
from a Governmental Authority in respect of Covered Taxes or Other Taxes
with respect to which any of the Borrowers or Guarantors has paid
additional amounts pursuant to this Section, it will promptly notify the
applicable Borrower or Guarantor of the availability of such refund claim
and shall, within twenty (20) days after receipt of a written request by
such Borrower or Guarantor, make a claim to the Governmental Authority for
such refund at such Borrower's or Guarantor's expense. If any Creditor
Party receives a refund (including a refund made pursuant to the preceding
sentence) in respect of any Covered Taxes or Other Taxes with respect to
which a Borrower or Guarantor has paid additional amounts pursuant to this
Section, such Creditor Party shall within ten (10) Business Days from the
date of the receipt pay over such refund (solely to the extent of such
Borrower's or Guarantor's payment, plus a pro rata portion of any interest
paid by the relevant Governmental Authority with respect to such refund) to
such Borrower or Guarantor, net of all out of pocket expenses of such
Creditor Party incurred in connection with obtaining such refund, including
reasonable attorneys fees; provided, however, that such Borrower or
Guarantor, upon the request of such Creditor Party, agrees to repay the
amount paid over to such Borrower or Guarantor (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority)
to the applicable Creditor Party in the event such Creditor Party is
required to repay such refund to such Governmental Authority. This Section
shall not be construed to require any Creditor Party to make available its
tax returns (or any other information relating to its taxes that it deems
confidential) to a Borrower, a Guarantor or any other Person.
Notwithstanding anything to the contrary, in no event will any Creditor
Party be required to pay any amount under this Section the payment of which
would place such Creditor Party in a less favorable net after-tax position
than such Creditor Party would have been in if the additional amounts
giving rise to such refund of any Covered Taxes or Other Taxes had never
been paid.
6.3.9 Evidence of Payment. The Borrowers and Guarantors shall furnish
to the Administrative Agent and each of the Creditor Parties the original
or a certified copy of a receipt evidencing any payment of Covered Taxes or
Other Taxes made by the Borrowers or Guarantors as soon as such receipt
becomes available.
6.3.10 Survival. The provisions of this Section shall survive the
termination of the Credit Agreement and repayment of all Obligations.
6.4 Computations. All computations of interest on Loans, any Fees or any
other amount due hereunder shall, unless otherwise expressly provided herein, be
based on a 365/366-day year for Base Rate Loans, and a 360-day year for all
other purposes, and paid for the actual number of days elapsed. Except as
otherwise provided in the definition of the term "Interest Period" with respect
to LIBOR Rate Loans, whenever a payment hereunder or under any of the other Loan
Documents becomes due on a day that is not a Business Day, the due date for such
payment shall be extended to the next succeeding Business Day, and interest and
fees shall accrue during such extension.
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6.5 Interest Limitation. Notwithstanding any other term of this Credit
Agreement or any other document referred to herein or therein, the maximum
amount of interest which may be charged to or collected from any Person liable
hereunder by the Lenders shall be absolutely limited to, and shall in no event
exceed, the maximum amount of interest which could lawfully be charged or
collected under applicable law (including, to the extent applicable, the
provisions of Section 5197 of the Revised Statutes of the United States of
America, as amended or 12 U.S.C. Section 85, as amended), so that the maximum of
all amounts constituting interest under applicable law, howsoever computed,
shall never exceed as to any Person liable therefor such lawful maximum, and any
term of this Credit Agreement or any other document referred to herein or
therein which could be construed as providing for interest in excess of such
lawful maximum, shall be and hereby is made expressly subject to and modified by
the provisions of this paragraph.
6.6 Inability to Determine LIBOR Rate. In the event, prior to the
commencement of any Interest Period relating to any LIBOR Rate Loan, the
Administrative Agent shall in good faith determine or be notified by the
Required Lenders that (a) adequate and reasonable methods do not exist for
ascertaining the LIBOR Rate that would otherwise determine the rate of interest
to be applicable to any LIBOR Rate Loan during any Interest Period or (b) the
LIBOR Rate determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to the Lenders of making or maintaining
their LIBOR Rate Loans during such period, the Administrative Agent shall
forthwith give notice of such determination (which shall be conclusive and
binding on the Borrowers and the Lenders) to the Borrowers and the Lenders. In
such event (i) any Loan Request or Conversion Request with respect to LIBOR Rate
Loans shall be automatically withdrawn and shall be deemed a request for Base
Rate Loans, (ii) each LIBOR Rate Loan will automatically, on the last day of the
then current Interest Period relating thereto, become a Base Rate Loan and (iii)
the obligations of the Lenders to make LIBOR Rate Loans shall be suspended until
the Administrative Agent or the Required Lenders determine that the
circumstances giving rise to such suspension no longer exist, whereupon the
Administrative Agent or, as the case may be, the Administrative Agent upon the
instruction of the Required Lenders, shall so notify the Borrowers and the
Lenders.
6.7 Illegality. Notwithstanding any other provisions herein, if any present
or future law, regulation, treaty or directive or in the interpretation or
application thereof shall make it unlawful for any Lender to (i) make or
maintain LIBOR Rate Loans, or (ii) perform its obligations in respect of any
LIBOR Rate Loan, such Lender shall forthwith give notice of such circumstances
to the Borrowers, the Administrative Agent and the other Lenders and thereupon
(a) the commitment of such Lender to make LIBOR Rate Loans or convert Loans of
another Type to LIBOR Rate Loans shall forthwith be suspended, and (b) such
Lender's Loans then outstanding as LIBOR Rate Loans if any such Loans exist,
shall be converted automatically to Base Rate Loans on the last day of each
Interest Period applicable to such LIBOR Rate Loans or within such earlier
period as may be required by law. The Borrowers hereby agree promptly to pay to
the Administrative Agent for the account of such Lender, upon demand by such
Lender, any additional amounts necessary to compensate such Lender for any costs
incurred by such Lender in making any conversion in accordance with this
Section, including any interest or fees payable by such Lender to lenders of
funds obtained by it in order to make or maintain its LIBOR Rate Loans
hereunder.
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6.8 Additional Costs, Etc. If any present or future applicable law, which
expression, as used herein, includes statutes, rules and regulations thereunder
and interpretations thereof by any Governmental Authority charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Creditor Party by any central bank or other fiscal,
monetary or other authority (whether or not having the force of law), shall:
6.8.1 Taxes. subject any Creditor Party to any Tax or withholding of
any nature with respect to this Credit Agreement, the other Loan Documents,
any Letters of Credit, such Creditor Party's Commitment or the LIBOR Rate
Loans, or change in the basis of taxation of payments to such Creditor
Party (other than Taxes, levies, imposts, charges, fees, deductions or
withholdings covered by Section 6.3 and the imposition of, or any change in
the rate of, any Excluded Tax payable by such Creditor Party), or
6.8.2 Reserves. impose or increase or render applicable (other than to
the extent specifically provided for elsewhere in this Credit Agreement)
any special deposit, reserve, assessment, liquidity, capital adequacy or
other similar requirements (whether or not having the force of law) against
assets held by, or deposits in or for the account of, or loans by, or
letters of credit issued by, or commitments of an office of any Creditor
Party), or
6.8.3 Other Costs. impose on any Creditor Party any other conditions
or requirements with respect to this Credit Agreement, the other Loan
Documents, such Lender's or the Swingline Lender's Commitment, any Letters
of Credit or, the LIBOR Rate Loans, and the result of any of the foregoing
is:
(a) to increase the cost to any Creditor Party of making,
funding, issuing, renewing, extending or maintaining any of the LIBOR
Rate Loans, such Commitment or any Letter of Credit, or
(b) to reduce the amount of principal, interest, Reimbursement
Obligation or other amount payable to such Creditor Party hereunder on
account of such Commitment, any Letter of Credit or any of the Loans,
or
(c) to require such Creditor Party to make any payment or to
forego any interest or Reimbursement Obligation or other sum payable
hereunder, the amount of which payment or foregone interest or
Reimbursement Obligation or other sum is calculated by reference to
the gross amount of any sum receivable or deemed received by such
Creditor Party from the Borrowers hereunder,
then, and in each such case, the Borrowers will, upon demand made by such
Creditor Party at any time and from time to time and as often as the
occasion therefor may arise, pay to such Creditor Party such additional
amounts as will be sufficient to compensate such Creditor Party for such
additional cost, reduction, payment or foregone interest or Reimbursement
Obligation or other sum upon presentation by such Creditor Party of a
certificate in accordance with Section 6.10 hereof; provided that the
Borrowers shall not be liable to any Creditor Party for costs incurred more
than one hundred eighty (180)
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days prior to receipt by the Borrowers of such certificate from such
Creditor Party, as applicable, unless such costs were incurred prior to
such 180-day period solely as a result of such present or future applicable
law being retroactive to a date which occurred prior to such 180-day
period.
6.9 Capital Adequacy. If after the date hereof any Creditor Party
determines that (i) the adoption of or change in any law, governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law) regarding capital requirements for banks or bank holding companies or any
change in the interpretation or application thereof by a court or governmental
authority with appropriate jurisdiction, or (ii) compliance by such Creditor
Party or any corporation controlling such Creditor Party with any law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) of any such entity regarding capital adequacy, has the
effect of reducing the return on such Creditor Party's commitment with respect
to any Loans to a level below that which such Creditor Party could have achieved
but for such adoption, change or compliance (taking into consideration such
Creditor Party's then existing policies with respect to capital adequacy and
assuming full utilization of such entity's capital) by any amount deemed by such
Creditor Party to be material, then such Creditor Party may notify the Borrowers
of such fact upon presentation of a certificate in accordance with Section 6.10
hereof. To the extent that the amount of such reduction in the return on capital
is not reflected in the Base Rate, the Borrowers and such Creditor Party shall
thereafter attempt to negotiate in good faith, within thirty (30) days of the
day on which the Borrowers receive such notice, an adjustment to the
compensation payable hereunder which will adequately compensate such Creditor
Party in light of these circumstances. If the Borrowers and such Creditor Party
are unable to agree to such adjustment within thirty (30) days of the date on
which the Borrowers receive such notice, then commencing on the date of such
notice (but not earlier than the effective date of any such increased capital
requirement), the fees payable hereunder shall increase by an amount that will,
in such Creditor Party's reasonable determination, provide adequate
compensation; provided that the Borrowers shall not be liable to any Creditor
Party for costs incurred more than one hundred eighty (180) days prior to
receipt by the Borrowers of such notice. Each Creditor Party shall allocate such
cost increases among its customers in good faith and on an equitable basis.
6.10 Certificate. A certificate setting forth any additional amounts
payable pursuant to Section 6.8 or Section 6.9 and a reasonably detailed
explanation of such amounts which are due, submitted by any Creditor Party to
the Borrowers, shall be prima facie evidence in the absence of manifest error
that such amounts are due and owing.
6.11 Mitigation Obligations; Replacement of Lenders.
6.11.1 Designation of a Different Lending Office. If any Lender
requests compensation, or the Borrowers are required to pay any additional
amounts to or for the benefit of such Lender, pursuant to Section 6.7,
Section 6.8 or Section 6.9, or if any Lender gives a notice pursuant to
Section 6.7, then such Lender shall use reasonable efforts to designate a
different Domestic Lending Office or LIBOR Lending Office for funding or
booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or Affiliates, if, in the
judgment of such Lender, such designation or assignment (a) would eliminate
or reduce amounts compensable or
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payable pursuant to Section 6.7, Section 6.8 or Section 6.9, as the case
may be, in the future, or eliminate the need for the notice pursuant to
Section 6.7 as applicable, and (b) in each case, would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrowers hereby agree to pay all
reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.
6.11.2 Replacement of Lenders. If any Lender requests compensation, or
the Borrowers are required to pay any additional amount to or for the
benefit of any such Lender, under Section 6.7, Section 6.8 or Section 6.9,
the Borrowers may replace such Lender in accordance with Section 6.14.
6.11.3 Survival. All of the Borrower's Obligations under Section 6.7,
Section 6.8, Section 6.9 and this Section shall survive termination of the
Commitments and repayment of all other Obligations hereunder.
6.12 Indemnity. The Borrowers agree to indemnify the Administrative Agent
and each Lender and to hold each of them harmless from and against any loss,
cost or expense that such Person may sustain or incur as a consequence of (a)
default by the Borrowers in payment of the principal amount of or any interest
on any LIBOR Rate Loans as and when due and payable, including any such loss or
expense arising from interest or fees payable by such Lender to banks of funds
obtained by it in order to maintain its LIBOR Rate Loans, (b) default by the
Borrowers in making a borrowing or conversion after a Borrower has given (or is
deemed to have given) a Loan Request or a notice (in the case of all or any
portion of the Loans pursuant to Section 2.3.4) or a Conversion Request relating
thereto in accordance with Section 2.3.1 or 2.3.2 or (c) the making of any
payment of a LIBOR Rate Loan or the making of any conversion of any such Loan to
a Base Rate Loan on a day that is not the last day of the applicable Interest
Period with respect thereto, including interest or fees payable by such Lender
to lenders of funds obtained by it in order to maintain any such Loans.
6.13 Interest After Event of Default. At the Administrative Agent's
discretion or upon written request of the Required Lenders, upon the occurrence
and during the continuance of an Event of Default, the Borrowers shall pay
interest on the principal amount of all outstanding Obligations (other than
Obligations arising out of Derivative Agreements not directly relating to the
Loans) and Letter of Credit Fees at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted by applicable
laws.
6.14 Replacement of Lenders. (a) If any Lender requests compensation, or
the Borrowers are required to pay any additional amount to or for the benefit of
such Lender, pursuant to Sections 6.7, 6.8 or 6.9, or if any Lender gives a
notice pursuant to Section 6.7, (b) if any Lender is a Delinquent Lender; or (c)
if any Lender refuses to consent, or unreasonably withholds, conditions or
delays its consent, pursuant to Sections 23.1.1 or 23.1.2; then the Borrowers
may, at their sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 17), all of its interests, rights and obligations
under this Credit Agreement and the other Loan Documents to an Eligible Assignee
that shall assume such obligations, provided that:
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(i) the Borrowers shall have paid to the Administrative Agent the
processing and recordation fee specified in Section 17.2.2;
(ii) such Lender shall have received payment of an amount equal
to the outstanding principal of all Loans made by it, accrued interest
thereon, accrued fees and all other amounts payable hereunder and
under the other Loan Documents (including any amounts under Sections
6.7, 6.8 or 6.9) from the Eligible Assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrowers
(in the case of all other amounts);
(iii) such assignment does not conflict with any applicable laws.
A Lender shall not be required to make any such assignment or delegation
pursuant to this Section if, prior to the consummation of such assignment, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrowers to require such assignment and delegation cease to apply.
7. CONDITIONS PRECEDENT
--------------------
The obligations of the Lenders to make the Loans, for the Issuing Bank to issue
Letters of Credit, and for the Swingline Lender to make the Swingline Loans are
subject to the following conditions precedent:
7.1 Documents. The Creditor Parties shall have received each of the
following, in form and substance reasonably satisfactory to such Creditor
Parties and their respective counsel:
(a) Counterparts of this Credit Agreement, and the other Loan
Documents, including, without limitation, those documents reflected on
the Closing Checklist attached to this Credit Agreement as Exhibit
7.1, duly executed and delivered by each of the parties thereto;
(b) Such other documents, agreements and instruments and the
completion of all actions as the Creditor Parties may reasonably
request.
7.2 Other Conditions Precedent to any Loans.
(a) No 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) All warranties and representations made by or on behalf of
either of the Borrowers or any of the Guarantors to any of the
Creditor Parties pursuant to the Loan Documents shall be true and
accurate in all material respects.
(c) The Creditor Parties shall be satisfied that the Pledge
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 Equity Collateral in favor of the
Administrative Agent, on behalf of the Lenders and the Swingline
Lender, subject to no other Liens.
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(d) In the good faith judgment of the Administrative Agent:
(i) No litigation, action, suit, investigation or other
arbitral, administrative or judicial proceeding shall be pending
or threatened which could reasonably be expected to result in a
Material Adverse Effect; and
(ii) The Borrowers and the Guarantors 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 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 any such Person 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 have
a Material Adverse Effect.
(e) The Borrowers shall have paid the Lender such amounts as
shall be due under the Fee Letter and shall have paid all other
amounts required to be paid hereunder.
(f) The ARCap Acquisition shall have been consummated in
accordance with the terms of the ARCap Acquisition Agreement (or as
otherwise agreed by the Arrangers and the Creditor Parties).
(g) The Repayment Obligations shall have been fully paid and
performed.
8. REPRESENTATIONS AND WARRANTIES
------------------------------
In order to induce the Creditor Parties to enter into this Credit Agreement and
to make the Loans, each of the Borrowers, and each of the Guarantors, jointly
and severally, represent and warrant to the Administrative Agent and to the
Swingline Lender, the Issuing Bank and the Lenders as follows:
8.1 Financial Information. True, accurate and complete consolidated
financial statements of each Borrower and each Borrower's respective
Subsidiaries, and consolidating financial statements for CM Corp., as of and for
the period ended March 31, 2006 (the "Balance Sheet Date"), have been delivered
to the Creditor Parties and the same fairly present in all material respects the
financial condition of each Borrower, each Guarantor and each Pledged Entity as
of the date thereof and no material and adverse change has occurred in such
financial condition since the date thereof.
8.2 Litigation. Except as set forth in Schedule 8.2, there are no actions,
suits, proceedings or investigations of any kind pending or, to the knowledge of
either Borrower or any Guarantors, threatened, against any of them or their
respective Subsidiaries, before any court, tribunal or administrative agency or
board that, if adversely determined, would reasonably be
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expected to, either in any case or in the aggregate, have a Material Adverse
Effect, 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 which question the validity of this Credit Agreement or
any of the other Loan Documents, or any action taken or to be taken pursuant
hereto or thereto.
8.3 Good Title and No Liens. The Borrowers, the Guarantors and the Pledged
Entities are the lawful owners of their respective assets and are and will be
the lawful owners of such assets, free and clear of all liens and encumbrances
of any nature whatsoever other than (i) as permitted in conjunction with this
Credit Agreement, (ii) liens and encumbrances securing other Indebtedness
incurred in connection with the conduct of business by such Persons in the
ordinary course of their respective businesses consistent with past practices
and listed on Schedule 8.3, or (iii) liens and encumbrances which are being
released, terminated or discharged with the proceeds of the Term Loan.
8.4 Franchise, Patents, Copyrights, Etc. Each of the Borrowers and each of
the Guarantors possess all franchises, patents, copyrights, trademarks, trade
names, licenses and permits, and rights in respect of the foregoing, required
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 have a Material Adverse
Effect.
8.5 Entity Matters.
8.5.1 Organization. Each of the Borrowers, each Guarantor and each of
the Pledged Entities:
(a) is the type of Business Entity, formed in the jurisdiction,
and qualified to do business in the jurisdictions, as set forth on
Schedule 8.5.1.
(b) that purports to be a Delaware statutory 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 each
jurisdiction where the nature of its business is such that
qualification is required, except where failure to be so qualified
would not result in a Material Adverse Effect, 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 Credit Agreement.
(c) that purports to be a corporation 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, except where
failure to be so qualified would not result in a Material Adverse
Effect, 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 Credit Agreement.
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(d) that purports to be a limited liability company 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, except where failure to be so qualified
would not result in a Material Adverse Effect, and has all requisite
power and authority to conduct its business and to own its property as
now conducted or owned.
8.5.2 Ownership. The ownership of the Capital Stock of CM Corp., each
of the Guarantors and each of the Pledged Entities is set forth on Schedule
8.5.2. True and complete copies of each of the Governing Documents for each
such Person is listed on Schedule 8.5.2 and has been furnished to the
Administrative Agent by the Borrowers and the Guarantors.
8.5.3 Taxpayer Identification Numbers. The taxpayer identification
numbers and state organizational numbers (if applicable) of each Borrower,
each Guarantor, each Pledged Entity and Origination Trust are accurately
stated in Schedule 8.5.3.
8.5.4 Equity Interests. The Borrowers, the Guarantors and Origination
Trust are each the owner, free and clear of all liens and encumbrances
(other than those created in favor of the Administrative Agent pursuant to
the Loan Documents), of the Capital Stock which they purport to own of each
of their respective Subsidiaries, all of which are listed on Schedule
8.5.2. All shares of such Capital Stock constituting corporate shares have
been validly issued and are fully paid and nonassessable, all shares or
units of such Capital Stock constituting equity in other forms of entities
(e.g. statutory trusts, limited liability companies or partnerships) are
not subject to any calls or assessments, no rights to subscribe to any
additional Capital Stock of any such Person have been granted, and no
options, warrants, or similar rights are outstanding except as set forth in
Schedule 8.5.4.
8.6 Authorization. The execution and delivery of this Credit Agreement and
the other Loan Documents to which each Borrower, any Guarantor or Origination
Trust is to become a party and the performance by such Persons of the
transactions contemplated hereby and thereby (i) are within the authority of
each Borrower and each Guarantor, as applicable, (ii) have been duly authorized
by all necessary corporate or trust action, as applicable, (iii) do not conflict
with, result in any breach or contravention of or require any consent, waiver,
authorization or approval under any legal requirement to which any such Person
is subject or any judgment, order, writ, injunction, license or permit
applicable to any such Person, as applicable, and (iv) do not conflict with any
provision of any such Person's Governing Documents or any Contractual Obligation
of any such Person, as applicable, except, in each case, where such conflict
would not have a Material Adverse Effect.
8.7 Valid and Binding. Each of the Loan Documents constitutes the legal,
valid and binding obligation of each of the Borrowers, the Guarantors, and
Origination Trust, party thereto, enforceable against each such Person in
accordance with the respective terms thereof, subject to bankruptcy, insolvency
and similar laws of general application affecting the rights and remedies of
creditors generally and, with respect to the availability of the remedies of
specific
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enforcement, subject to the discretion of the court before which any proceeding
therefor may be brought.
8.8 Deferred Compensation and ERISA. Except as could not, individually or
in the aggregate, be reasonably expected to have a Material Adverse Effect, the
Borrowers, the Guarantors, the Pledged Entities and each ERISA Affiliate are in
material compliance with all applicable provisions and requirements of ERISA and
the regulations and published interpretations thereunder with respect to each
Employee Benefit Plan, and have performed all their material obligations under
each Employee Benefit Plan. No ERISA Event has occurred or is reasonably
expected to occur except ERISA Events that, individually or in the aggregate,
could not reasonably be expected to result in a liability of any Borrower,
Guarantor, Pledged Entity or ERISA Affiliate in excess of $1,000,000. Except to
the extent required under Section 4980B of the Code, no Employee Benefit Plan
provides health or welfare benefits (through the purchase of insurance or
otherwise) for any retired or former employees of any Borrower, Guarantor,
Pledged Entity or ERISA Affiliate. No Employee Benefit Plan that is a group
health plan within the meaning of Part 6 of Title I of ERISA is self-insured or
provides benefits by any means other the purchase of insurance. None of the
Borrowers, Guarantors, Pledged Entities or any ERISA Affiliates has any
Guaranteed Pension Plan except as may be designated to the Lender in writing by
the Borrowers from time to time. As of the most recent valuation date for each
Guaranteed Pension Plan, the amount of unfunded benefit liabilities (as defined
in Section 4001(a)(18) of ERISA), individually or in the aggregate of all
Guaranteed Pension Plans (excluding for purposes of such computation any Pension
Plans with respect to which assets exceed benefit liabilities), does not exceed
$1,000,000; and no "Reportable Event" within the meaning of Section 4043 of
ERISA has occurred with respect to any Guaranteed Pension Plan. The granting of
the Loans, the performance by the Borrowers and the Guarantors of their
respective obligations under the Loan Documents and the Borrowers', the
Guarantors' and the Pledged Entities' conducting of their respective operations
do not and will not violate any provisions of ERISA or any Employee Benefit
Plan.
8.9 No Materially Adverse Contracts, Etc. Neither Borrower, no Guarantor,
no Pledged Entity, and none of their respective Subsidiaries is subject to, or
in breach or default under, 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, or where such breach or default has or is expected to have,
a Material Adverse Effect. Neither Borrower, no Guarantor, no Pledged Entity,
and none of their respective Subsidiaries is a party to, or in breach or default
under, any contract or agreement that has or is expected to have, or where such
breach or default has or is expected to have, any Material Adverse Effect.
8.10 Compliance With Other Instruments, Laws, Etc. Neither Borrower, no
Guarantor, no Pledged Entity, and none of their respective Subsidiaries is in
violation of any provision of its Governing Documents, or any Contractual
Obligations or any legal requirements, including, without limitation, with
respect to any leverage limitations, or any environmental, hazardous substance
or regulatory matter, in any of the foregoing cases in a manner that could
result in the imposition of substantial penalties or result in a Material
Adverse Effect.
8.11 Tax Status. The Borrowers, the Guarantors, the Pledged Entities and
their respective Subsidiaries (a) have filed all federal and state income and
all other tax returns,
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reports and declarations required by any jurisdiction to which such Person is
subject, and (b) have paid all Taxes shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith
and by appropriate proceedings for which appropriate reserves have been taken
and are being maintained in accordance with GAAP. Except for Taxes being
contested as provided in clause (b) above, there are no unpaid Taxes in any
material amount claimed to be due in writing by the taxing authority of any
jurisdiction, and such Persons know of no basis for any such claim.
8.12 Holding Company and Investment Company Acts. Neither Borrower, no
Guarantor, no Pledged entity, and none of their respective Subsidiaries is a
"holding company," or an "affiliate" of a "holding company," as such terms are
defined in the Public Utility Holding Company Act of 2005; nor are any such
Persons 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.
8.13 Certain Transactions. Except as set forth in Schedule 8.13 hereof, as
of the date of this Credit Agreement, none of the Related Parties of either
Borrower, any Guarantor, any Pledged Entity or any of their respective
Subsidiaries is presently a party to any transaction with any such Persons
(other than (a) for services as employees, officers, trustees, agents,
attorneys, representatives, advisors or directors, or (b) transactions (i) with
entities which are consolidated on the books of any such Person solely because
of the application of FIN 46, and (ii) with public investment funds that would
have been so consolidated under FIN 46 except for the rights of the investors in
such funds to remove the general partners of such funds without cause),
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.
8.14 Loan Documents. All of the representations and warranties of the
Borrowers and the Guarantors made in the Loan Documents are true and correct in
all material respects.
8.15 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.
8.16 Solvency. After the repayment of the Repayment Obligations, and taking
into account the Obligations hereunder, each of the Borrowers, the Guarantors,
the Pledged Entities and their respective Subsidiaries are individually, and on
a consolidated basis, Solvent.
8.17 No Material Change; No Default. There has been no (i) Material Adverse
Effect, or (ii) Change in Control, in each case since the date of the Borrowers'
and Guarantors' last financial statements most recently delivered to the
Administrative Agent; and there is not currently outstanding any Default.
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8.18 Insurance. Each of the Borrowers, each of the Guarantors and each of
the Pledged Entities maintains in full force and effect such insurance with
financially sound and reputable insurers with respect to such Person's
properties and business, against such casualties, liabilities and contingencies,
as are in accordance with the general practices of reasonably prudent businesses
engaged in similar activities in similar geographic areas and in amounts,
containing such terms, and in such forms as are reasonable and prudent in the
ordinary course of such Persons' business.
8.19 Use of Proceeds. The Borrowers will use the proceeds of the Loans and
will request the issuance of Letters of Credit only for the purposes and uses
specified in Section 3.
8.20 Labor Matters. Except as could not, individually or in the aggregate,
be reasonably expected to have a Material Adverse Effect, as of the date hereof,
there are no strikes, lockouts or slow downs against either Borrower, any
Guarantor or Pledged Entity or any of their respective Subsidiaries pending or,
to the knowledge of the Borrowers and Guarantors, threatened. The consummation
of the transactions contemplated by this Credit Agreement will not give rise to
any right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to which either Borrower, any
Guarantor or Pledged Entity, or any of their respective Subsidiaries, is bound.
The hours worked by and payments made to employees of any such Persons have not
been in violation in any material respect of the federal Fair Labor Standards
Act or any other applicable federal, state, local or foreign law dealing with
such matters and all payments due from such Persons, or for which any claim may
be made against any of such Persons, on account of wages and employee health and
welfare insurance and other benefits have been paid or accrued as a liability on
the books of such Persons.
8.21 Exchange Listing. CHC currently lists all of its common shares, and
maintains trading privileges with respect to such Capital Stock, on the New York
Stock Exchange, and such listing is valid, current, and in full force and
effect, in compliance with all securities law and exchange rules, regulations
and requirements.
8.22 No Broker or Finder. Neither Borrower, no Guarantor, and no other
Person acting on their behalf, has dealt with any broker, finder or other Person
who or which may be entitled to a broker's or finder's fee, or other
compensation, payable by the Creditor Parties, the Administrative Agent, the
Agents, the Arrangers or the Book Managers in connection with the Loans, the
execution and delivery of the Loan Documents, the consummation of the
transactions contemplated hereby, and the performance of the Obligations.
8.23 Information True, Complete and Not Misleading. All of the factual
information provided by or on behalf of the Borrowers or the Guarantors that is
contained or referred to in this Section and in the Schedules to this Credit
Agreement, and in the certificates and opinions furnished to the Administrative
Agent or the Lenders by or on behalf of the Borrowers and the Guarantors in
connection with this Credit 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.
9. AFFIRMATIVE COVENANTS
For so long as this Credit Agreement is in effect, and until such time as all of
the Obligations have been indefeasibly fully paid and performed, unless the
Creditor Parties shall otherwise consent in the manner provided for in Section
23, the Borrowers and the Guarantors shall comply, jointly and severally, and
shall cause all of their Subsidiaries to comply, with the following covenants:
9.1 Punctual Payment. The Borrowers will duly and punctually pay or cause
to be paid the principal and interest on the Loans and all interest, fees and
other Obligations provided for in this Credit Agreement or any other Loan
Document, all in accordance with the terms of this Credit Agreement and the
other Loan Documents.
9.2 Maintenance of Location and Office. Each Borrower and each Guarantor
will maintain (i) its jurisdiction of formation in Delaware, and its chief
executive office in New York, New York, or at such other jurisdiction or place
in the United States of America as such Borrower or Guarantor shall designate by
not less than thirty (30) days prior written notice to the Administrative Agent.
9.3 Organizational Number. Neither Borrower, nor any Guarantor or Pledged
Entity, will change its organizational number or taxpayer identification number,
except upon thirty (30) days prior written notice to the Administrative Agent.
9.4 Records and Accounts. Each Borrower and each Guarantor will keep, and
cause each of their respective 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.
9.5 Delivery of Financial Statements and Notices.
9.5.1 Financial Statements, Reports, Etc. Each Borrower, Issuer Trust,
CharterMac Mortgage Capital and ARCap will furnish to the Administrative
Agent (either physically or through electronic delivery reasonably
acceptable to the Administrative Agent, which shall furnish to each
Lender):
(a) within ninety (90) days after the end of each Fiscal Year
with respect to CHC, and within one hundred five (105) days after the
end of each Fiscal Year with respect to each other such Person, its
consolidated (and, with respect to CM Corp. and ARCap, consolidating)
balance sheet and related statements of income, stockholders',
partners' or members' (as the case may be) equity and cash flows
showing the financial condition of such Person and its consolidated
Subsidiaries as of the close of such Fiscal Year and the results of
its operations and the operations of such Subsidiaries during such
year, together with comparative figures for the immediately preceding
Fiscal Year (except that, with respect to CM Corp. and ARCap,
comparative figures shall be provided beginning with the 2007 Fiscal
Year and for each Fiscal Year thereafter). Such balance sheets and
related statements for the Borrowers, Issuer Trust, CharterMac
Mortgage Capital and ARCap shall be audited by Deloitte & Touche LLP
or other
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independent public accountants of recognized national standing
reasonably acceptable to the Administrative Agent; and shall be
accompanied by an opinion of such accountants (which opinion shall not
be qualified in any material respect), to the effect that such
consolidated financial statements fairly present the financial
condition and results of operations of such Person and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied;
(b) within forty-five (45) days with respect to CHC and within
sixty (60) days with respect to CM Corp., Issuer Trust, CharterMac
Mortgage Capital and ARCap, after the end of each of the first three
Fiscal Quarters of each fiscal year, each such Person's consolidated
(and, with respect to CM Corp. and ARCap, consolidating) balance sheet
and related statements of income, stockholders', partners' or members'
(as the case may be) equity and cash flows showing the financial
condition of such Person and its consolidated Subsidiaries as of the
close of such Fiscal Quarter and the results of its operations and the
operations of such Subsidiaries during such Fiscal Quarter and the
then elapsed portion of the Fiscal Year, and comparative figures for
the same periods in the immediately preceding Fiscal Year, all
unaudited and certified by such Person's chief financial officer as
fairly presenting the financial condition and results of operations of
such Person and its consolidated Subsidiaries on a consolidated (and,
in the case of CM Corp. and ARCap, a consolidating) basis in
accordance with GAAP consistently applied, subject to normal year-end
audit adjustments;
(c) concurrently with any delivery of financial statements with
respect to CHC under Clause (a) or (b) above, a certificate
substantially in the form of Exhibit 9.5.1(c) (a "Compliance
Certificate") of CHC's chief financial officer opining and certifying
(i) that no Default has occurred or, if a Default has occurred,
specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto and (ii) setting
forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the covenants
contained in Sections 10.14 through 10.17 and, (x) setting forth the
Borrowers' calculation of Adjusted CAD, CAD, Consolidated Tangible Net
Worth, Fixed Charges, Funded Debt and Net Proceeds, (y) certifying
that there has been no change in the business activities, assets or
liabilities of any Person reasonably likely to result in a Material
Adverse Effect, or if there has been any such change, describing such
change in reasonable detail, and, (z) certifying that the Borrowers
and the Guarantors are in compliance with Section 10.13;
(d) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials
filed by such Persons with the SEC, or with any national securities
exchange, or distributed to its shareholders, partners or members, as
the case may be;
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(e) promptly after the receipt thereof by any such Person or any
Subsidiary, a copy of any "management letter" received by any such
Person from its certified public accountants, and the management's
response thereto; and
(f) promptly, from time to time, such other information regarding
the operations, business affairs and financial condition of such
Persons or any of their Subsidiaries, or compliance with the terms of
any Loan Document, as the Administrative Agent or any Lender may
reasonably request.
(g) Documents required to be delivered pursuant to Section
9.5.1(a), (b) or (d) (to the extent any such documents are included in
materials otherwise filed with the SEC) may be delivered
electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which such Person posts such documents,
or provides a link thereto, on such Person's website on the internet;
or (ii) on which such documents are posted on such Person's behalf on
IntraLinks/IntraAgency or another relevant website, if any, to which
each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the
Administrative Agent).
9.5.2 Notices. With reasonable promptness, but in all events within
five (5) Business Days after the Person described below has actual
knowledge thereof:
(a) Defaults. Each Borrower and each Guarantor will, and will
cause each of their respective Subsidiaries to notify the
Administrative Agent in writing of the occurrence of any act, event or
condition which constitutes a Default under any of the Loan Documents,
such notice to include a written statement of any remedial or curative
actions which such Person proposes to undertake to cure or remedy any
such Default before it becomes an Event of Default.
(b) Equity Collateral. Each Borrower and each Guarantor will, and
will cause each of their respective Subsidiaries to, give notice to
the Administrative Agent in writing of any events relating to the
Equity Collateral that materially adversely affect the rights of the
Administrative Agent or any other Creditor Parties with respect
thereto.
(c) Litigation. Each Borrower and each Guarantor will, and will
cause each of their respective Subsidiaries to, give notice to the
Administrative Agent in writing of any litigation or proceedings
threatened or any pending litigation and proceedings affecting any
such Person involving an amount in controversy exceeding $2,000,000,
or with respect to any of the foregoing Persons, that could reasonably
be expected to have a Material Adverse Effect, and stating the nature
and status of such litigation or proceedings. Each Borrower and each
Guarantor will, and will cause each of their respective Subsidiaries
to, give notice to the Administrative Agent in writing in form and
detail reasonably satisfactory to the Administrative Agent of any
judgment in excess of $2,000,000 not covered by insurance, final or
otherwise, against such Persons.
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Notwithstanding the foregoing, the parties hereto agree that the
litigation listed on Schedule 8.2 hereto shall be excluded from the
notice provisions of this Section.
(d) Change in Credit Rating. Each Borrower and each Guarantor
will, and will cause each of their respective Subsidiaries to, give
notice to the Administrative Agent in writing of any change in any
such Person's credit rating, or the credit rating pertaining to any
debt obligations of any such Person, as determined by ▇▇▇▇▇'▇, S&P or
any other nationally recognized rating service from time to time.
(e) Management. The Borrowers and Guarantors will provide to the
Administrative Agent prompt notice in the event the relationship of
any of their respective officers or other members of senior management
will be terminating.
(f) Material Adverse Change. Each Borrower and each Guarantor
will, and will cause each of its Subsidiaries to, give notice to the
Administrative Agent in writing of any events or circumstances that
are reasonably likely to cause a Material Adverse Effect.
9.5.3 True, Accurate and Complete Financial Statements. All financial
statements furnished hereunder shall be true, accurate and complete in all
material respects and shall fairly present in all material respects the
financial condition of such Persons as of the date thereof.
9.6 Existence; Conduct of Business.
9.6.1 Statutory Trusts. Each of the Borrowers, the Guarantors and the
Pledged Entities, if any, that are organized as statutory trusts (see
Schedule 8.5.1) 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 condition, financial or otherwise, of
such Person and (c) only engage in Permitted Businesses and as contemplated
by its Governing Documents.
9.6.2 Corporations. Each of the Borrowers, the Guarantors and the
Pledged Entities, if any, that are organized as Corporations (see Schedule
8.5.1) 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, (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
respective business, assets or condition, financial or otherwise, of the
Borrower, and (c) only engage in Permitted Businesses and as contemplated
by its Governing Documents.
9.6.3 Limited Liability Companies. Each of the Borrowers, the
Guarantors and the Pledged Entities, if any, that are organized as limited
liability companies (see Schedule 8.5.1) will (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 limited liability company, (b) preserve
and keep in full force all of such Person's rights and franchises, except
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where such failure would not have a material adverse effect on the
business, assets or condition, financial or otherwise, of such Person, and
(c) only engage in Permitted Businesses and as contemplated by such
Person's Governing Documents.
9.7 Insurance. Each of the Borrowers, each of the Guarantors, each of the
Pledged Entities and their respective Subsidiaries shall maintain with respect
to its business operations, and shall cause each of their respective
Subsidiaries to maintain, with financially sound and reputable insurers,
insurance with respect to such properties and its business against such
casualties, liabilities and contingencies as shall be in accordance with the
general practices of reasonably prudent businesses engaged in similar activities
in similar geographic areas and in amounts, containing such terms, in such
forms, covering such risks and for such periods as may be reasonably acceptable
to the Administrative Agent. At the Administrative Agent's request from time to
time, the Borrowers and Guarantors shall provide a comprehensive or partial list
(as requested) of all such policies and true, correct and complete copies of
some or all such policies, as may be requested.
9.8 Taxes and Trade Debt. The Borrowers and each Guarantor and Pledged
Entity will, and will cause each of their Subsidiaries to, duly pay and
discharge, or cause to be paid and discharged, before the same shall become
overdue, all Taxes 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 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.
9.9 Compliance with Laws, Contracts, Licenses, and Permits. Each Borrower,
each Guarantor and each Pledged Entity will, and will cause each of their
respective Subsidiaries to, comply with (a) all applicable legal requirements
now or hereafter in effect wherever its business is conducted, (b) the
provisions of its Governing Documents, and (c) all of its Contractual
Obligations (except during any period where such compliance is not permitted by
the terms of this Credit Agreement), except to the extent the failure to comply
with any of the foregoing would not be reasonably expected to result in a
Material Adverse Effect. If at any time while any Obligation is outstanding,
any authorization, consent, permit or license from any Governmental Authority,
or other third party consents, approvals, or notifications, shall become
necessary or required in order that any such Person may fulfill any of its
respective Obligations under any of the Loan Documents, such Person will
promptly take or cause to be taken all reasonable steps within its respective
power to obtain such authorization, consent, permit or license, or other third
party consents, and to provide such notifications, and furnish the
Administrative Agent with evidence thereof.
9.10 Indemnification Against Payment of Brokers' Fees. Each Borrower and
each Guarantor agrees to defend, indemnify and hold harmless the Administrative
Agent and each other Creditor Party from and against any and all liabilities,
damages, penalties, costs, and expenses, relating in any manner to any brokerage
or finder's fees in respect of the Loans (except as resulting from any
arrangements or agreements made with any broker or finder by the Administrative
Agent or another Creditor Party).
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9.11 Fiscal Year. The fiscal year of each Borrower and each Guarantor (and
each of their Subsidiaries) presently ends on December 31 of each year. If any
of the Borrowers, the Guarantors or their Subsidiaries shall change their fiscal
year end, such Person shall promptly furnish the Administrative Agent with
thirty (30) days prior written notice thereof.
9.12 Place for Records; Inspection. The Borrowers, the Guarantors and the
Pledged Entities shall maintain all of their business records at the address
specified in Section 18 of this Credit Agreement. Upon reasonable notice and at
reasonable times during normal business hours, the Administrative Agent shall
have the right to examine each Borrower's, each of the Guarantor's, and each
Pledged Entity's property and make copies of and abstracts from each such
Person'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 any such Person, it being agreed that the
Administrative Agent and each Lender receiving any such information shall hold
such information in confidence in accordance with the provisions of Section 25
hereof. Any transferee of any portion of the Loans or any holder of a
participation interest in the Loans shall be entitled to deal with such
information in the same manner and in connection with any subsequent transfer of
its interest in the Loans or of further participation interests therein;
provided, however, that the Administrative Agent, or any Lender, transferee,
holder or participant shall be bound by the confidentiality provisions of
Section 25.
9.13 Replacement Documentation. Upon receipt of an affidavit of an officer
of the Administrative Agent or a Lender as to the loss, theft, destruction or
mutilation of any Note, or 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, each
Borrower, each Guarantor and Origination Trust will promptly 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.
9.14 Further Assurances. Each Borrower and each Guarantor will cooperate
with, and will cause each of its Subsidiaries to cooperate with, the
Administrative Agent and execute such further instruments and documents as the
Administrative Agent shall reasonably request to carry out to the Administrative
Agent's reasonable satisfaction the transactions contemplated by this Credit
Agreement and the other Loan Documents.
9.15 Guaranties. Each of the Guarantors shall at all times comply with the
terms and conditions of its respective Guaranty.
9.16 Additional Information. Without derogating the Borrowers' obligations
hereunder, and each Guarantor's obligations pursuant hereto and to its
respective Guaranties, each Borrower and each Guarantor will promptly supply the
Administrative Agent with such additional information relating to this Credit
Agreement and the other Loan Documents and the performance of the Obligations
contemplated hereby and thereby as the Administrative Agent may hereafter
reasonably request from time to time.
9.17 Exchange Listing. CHC shall maintain at least one class of its common
shares having trading privileges on the New York Stock Exchange, the American
Stock Exchange or
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another nationally recognized exchange acceptable to the Administrative Agent
and the Required Lenders.
9.18 CAD Covenant; Additional Guarantors and Pledged Entities.
9.18.1 CAD Covenant. The Borrowers and Guarantors shall cause the CAD
generated in the aggregate by the Borrowers, the Guarantors (other than
CharterMac Capital Company), and the Pledged Entities to comprise at least
90% of the CAD of CHC on a consolidated basis (excluding CAD generated by
Centerbrook) (the "CAD Covenant").
9.18.2 Additional Guarantors or Pledged Entities. Unless there exists
a Valid Business Impediment, the Borrowers and the Guarantors shall cause
additional Persons to become Guarantors from time to time so as to assure
compliance with the CAD Covenant. In the event that there exists a Valid
Business Impediment to such a Person becoming a Guarantor hereunder, the
Borrowers and the Guarantors shall cause the holders of all the Capital
Stock of such Person to be pledged to the Administrative Agent in order for
such Person to become a Pledged Entity.
9.19 Issuer Trust Preferred Shares Covenants. Issuer Trust shall maintain
with no material modifications all covenants applicable to and binding upon
Issuer Trust Preferred Shares; provided, however, that with respect to the
so-called leverage covenant applicable thereto, such covenant may be modified to
provide that the maximum leverage against the fair market value of Issuer
Trust's bond assets, including all existing and future Issuer Trust Preferred
Shares or similar obligations, shall be no more than 85%.
9.20 Ownership of CM Corp., Guarantors and Pledged Entities.
(a) Holding Trust shall hold at all times, beneficially and of
record, 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.
(b) Holding Trust and Issuer Trust shall not issue any additional
Capital Stock or any rights or instruments convertible into Capital
Stock, other than issuances of Issuer Trust Preferred Shares.
(c) CHC shall hold at all times, beneficially and of record, (i)
all of the Capital Stock of CM Corp., (ii) all of the Capital Stock of
CM ARCap Investors LLC (iii) 100% of the Common Shares of Beneficial
Interest of Holding Trust (as defined in the Governing Documents of
Holding Trust), and (iv) 100% of the Common Shares of Beneficial
Interest of Holding Trust II (as defined in the Governing Documents of
Holding Trust II).
(d) Holding Trust II shall hold at all times, beneficially and of
record, 100% of the Charter Mac Equity Issuer Trust II Common Shares
(as defined in
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the Governing Documents of Charter Mac Equity Issuer Trust II) and
voting control of Charter Mac Equity Issuer Trust II.
(e) CM ARCap Investors LLC shall hold at all times, beneficially
and of record, 100% of the "Common Units" of ARCap (as defined in
ARCap's Governing Documents).
(f) ARCap shall hold at all times, beneficially and of record,
99.99% of the Capital Stock of ARCap REIT, Inc.
(g) ARCap REIT, Inc. shall hold at all times, beneficially and of
record, all of the Capital Stock of (i) ARCap 2004-RR3
Resecuritization, Inc., (ii) ARCap 2005-RR5 Resecuritization, Inc.,
and (iii) ARCap Finance Corporation.
(h) CM Corp. shall hold at all times, beneficially and of record,
(i) all of the Common Units of CharterMac Capital Company (as defined
in the Governing Documents of CharterMac Capital Company, (ii) 1% of
the Capital Stock of CharterMac Capital, (iii) all of the Capital
Stock of CharterMac Mortgage Capital, (iv) 15.5% of the Capital Stock
of CharterMac Residual Holder, and (v) all of the Capital Stock of
ARCap Servicing, Inc.
(i) CharterMac Capital Company shall hold at all times,
beneficially and of record, 99% of the Capital Stock of CharterMac
Capital.
(j) Origination Trust shall hold at all times, beneficially and
of record, 84.5% of the Capital Stock of CharterMac Residual Holder.
(k) CM Corp. shall maintain at all times direct and indirect
ownership of at least 51% of the voting and common equity interests in
the Capital Stock of Centerbrook and Centerbrook Holdings LLC.
10. NEGATIVE COVENANTS; FINANCIAL COVENANTS
For so long as this Credit Agreement is in effect, and until such time as all of
the Obligations have been indefeasibly fully paid and performed, unless the
Creditor Parties shall otherwise consent to the extent and in the manner set
forth in Section 23, the Borrowers and the Guarantors shall comply, jointly and
severally, with the following covenants:
10.1 Liens. The Borrowers and Guarantors shall not create, incur or assume,
and they shall not permit or suffer any Pledged Entity creating, incurring or
assuming, any Lien upon or with respect to any of such Person's assets,
including, without limitation, any Capital Stock, except (collectively,
"Permitted Liens"):
10.1.1 Affordable Housing Syndications. Liens on Capital Stock in
Affiliates that own multi-family affordable housing projects granted by
such Persons to secure capital contribution obligations, or Liens granted
by such Affiliates, in the ordinary course of CHC's Subsidiaries'
multi-family affordable housing business;
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10.1.2 Governmental Charges. Liens or charges for current Taxes which
are not delinquent or which remain payable without penalty, or the validity
of which is being contested in good faith by appropriate proceedings upon
stay of execution of the enforcement thereof provided the obligor with
respect thereto shall have set aside on its books and shall maintain
adequate reserves for their payment in conformity with GAAP;
10.1.3 Liens Contemplated Hereby. Liens in favor of the Administrative
Agent, on behalf of the Lenders, pursuant to and as contemplated by the
terms hereof and by the terms of the other Loan Documents;
10.1.4 CMCC Mortgage Warehouse Line. Liens pursuant to and as
contemplated by the CMCC Mortgage Warehouse Line (provided, however, that
no Lien in connection with the CMCC Mortgage Warehouse Line gives rise to
any interest in any of the Collateral);
10.1.5 ARCap. Liens created in the ordinary course of business
consistent with past practices in connection with non-recourse repurchase
arrangements by ARCap and its Subsidiaries;
10.1.6 Existing Liens. Liens existing on the date hereof and listed on
Schedule 8.3 and any renewals or extensions thereof, provided that (i) the
property covered thereby is not changed, (ii) the amount secured or
benefited thereby is not increased, (iii) the direct or any contingent
obligor with respect thereto is not changed, and (iv) any renewal or
extension of the obligations secured or benefited thereby is permitted by
Section 10.3;
10.1.7 Mechanics Liens, etc. Carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business which are not overdue for a period of more than thirty
(30) days or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto
are maintained on the books of the applicable Person;
10.1.8 Pledges & Deposits. Pledges or deposits in the ordinary course
of business in connection with workers' compensation, unemployment
insurance and other social security legislation, other than any Lien
imposed by ERISA;
10.1.9 Bids. Deposits to secure the performance of bids, trade
contracts and leases (other than Indebtedness), statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
10.1.10 Easements. Easements, rights-of-way, restrictions and other
similar encumbrances affecting real property which, in the aggregate, are
not substantial in amount, and which do not in any case materially detract
from the value of the property subject thereto or materially interfere with
the ordinary conduct of the business of the applicable Person;
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10.1.11 Judgments. Liens securing judgments for the payment of money
not constituting an Event of Default under Section 11.1.7;
10.1.12 Purchase Money. Liens securing Indebtedness permitted under
Section 10.3.1(e); provided that (i) such Liens do not at any time encumber
any property other than the property financed by such Indebtedness and (ii)
the Indebtedness secured thereby does not exceed the cost or fair market
value, whichever is lower, of the property being acquired on the date of
acquisition;
10.1.13 Precautionary UCC Financing Statements. The interest of a
lessor under Liens arising from precautionary UCC financing statement
filings regarding leases (other than Indebtedness) entered into by such
Persons in the ordinary course of business;
10.1.14 Set-Off. Liens that are contractual or statutory set-off
rights arising in the ordinary course of business with financial
institutions; and
10.1.15 Licenses. Any interest or title of a licensor, lessor or
sublessor under any license or lease agreement pursuant to which rights are
granted to such Persons.
10.2 Double Negative Pledge.
10.2.1 Negative Pledge. CM Corp. shall not grant, create, or suffer to
be granted or created, any Lien on the Capital Stock in Centerbrook
Holdings LLC or CharterMac Mortgage Capital.
10.2.2 Double Negative Pledge. Other than pursuant to the terms of
this Credit Agreement, in no event shall CM Corp. agree with, or become
obligated to, any other Person to refrain from granting or creating a Lien
on Capital Stock in Centerbrook Holdings LLC or CharterMac Mortgage
Capital.
10.3 Indebtedness. The Borrowers and Guarantors shall not incur, assume or
become obligated with respect to, or permit or suffer any Pledged Entity
incurring, assuming or becoming obligated with respect to, directly or
indirectly, any Indebtedness (on a consolidated and individual basis) except the
following (collectively, "Permitted Indebtedness"):
10.3.1 Borrowers, Guarantors and Pledged Entities. With respect to the
Borrowers, the Guarantors and the Pledged Entities:
(a) Indebtedness for borrowed money existing on the date of this
Credit Agreement, listed and described, but only to the extent so
listed and described, on Schedule 10.3.1;
(b) Indebtedness for Taxes to the extent that payment thereof
shall at the time not be required to be made in accordance with
Section 9.8;
(c) Indebtedness on open account incurred by any such Person for
the purchase price of services, materials and supplies in the ordinary
course of business (not as a result of borrowing), so long as all of
such open account
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Indebtedness shall be promptly paid and discharged when due or in
conformity with customary trade terms and practices, except for any
such open account Indebtedness which is being contested in good faith
by such Person and as to which adequate reserves required by GAAP have
been established and are being maintained and as to which no Lien has
been placed on any property of such Person;
(d) Indebtedness consisting of obligations owed by a Borrower,
Guarantor or a Pledged Entity to any of their respective Affiliates;
provided, however, that if any such Affiliate is not a Borrower or a
Guarantor, such Indebtedness must be subordinated to the Obligations
in accordance with the Intercompany Subordination Agreement upon terms
and conditions satisfactory to the Administrative Agent;
(e) Indebtedness in respect of capital leases and purchase money
obligations for fixed or capital assets within the limitations set
forth in Section 10.1.12, provided, however, that the aggregate amount
of all such Indebtedness at any one time outstanding shall not exceed
$5,000,000;
(f) Indebtedness incurred on a non-recourse basis (other than
recourse permitted under Section 10.3.2(b));
(g) Indebtedness consisting of Obligations; and
(h) Indebtedness consisting of cash management charges, or
arising out of ACH services, in each case incurred in the ordinary
course of business.
10.3.2 CHC and CM Corp. With respect to CHC and CM Corp. without
duplication:
(a) The Obligations;
(b) Risk-Adjusted Contingent Liabilities not to exceed in the
aggregate $450,000,000; and
(c) Liabilities incurred pursuant to Derivative Agreements in the
ordinary course of business and not for speculation.
10.3.3 CHC. With respect to CHC, without duplication:
(a) Liabilities of CHC incurred in the ordinary course of
business similar to CHC's existing securitization programs, or any
similar secured financing program, or other securitization programs
upon terms and conditions consistent with the market for such
programs, but not incurred through the borrowing of money;
(b) Indebtedness to ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac, GNMA, FHA or other
parties with whom CHC or its Subsidiaries originate, sell, repurchase
or service
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mortgage loans, to the extent directly relating to or arising out of
such origination, sale, repurchase, or servicing in the ordinary
course of business;
(c) Indebtedness secured by real property acquired upon
foreclosure of mortgages, to the extent directly related to such real
property, not in excess of the fair market value thereof, and
reasonably expected by CHC to be recovered from the sale or other
disposition of the subject real property;
(d) Senior Unsecured Indebtedness not to exceed $300,000,000 in
aggregate principal face amount; and
(e) Subordinated Debt.
10.3.4 CM Corp. With respect to CM Corp., without duplication:
(a) Preferred or structured debt or equity which shall be
subordinated to the Loans upon terms and conditions satisfactory to
the Administrative Agent; and
(b) Counterparty-type exposure relating to guaranteed tax credit
funds.
10.3.5 ARCap. With respect to ARCap and its Subsidiaries, without
duplication: non-recourse repurchase arrangements, in each case entered
into in the ordinary course of business consistent with past practices.
10.3.6 Issuer Trust. Indebtedness to the extent permitted under
Section 9.19.
10.4 Merger; Ownership Interests; Sale of Assets.
The Borrowers and Guarantors shall not, and shall not permit or suffer any
of the Pledged Entities to, with respect to each such Person:
10.4.1 Mergers, Consolidations and Asset Sales. Merge into or
consolidate with any other Person, or permit any other Person to merge into
or consolidate with it, or sell, transfer, lease or otherwise dispose of
(in one transaction or in a series of transactions) all or substantially
all of the assets (whether now owned or hereafter acquired) of such Person,
except that, provided that there is not then in existence any Event of
Default and no Event of Default will occur as a result of such a
transaction, any of the Borrowers, the Guarantors or the Pledged Entities
may enter into a merger or consolidation in which such Person is the
surviving entity.
10.4.2 Other Asset Transfers. The Borrowers and the Guarantors shall
not effect, and shall not permit or suffer the Pledged Entities effecting,
any sale, disposition, contribution or other transfer of their respective
tangible or intangible assets other than (a) in connection with
securitizations and other transactions consummated in the ordinary course
of business consistent with past practices, (b) sales, dispositions,
contributions or
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other transfers to other entities included among the Borrowers, the
Guarantors and the Pledged Entities, and (c) sales generating Asset Sale
Proceeds applied to prepay the Loans in accordance with the terms of
Section 4.2.2.
10.5 Loans, Guarantees and Investments. The Borrowers and Guarantors will
not make, and will not permit or suffer any of the Pledged Entities making, any
loans, advances or extensions of credit to any Person, or making any guaranty or
surety for any Person, except (a) in the ordinary course of business consistent
with past practices (including, without limitation, entering into joint
ventures), (b) advances to the Borrowers', the Guarantors', the Pledged
Entities' or their respective Subsidiaries' employees in the ordinary course of
business for reasonable expenses to be incurred by such employees for the
benefit of such advancing Person, (c) advances to the Borrowers', the
Guarantors', the Pledged Entities', or their respective Subsidiaries' employees,
directors or individuals serving in similar capacities in connection with
co-investment programs in managed funds, to the extent such advances are
permitted by applicable law and to the extent such advances do not exceed in the
aggregate at any time outstanding $10,000,000 (such $10,000,000 limit to be
reduced dollar for dollar by the amount of any such advances that are forgiven
rather than repaid), (d) acquisitions within Permitted Businesses, (e) other
transactions expressly permitted by or contemplated under the terms of this
Credit Agreement, (f) investments in direct obligations of the United States of
America or of any state, U.S. federal agency obligations and commercial paper
designated as "prime" by the national credit office of Dun & Bradstreet, and (g)
CHC and CM Corp. may incur Risk-Adjusted Contingent Liabilities consistent with
the terms of Section 10.3.2(b).
10.6 Distributions Prior to Default. CHC shall make no Distributions so as
to cause the aggregate Distributions made by CHC, during the one year period
ending on the date of the most recent Distribution, to exceed CHC's CAD for the
four consecutive Fiscal Quarter period most recently ended; provided, however,
that Distributions in an aggregate amount not greater than $30,000,000 in excess
of CAD may be made solely in connection with and to the extent such
Distributions are attributable to CHC's equity buy back program of any or all of
the original 1,500,000 shares designated for purchase under such program (as
adjusted for any share splits affecting such shares), as described in CHC's
Filings in effect on the date hereof.
10.7 Distributions After Default.
10.7.1 CHC. CHC shall not make any Distributions so long as either (a)
an Event of Default has occurred and is continuing or would be caused by
the making of any such Distribution, or (b) a Default arising out of a
breach of any of Sections 9.1, 9.18, or 10.14 through 10.17, has occurred
and is continuing or would be caused by the making of any such
Distribution.
10.7.2 Guarantors and Pledged Entities. So long as a Default has
occurred and is continuing or would be caused by the making of any
Distributions, CM Corp., the Guarantors and the Pledged Entities shall not
make any Distributions to any Persons other than to a Person that is a
Borrower or a Guarantor.
10.8 Affiliate Indebtedness. So long as a Default has occurred and is
continuing, no Borrower, Guarantor or Pledged Entity will make any payments to
any Affiliate that is not a
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Borrower or Guarantor on account of any Indebtedness owed by such Person to such
Affiliate, other than: (a) reimbursements for the payment of Taxes; and (b)
payments in order to cover operating expenses incurred in the ordinary course of
business, provided that such expenses are upon terms and conditions no more
favorable to such Affiliate than would be available in an arms-length
transaction between independent parties.
10.9 Purchase of Margin Stock. Except with the prior written consent of the
Administrative Agent, the Borrowers and the Guarantors shall not utilize and
shall not permit or suffer any other Person utilizing, any part of the proceeds
of the Loans to purchase or carry any margin stock (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System) or to
extend credit to others for the purpose of purchasing or carrying any such
margin stock.
10.10 Transactions with Affiliates. Except as permitted by Section 10.1, or
with the prior written consent of the Administrative Agent, the Borrowers and
the Guarantors shall not enter, and shall not permit or suffer the Pledged
Entities entering, into any purchase, sale, lease or other transaction with an
Affiliate (other than the Borrowers, the Guarantors or the Pledged Entities),
except in the ordinary course of business on terms that are no less favorable to
the Borrower, Guarantor or Pledged Entity, as the case may be, than those that
might be obtained at the time in a comparable arm's-length transaction with any
Person who is not an Affiliate.
10.11 Amendment to Governing Documents. Except with the prior written
consent of the Administrative Agent, the Borrowers, Guarantors and Pledged
Entities shall not amend or agree with any Person to vary the terms of any of
their respective Governing Documents; provided, however, that any such Person
may enter into such amendments or agreements if such change or amendment does
not or will not adversely affect (a) the liability, risk or rights of any
Creditor Party under any of the Loan Documents or in connection with any of the
transactions contemplated hereby or thereby, or (b) the status of such Person as
an entity that would not be substantively consolidated with any other of the
Borrowers, the Guarantors or the Pledged Entities in the event any of them is
the debtor in any bankruptcy proceeding.
10.12 Business Lines. The Borrowers and the Guarantors shall not engage,
and shall not permit or suffer any Pledged Entity engaging, in any business
lines, other than their respective primary lines of business as of the date of
this Credit Agreement, which permitted business lines include tax exempt bond
origination, tax credit syndication, commercial mortgage banking and credit
enhancement through Centerbrook; and such Persons may also engage in other lines
of business relating to real estate finance and asset management (collectively,
"Permitted Businesses").
10.13 Competing Businesses. The Borrowers and the Guarantors will not
create, own or operate, and will not permit or suffer any Pledged Entity
creating, owning or operating, any operating business that would compete
directly with a business which CHC or any of its Subsidiaries operates or in
which CHC or any of its Subsidiaries has any interest, unless the Person pursing
such competing operating business becomes a Guarantor (or, if there is a Valid
Business Impediment to such Person becoming a Guarantor, a Pledged Entity) upon
terms and conditions acceptable to the Administrative Agent.
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10.14 Consolidated Tangible Net Worth. CHC's Consolidated Tangible Net
Worth shall at all times be equal to or greater than the sum of (a) $300,000,000
plus (b) 75% of Net Proceeds raised after June 1, 2006.
10.15 Adjusted CAD to Fixed Charges Ratio. CHC shall maintain at the end of
each Fiscal Quarter for the four Fiscal Quarter period then ending a ratio of
Adjusted CAD to Fixed Charges equal to or greater than 2.75 to 1.00.
10.16 Minimum CAD. CHC shall maintain (a) for each four Fiscal Quarter
period ending on or before September 30, 2007: CAD of $100,000,000 or more; (b)
for each four Fiscal Quarter period ending after September 30, 2007 and on or
before March 31, 2009: CAD of $110,000,000 or more; and (c) for each four Fiscal
Quarter period ending on or after June 30, 2009: CAD of $120,000,000 or more.
10.17 Funded Debt to Adjusted CAD Ratio. CHC shall maintain at the end of
each Fiscal Quarter, for the four Fiscal Quarters then ending, a ratio of Funded
Debt to Adjusted CAD equal to or less than 4.00 to 1.00.
11. DEFAULT
11.1 Events of Default. Each of the following events or circumstances,
unless cured within any applicable grace period set forth or referred to below
in this Section, shall constitute an "Event of Default":
11.1.1 Failure to Pay.
(a) The Borrowers shall fail to pay any principal on any of the
Loans as and when the same shall become due and payable; or
(b) The Borrowers shall fail to pay any interest or any other
Obligation under the Loans within five (5) days of when the same is
due and payable;
11.1.2 Failure to Perform. Either Borrower, any Guarantor or
Origination Trust shall: (a) fail to comply with any of its Negative
Covenants and Financial Covenants; (b) fail to comply, within thirty (30)
days after such Person receives notice of such failure from the
Administrative Agent or from any Lender, with any of its other agreements
and covenants contained herein which are not otherwise referenced herein
(such thirty day period to be extended at the discretion of the
Administrative Agent (but not beyond forty-five (45) days) if such failure
can be cured, the Borrowers and Guarantors have promptly commenced and are
diligently pursuing a cure and the Administrative Agent determines that
such extension is reasonably necessary in order to effect such a cure); or
(c) fail to comply with any of its other agreements, covenants, liabilities
and obligations contained in any of the other Loan Documents beyond any
applicable notice and grace periods;
11.1.3 Breach of Representation or Warranty. Any representation or
warranty of either Borrower, any Guarantor or Origination Trust in this
Credit Agreement or any
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of the other Loan Documents shall have been false or misleading in any
material respect upon the date when made or deemed to have been made or
repeated;
11.1.4 Failure to Pay Other Indebtedness. Either Borrower, any
Guarantor, Origination Trust or any Pledged Entity shall be in default or
breach of any recourse or non-recourse obligations aggregating $10,000,000
or more, and the effect thereof is (i) to cause an acceleration, mandatory
redemption or other required repurchase of such obligations, or (ii) to
permit the holder(s) of such obligations to accelerate the maturity of any
such obligations or require a redemption or other repurchase of such
obligations; or any such obligations shall be otherwise declared to be due
and payable (by acceleration or otherwise) or required to be prepaid,
redeemed or otherwise repurchased (other than by a regularly scheduled
required prepayment) prior to the stated maturity thereof;
11.1.5 Insolvency. Either Borrower, any Guarantor, Origination Trust
or any Pledged Entity 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
any such Person or of any substantial part of any such Person's assets or
shall commence any case or other proceeding relating to any such Person
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 any such Person and any such Person shall indicate its approval
thereof, consent thereto or acquiescence therein;
11.1.6 Involuntary Proceedings. (i) The filing of any case or other
proceeding against either Borrower, any Guarantor, Origination Trust or any
Pledged Entity 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 twenty (20) days and dismissed within sixty (60)
days of its commencement; (ii) a decree or order is entered appointing a
such trustee, custodian, liquidator or receiver for any such Person, or
adjudicating any such Person bankrupt or insolvent, or approving a petition
in any such case or other proceeding; or (iii) a decree or order for relief
is entered in respect of any such Person, in an involuntary case under
federal bankruptcy laws as now or hereafter constituted;
11.1.7 Judgments. There shall remain in force, undischarged,
unsatisfied, unstayed or unvacated, or not bonded pending appeal, for more
than ninety (90) days, whether or not consecutive, any uninsured final
judgment against either Borrower, any Guarantor, Origination Trust or any
Pledged Entity that, with other outstanding uninsured final judgments,
undischarged, against such Persons in the aggregate exceeds in the
aggregate $10,000,000.00;
11.1.8 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
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commenced by or on behalf of either Borrower, any Guarantor, Origination
Trust or any Pledged Entity, 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;
11.1.9 ERISA. There occurs one or more ERISA Events that individually
or in the aggregate results in or otherwise is associated with liability of
any Borrower, Guarantor, Pledged Entity or ERISA Affiliate in excess of
$1,000,000 annually; provided, however, that it shall be an Event of
Default if there exists, as of any valuation date for a Guaranteed Pension
Plan, or in the aggregate for all Guaranteed Pension Plans (excluding
Guaranteed Pension Plans with assets in excess of benefit liabilities) an
excess of the actuarial present value (determined on the basis of
reasonable assumptions employed by the independent actuary for such plan)
of benefit liabilities (as defined in Section 4001(a)(16) of ERISA) over
the fair market value of the assets of such plan, only if such excess
individually or in the aggregate for all Guaranteed Pension Plans
(excluding in such computation any Guaranteed Pension Plans with assets
greater than benefit liabilities) exceeds $1,000,000 annually.
11.1.10 Indictment. Either Borrower, any Guarantor, Origination Trust
or any Pledged Entity shall be indicted for a federal crime, a punishment
for which could include the forfeiture of any assets of such Person;
11.1.11 Material Adverse Change. There shall have occurred any change
in or to the assets, liabilities, financial condition, business operations,
or prospects of either Borrower, any Guarantor, any Pledged Entity or any
of their Subsidiaries, which change taken as a whole constitutes a Material
Adverse Effect.
11.2 Remedies Upon Event of Default.
11.2.1 Accelerate Debt. The Administrative Agent may, and with the
direction of the Required Lenders shall, declare the Obligations evidenced
by this Credit Agreement and the other Loan Documents immediately due and
payable and such date shall constitute the Revolver Maturity Date and the
Term Loan Maturity Date (provided that in the case of the occurrence of an
event set forth in Sections 11.1.5 and 11.1.6, such acceleration shall be
automatic); and
11.2.2 Pursue Remedies. The Administrative Agent may, and with the
direction of the Required Lenders shall, pursue any and all remedies
provided for hereunder, or under any one or more of the other Loan
Documents. Except as expressly contemplated or permitted by the terms of
this Credit Agreement, each Lender may exercise setoff rights as
contemplated by, and pursuant to, Section 12 solely with the consent of the
Required Lenders and the Administrative Agent, but not otherwise. Further,
no Lender in its capacity as such, may proceed to protect and enforce its
rights by suit in equity, action at law or other proceeding, whether for
the specific performance of any covenant or agreement contained in this
Credit Agreement or the other Loan Documents or any instrument pursuant to
which the Obligations to such Lender are evidenced, or otherwise
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proceed to enforce the payment thereof or exercise any other legal or
equitable right of such Lender, all such rights being delegated to the
Administrative Agent in accordance with the terms of this Credit Agreement.
11.2.3 Power of Attorney. For the purpose of exercising the rights
granted by this Section, as well as any and all other rights and remedies
of the Administrative Agent or the Lenders, each of the Borrowers and each
Guarantor hereby irrevocably constitutes and appoints the Administrative
Agent (or any agent designated by the Administrative Agent) its true and
lawful attorney-in-fact, with full power of substitution, which appointment
is coupled with an intent, exercisable upon and during the continuance of
any Event of Default, to execute, acknowledge and deliver any instruments
and to and perform any acts in the name and on behalf of the Borrowers or
any Guarantor.
11.3 Written Waivers. If a Default is waived by the Administrative Agent
and/or any other Creditor Party, in accordance with the applicable provisions of
Section 23, in their sole discretion, pursuant to a specific written instrument
executed by an authorized officer of such Persons, respectively, the Default so
waived shall be deemed to have never occurred.
11.4 Allocation of Proceeds. If an Event of Default shall have occurred and
be continuing and the Maturity Dates have been accelerated, all payments
received by the Administrative 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 Borrowers hereunder or thereunder, shall be applied in the following
order and priority:
(a) amounts due to the Administrative Agent, in its capacity as such,
in respect of fees and expenses due under Section 14, or otherwise due
under this Credit Agreement and the other Loan Documents;
(b) any amounts due the other Creditor Parties pursuant to the terms
of this Credit Agreement and the other Loan Documents other than principal
of or interest on the Loans;
(c) payments of interest on the Loans to be applied pro rata to each
Lender and proportionately to the aggregate unpaid and accrued interest on
the Revolving Loans and the Term Loan respectively;
(d) payments of principal of the Revolving Loans and Term Loans, and
any amounts due in respect of Derivative Agreements relating to the Loans,
to be applied pro rata to each Lender and proportionately to the aggregate
of such unpaid principal and amounts respectively;
(e) payments of all other Obligations pro rata to each Creditor Party;
and
(f) any amount remaining after application as provided above, and
after all of the Obligations have been indefeasibly paid in full, shall be
paid to either Borrower or whomever else may be legally entitled thereto.
11.5 Performance by the Administrative Agent. If either Borrower or any of
the Guarantors shall fail to perform any covenant, duty or agreement contained
in any of the Loan
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Documents, the Administrative Agent may perform or attempt to perform such
covenant, duty or agreement on behalf of such Person after the expiration of any
cure or grace periods set forth herein if and to the extent the Administrative
Agent considers in its discretion that such performance is necessary or
advisable in order to protect or preserve the Collateral or in order to protect
against a potential Material Adverse Effect. In such event, such Person shall,
at the request of the Administrative Agent, promptly pay any amount expended by
the Administrative Agent in such performance or attempted performance to the
Administrative Agent, together with interest thereon at the applicable Default
Rate from the date of such expenditure until paid. Notwithstanding the
foregoing, the Administrative Agent shall not have any liability or
responsibility whatsoever for the performance of any obligation of such Person
under this Credit Agreement or any other Loan Document in the absence of its
gross negligence or willful misconduct. All amounts expended by the
Administrative Agent pursuant to this Section shall constitute Obligations
secured by the Collateral.
11.6 Rights Cumulative. The rights and remedies of the Administrative Agent
and the other Creditor Parties under this Credit 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 Administrative Agent and the other Creditor
Parties may be selective and no failure or delay by any such Person in
exercising any right shall operate as a waiver thereof, 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.
12. SETOFF.
Regardless of the adequacy of any collateral, if any Event of Default shall have
occurred and be continuing, any deposits or other sums credited by or due from
the Administrative Agent or any other Creditor Party to either Borrower or any
of the Guarantors and any securities or other property of either Borrower or any
of the Guarantors in the possession of the Administrative Agent or such other
Creditor Party or any of their respective Affiliates may, at any time, solely
with the consent of the Administrative Agent, and, with respect to such other
Creditor Party with the consent of the Required Lenders, without demand or
notice (any such notice being expressly waived by the Borrowers and the
Guarantors), in whole or in part, be applied to or set off by the Administrative
Agent or such other Creditor Party against the payment of Obligations, now
existing or hereafter arising, of the Borrowers or any of the Guarantors to the
Administrative Agent or such other Creditor Party regardless of the adequacy of
any other collateral securing the Loans. The Administrative Agent and each of
the other Creditor Parties agree with and among each other that (i) if an amount
to be set off is to be applied to Indebtedness of the Borrowers or any of the
Guarantors to the Administrative Agent or such other Creditor Party, such amount
shall be applied ratably first to Obligations owed to the Creditor Party
exercising such right of set off and pro rata to any other similarly situated
Creditor Parties, and then to the Obligations owed all other Creditor Parties,
including, without limitation, Reimbursement Obligations owed to the Issuing
Bank or all Lenders, and (ii) if the Administrative Agent or such other Creditor
Party shall receive from either Borrower or any Guarantor or any other source,
whether by voluntary payment, exercise of the right of setoff, counterclaim,
cross action, enforcement of the claim evidenced by this Credit Agreement in the
name of, or constituting Reimbursement Obligations
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owed to, the Administrative Agent or such other Creditor Party by proceedings
against a Borrower or a Guarantor at law or in equity or by proof thereof in
bankruptcy, reorganization, liquidation, receivership or similar proceedings, or
otherwise, and shall retain and apply to the payment of the Obligations owed to
the Administrative Agent or such other Creditor Party any amount in excess of
its ratable portion of the payments received by all of the Creditor Parties with
respect to the debt evidenced hereby corresponding to all of the Creditor
Parties, such Creditor Party will make such disposition and arrangements with
the other Creditor Parties with respect to such excess, either by way of
distribution, pro tanto assignment of claims, subrogation or otherwise as shall
result in each Creditor Party receiving in respect of the debt evidenced hereby
in its name or Reimbursement Obligations owed it, its proportionate payment as
contemplated by this Credit Agreement; provided that if all or any part of such
excess payment is thereafter recovered from such Creditor Party, such
disposition and arrangements shall be rescinded and the amount restored to the
extent of such recovery, but without interest. ANY AND ALL RIGHTS TO REQUIRE THE
ADMINISTRATIVE AGENT TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY
OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO THE ADMINISTRATIVE
AGENT OR ANY OTHER CREDITOR PARTY EXERCISING ANY RIGHT OF SETOFF WITH RESPECT TO
SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF EITHER BORROWER OR ANY GUARANTOR ARE
HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
13. THE ADMINISTRATIVE AGENT.
13.1 Authorization.
13.1.1 Authorization to Act. The Administrative Agent is authorized to
take such action on behalf of each of the Creditor Parties and to exercise
all such powers as are hereunder and under any of the other Loan Documents
and any related documents delegated to the Administrative Agent, together
with such powers as are reasonably incident thereto, including the
authority, without the necessity of any notice to or further consent of the
Creditor Parties, from time to time to take any action with respect to any
Collateral or the Loan Documents which may be necessary to perfect,
maintain perfected or insure the priority of the security interest in and
liens upon the Collateral granted pursuant to the Loan Documents, and no
duties or responsibilities not expressly assumed herein or therein shall be
implied to have been assumed by the Administrative Agent.
13.1.2 Independent Contractor. The relationship between the
Administrative Agent and each of the Creditor Parties is that of an
independent contractor. The use of the term "Administrative Agent" is for
convenience only and is used to describe, as a form of convention, the
independent contractual relationship between the Administrative Agent and
each of the Creditor Parties. Nothing contained in this Credit Agreement
nor the other Loan Documents shall be construed to create an agency, trust
or other fiduciary relationship between the Administrative Agent and any of
the Creditor Parties.
13.1.3 Representative. As an independent contractor empowered by the
Creditor Parties to exercise certain rights and perform certain duties and
responsibilities hereunder and under the other Loan Documents, the
Administrative Agent is nevertheless
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a "representative" of the Creditor Parties, as that term is defined in
Article 1 of the Uniform Commercial Code, for purposes of actions for the
benefit of the Creditor Parties and the Administrative Agent with respect
to all collateral security and guaranties contemplated by the Loan
Documents. Such actions include the designation of the Administrative Agent
as "secured party," "pledgee" or the like on all financing statements and
other documents and instruments, whether recorded or otherwise, relating to
the attachment, perfection, priority or enforcement of any security
interests, pledges, mortgages or deeds of trust in collateral security
intended to secure the payment or performance of any of the Obligations,
all for the benefit of the Creditor Parties and the Administrative Agent.
13.1.4 Regarding Collateral. The Administrative Agent is authorized
and directed by the Creditor Parties to consent to any sale or other
disposition of Collateral permitted to be sold or disposed of hereunder,
and to release its liens on such Collateral, and the Administrative Agent
is authorized to rely on a certification from the Borrowers that such sale
or disposition is permitted hereunder.
13.2 Employees, Advisors and the Administrative Agent. The Administrative
Agent may exercise its powers and execute its duties by or through employees or
agents and shall be entitled to take, and to rely on, advice of counsel
concerning all matters pertaining to its rights and duties under this Credit
Agreement and the other Loan Documents. The Administrative Agent may utilize the
services of such Persons as the Administrative Agent in its sole discretion may
reasonably determine, and all reasonable fees and expenses of any such Persons
shall be paid by the Borrowers pursuant to Section 14.
13.3 No Liability. Neither the Administrative Agent (in its capacity as
Administrative Agent) nor any of its Related Parties nor any other Person
assisting them in their duties nor any agent or employee thereof, shall be
liable to any Creditor Party for any waiver, consent or approval given or any
action taken, or omitted to be taken, in good faith by it or them hereunder or
under any of the other Loan Documents, or in connection herewith or therewith,
or be responsible for the consequences of any oversight or error of judgment
whatsoever, except that the Administrative Agent or such other Person, as the
case may be, may be liable for losses due to its willful misconduct or gross
negligence. Each of the Issuing Bank and the Administrative Agent shall be fully
justified in failing or refusing to take any action under this Credit Agreement
unless it shall first have received such advice or concurrence of the Required
Lenders as they reasonably deem appropriate or it shall first be indemnified to
its reasonable satisfaction by the other Creditor Parties against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Issuing Bank and the Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Credit Agreement in accordance with a request of the Required
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon the Creditor Parties and all future holders of a
Commitment or of a Letter of Credit Participation.
13.4 No Representations.
13.4.1 General. The Administrative Agent shall not be responsible for
the execution or validity or enforceability of this Credit Agreement, the
Letters of Credit, any
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Notes, any of the other Loan Documents or any instrument at any time
constituting, or intended to constitute, collateral security for any of the
Loan Documents, or for the value of any such collateral security or for the
validity, enforceability, or collectibility of any such amounts owing with
respect to any of the Loan Documents, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan
Documents or in any certificate or instrument hereafter furnished to it by
or on behalf of the Borrowers, the Guarantors or any of their respective
Subsidiaries, or be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements herein
or in any instrument at any time constituting, or intended to constitute,
collateral security for any of the Loan Documents or to inspect any of the
properties, books or records of the Borrowers, the Guarantors or any of
their respective Subsidiaries. The Administrative Agent shall not be bound
to ascertain whether any notice, consent, waiver or request delivered to it
by the Borrowers or any Guarantor shall have been duly authorized or is
true, accurate and complete. The Administrative Agent has not made nor does
it now make any representations or warranties, express or implied, nor does
it assume any liability to the Creditor Parties, with respect to the
creditworthiness or financial conditions of the Borrowers, any Guarantor or
any of their Subsidiaries. Each Creditor Party acknowledges that it has,
independently and without reliance upon the Administrative Agent or any
other Creditor Party, and based upon such information and documents as it
has deemed appropriate, made its own credit analysis and decision to enter
into this Credit Agreement, the other Loan Documents and the transactions
contemplated hereby.
13.4.2 Closing Documentation, Etc. For purposes of determining
compliance with the conditions set forth in Section 7, each Creditor Party
that has executed this Credit Agreement shall be deemed to have consented
to, approved or accepted, or to be satisfied with, each document and matter
either sent, or made available, by the Administrative Agent to such
Creditor Party for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Creditor Party.
13.5 Payments.
13.5.1 Payments to Administrative Agent. A payment by the Borrowers to
the Administrative Agent hereunder or under any of the other Loan Documents
for the account of any Creditor Party shall constitute a payment to such
Creditor Party. The Administrative Agent agrees promptly to distribute to
each Creditor Party such Creditor Party's pro rata share of payments
received by the Administrative Agent for the account of such Creditor Party
except as otherwise expressly provided herein or in any of the other Loan
Documents.
13.5.2 Distribution by Administrative Agent. If in the opinion of the
Administrative Agent the distribution of any amount received by it in such
capacity hereunder or under any of the other Loan Documents might expose it
to any liability, it may refrain from making distribution until its right
to make distribution shall have been adjudicated by a court of competent
jurisdiction. If a court of competent jurisdiction shall adjudge that any
amount received and distributed by the Administrative Agent is to be
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repaid, each Person to whom any such distribution shall have been made
shall either repay to the Administrative Agent its proportionate share of
the amount so adjudged to be repaid or shall pay over the same in such
manner and to such Persons as shall be determined by such court.
13.5.3 Delinquent Lenders. Notwithstanding anything to the contrary
contained in this Credit Agreement or any of the other Loan Documents, any
Lender that fails (i) to make available to the Administrative Agent its pro
rata share of any Loan, to acquire its pro rata share of any Swingline
Loan, or to pay any Letter of Credit Participation in accordance with the
terms of this Credit Agreement or (ii) to comply with the provisions of
Section 12 with respect to making dispositions and arrangements with the
other Lenders, where such Lender's share of any payment received, whether
by setoff or otherwise, is in excess of its pro rata share of such payments
due and payable to all of the Lenders, in each case as, when and to the
full extent required by the provisions of this Credit Agreement, shall be
deemed delinquent and shall be deemed a Delinquent Lender (a "Delinquent
Lender") until such time as such delinquency is satisfied. A Delinquent
Lender shall be deemed to have assigned any and all payments due to it from
the Borrowers, whether on account of outstanding Loans, Swingline Loans,
Unpaid Reimbursement Obligations, interest, fees or otherwise, to the
remaining applicable non-delinquent Lenders for application to, and
reduction of, their respective pro rata shares of all outstanding Loans,
Swingline Loans and Unpaid Reimbursement Obligations. The Delinquent Lender
hereby authorizes the Administrative Agent to distribute such payments to
the applicable non-delinquent Lenders in proportion to their respective pro
rata shares of all applicable outstanding Loans, Swingline Loans and Unpaid
Reimbursement Obligations. A Delinquent Lender shall be deemed to have
satisfied in full a delinquency when and if, as a result of application of
the assigned payments to all applicable outstanding Loans, Swingline Loans
and Unpaid Reimbursement Obligations of the non-delinquent Lenders, the
Lenders' respective pro rata shares of all outstanding Loans, Swingline
Loans and Unpaid Reimbursement Obligations have returned to the respective
Revolving Loan Commitment Percentages or Term Loan Commitment Percentages,
as the case may be, of all the Lenders without giving effect to the
nonpayment causing such delinquency.
13.5.4 Indemnity. The Lenders ratably agree hereby to indemnify and
hold harmless the Administrative Agent, the Book Managers and the
Arrangers, and the Revolving Credit Lenders ratably agree hereby to
indemnify and hold harmless the Issuing Bank and the Swingline Lender, from
and against any and all claims, actions and suits (whether groundless or
otherwise), losses, damages, costs, expenses (including any expenses for
which the Administrative Agent, the Issuing Bank, the Swingline Lender, the
Book Managers and/or the Arrangers have not been reimbursed by the
Borrowers as required by Section 14 and indemnifications pursuant to
Section 15), and liabilities of every nature and character arising out of
or related to this Credit Agreement or any of the other Loan Documents or
the transactions contemplated or evidenced hereby or thereby, or the
Administrative Agent's, the Issuing Bank's, the Swingline Lender's, the
Book Managers' or the Arrangers' actions taken hereunder or thereunder,
except to the extent that any of the same shall be paid by or on behalf of
the Borrowers or caused by
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the Administrative Agent's, the Issuing Bank's the Swingline Lender's, the
Book Managers' or the Arrangers' willful misconduct or gross negligence.
13.6 Administrative Agent as Lender and Issuing Bank. In its individual
capacity, Bank of America shall have the same obligations and the same rights,
powers and privileges in respect to its Commitment and the Loans made by it and
as the purchaser of any Letter of Credit Participation as it would have were it
not also the Administrative Agent, Swingline Lender or Issuing Bank.
13.7 Resignation. The Administrative Agent may resign at any time by giving
sixty (60) days prior written notice thereof to the Creditor Parties and the
Borrowers. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Administrative Agent. Unless a Default shall have
occurred and be continuing, such successor Administrative Agent shall be
acceptable to the Borrowers, provided that the Borrowers shall not unreasonably
withhold, condition or delay any such acceptance. If no successor Administrative
Agent shall have been so appointed by the Required Lenders and shall have
accepted such appointment within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Creditor Parties, appoint a successor
Administrative Agent, which shall be a financial institution having a rating of
not less than A by S&P or its equivalent by another nationally recognized rating
agency. Unless a Default shall have occurred and be continuing, such successor
Administrative Agent shall be acceptable to the Borrowers, provided that the
Borrowers shall not unreasonably withhold, condition or delay any such
acceptance. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation, the provisions
of this Credit Agreement and the other Loan Documents shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as Administrative Agent. Any resignation by Bank of America,
as Administrative Agent pursuant to this Section shall also constitute its
resignation as Issuing Bank and Swingline Lender. Upon the acceptance of a
successor's appointment as Administrative Agent hereunder, (a) such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring
Issuing Bank and Swingline Lender shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents, (c) the successor
Issuing Bank shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other
arrangements satisfactory to the retiring Issuing Bank to effectively assume the
obligations of the retiring Issuing Bank with respect to such Letters of Credit,
and (d) the successor Swingline Lender shall advance Swingline Loans to repay
the retiring Swingline Lender to effectively assume the obligations of the
retiring Swingline Lender with respect to such Swingline Loans.
13.8 Notification of Defaults. Each Creditor Party hereby agrees that, upon
learning of the existence of a Default, it shall promptly notify the
Administrative Agent thereof. The Administrative Agent hereby agrees that upon
receipt of any notice under this Section it shall promptly notify the other
Creditor Parties of the existence of such Default.
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13.9 Duties in the Case of Enforcement. In case one or more Events of
Default have occurred and shall be continuing, and whether or not acceleration
of the Obligations and the Maturity Dates shall have occurred, the
Administrative Agent may if it so elects and, shall if (a) so requested by the
Required Lenders and (b) the Lenders have provided to the Administrative Agent
such additional indemnities and assurances against expenses and liabilities as
the Administrative Agent may reasonably request, proceed to enforce the
provisions of the Loan Documents authorizing the sale or other disposition of
all or any part of the Collateral and exercise all or any such other legal and
equitable and other rights or remedies as it may have in respect of such
Collateral. The Required Lenders may direct the Administrative Agent in writing
as to the method and the extent of any such sale or other disposition, the
Lenders hereby agreeing to indemnify and hold the Administrative Agent harmless
from all liabilities incurred in respect of all actions taken or omitted in
accordance with such directions, provided that the Administrative Agent need not
comply with any such direction to the extent that the Administrative Agent
reasonably believes the Administrative Agent's compliance with such direction to
be unlawful or commercially unreasonable in any applicable jurisdiction.
13.10 Administrative Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial, administrative or like proceeding or any assignment for the benefit of
creditors relative to either Borrower, any Guarantor or any of the Pledged
Entities, the Administrative Agent (irrespective of whether the principal of any
Loan or Reimbursement Obligation shall then be due and payable as herein
expressed or by declaration, by operation of the terms of Section 11.2.1, or
otherwise and irrespective of whether the Administrative Agent shall have made
any demand on the Borrower) shall be entitled and empowered, by intervention in
such proceeding, under any such assignment or otherwise:
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans or
Reimbursement Obligations and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Creditor Parties and the
Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and
the Administrative Agent and their respective agents and counsel and
all other amounts due the Creditor Parties and the Administrative
Agent under Sections 5.6, 6.1, and 14) allowed in such proceeding or
under any such assignment; and
(b) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute the same in
accordance with the terms of this Credit Agreement.
Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such proceeding or under any such assignment is hereby
authorized by each Creditor Party to make such payments to the Administrative
Agent and, in the event that the Administrative Agent shall consent to the
making of such payments directly to the Creditor Parties, nevertheless to pay to
the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under Sections
5.6, 6.1, and 14).
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Nothing contained herein shall authorize the Administrative Agent to consent to
or accept or adopt on behalf of any Creditor Party any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations owed to such
Creditor Party or the rights of any Lender or to authorize the Administrative
Agent to vote in respect of the claim of any Lender in any such proceeding or
under any such assignment.
14. EXPENSES.
The Borrowers agree to pay (i) the reasonable costs of producing and reproducing
this Credit Agreement, the other Loan Documents and the other agreements and
instruments mentioned herein, (ii) without duplication of any amounts paid by
the Borrowers pursuant to Section 6.3, any Taxes (including any interest and
penalties in respect thereto) payable by any of the Creditor Parties or the
Arrangers (other than Excluded Taxes) on or with respect to the transactions
contemplated by this Credit Agreement (the Borrowers hereby agreeing to
indemnify the Creditor Parties and the Arrangers with respect thereto), (iii)
the reasonable fees, expenses and disbursements of the Administrative Agent's
counsel or any local counsel to the Administrative Agent incurred in connection
with the preparation, negotiation, execution, delivery, administration or
interpretation of the Loan Documents and other instruments mentioned herein,
each closing hereunder, amendments, modifications, restatements, approvals,
consents or waivers hereto or hereunder, and proposed amendments, modifications,
restatements, approvals, consents or waivers hereto or hereunder, (iv) the
reasonable fees, expenses and disbursements of the Administrative Agent and the
Arrangers incurred by the Administrative Agent and the Arrangers in connection
with the preparation and syndication of the Loan Documents and other instruments
mentioned herein, including, without limitation, collateral examination, legal
fees, appraisal expenses and environmental audits, (v) the reasonable fees,
expenses and disbursements of the Administrative Agent and the Arrangers
incurred by the Administrative Agent and the Arrangers in connection with the
administration or interpretation of the Loan Documents and other instruments
mentioned herein, including, without limitation, collateral examination and
appraisal expenses,(vi) all reasonable out-of-pocket expenses (including without
limitation reasonable attorneys' fees and costs and reasonable consulting,
accounting, appraisal, investment banking and similar professional fees and
charges) incurred by any of the Creditor Parties or the Arrangers in connection
with (A) the enforcement of or preservation of rights under any of the Loan
Documents against any of the Guarantors, the Borrowers or any of their
respective Subsidiaries or the administration thereof after the occurrence of a
Default, and (B) any litigation, proceeding or dispute whether arising hereunder
or otherwise, in any way related to any Creditor Party's or the Arrangers'
relationship with any of the Borrowers, the Guarantors, or any of their
respective Subsidiaries, unless such Creditor Party or either of the Arrangers,
as applicable, is conclusively determined by a final order of a court of
competent jurisdiction to have breached its obligations hereunder, (vii) any
reasonable and customary fees, costs, expenses and bank charges, including bank
charges for returned checks, incurred by any of the Creditor Parties or the
Arrangers or any of their Affiliates in establishing, maintaining or handling of
any accounts for the collection, application or disposition of any of the
Collateral, and (viii) all reasonable fees, expenses and disbursements of the
Creditor Parties or the Arrangers incurred in connection with UCC searches, and
UCC filings. The Borrowers and the Guarantors authorize the Creditor Parties and
the Arrangers to debit any account maintained by either Borrower or a Guarantor,
with a Creditor
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Party or an Arranger or with any of their Affiliates, in payment of amounts due
hereunder. The covenants of this Section shall survive payment or satisfaction
of all other Obligations.
15. INDEMNIFICATION.
The Borrowers and the Guarantors agree jointly and severally to indemnify and
hold harmless the Creditor Parties, the Book Managers and the Arrangers together
with each of their Affiliates and their Related Parties, from and against any
and all claims, actions and suits whether groundless or otherwise, and from and
against any and all liabilities, losses, damages and expenses of every nature
and character arising out of this Credit Agreement or any of the other Loan
Documents or the transactions contemplated hereby including, without limitation,
(i) any actual or proposed use by the Borrowers or any of their Subsidiaries of
the proceeds of any of the Loans or Letters of Credit, (ii) the reversal or
withdrawal of any provisional credits granted by any Creditor Party or the
Arrangers, or any of their Affiliates upon the transfer of funds from bank
agency or lock box accounts or in connection with the provisional honoring of
checks or other items, (iii) the Borrowers, the Guarantors or any of their
respective Subsidiaries entering into or performing this Credit Agreement or any
of the other Loan Documents, (iv) any actual or alleged infringement of any
patent, copyright, trademark, service ▇▇▇▇ or similar right of the Borrowers,
the Guarantors or any of their respective Subsidiaries, or (v) with respect to
the Borrowers, the Guarantors and their respective Subsidiaries and their
respective properties and assets, the violation of any environmental law, the
presence, disposal, escape, seepage, leakage, spillage, discharge, emission,
release or threatened release of any hazardous substances or any action, suit,
proceeding or investigation brought or threatened with respect to any hazardous
substances (including, but not limited to, claims with respect to wrongful
death, personal injury or damage to property), in each case including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such event, circumstances, investigation, litigation or
other proceeding, provided, however, that the Borrowers and Guarantors shall not
be liable to the Creditor Parties or the Arrangers, any of their Affiliates or
any of their Related Parties for any of the foregoing to the extent that they
arise from such Person's gross negligence or willful misconduct as determined by
final order of a court of competent jurisdiction. In litigation, or the
preparation therefor, the Creditor Parties, the Book Managers and the Arrangers
shall be entitled to select their own counsel and, in addition to the foregoing
indemnity, the Borrowers and Guarantors agree to pay promptly the reasonable
fees and expenses of such counsel. If and to the extent that the obligations of
either Borrower or any Guarantor under this Section are unenforceable for any
reason, the Borrowers and Guarantors hereby jointly and severally agree to make
the maximum contribution to the payment in satisfaction of such obligations
which is permissible under applicable law. The covenants contained in this
Section shall survive payment or satisfaction in full of all other Obligations.
Each of the Creditors Parties and the Arrangers agree to promptly notify the
Borrowers of any such claim, action, suit, liability, loss, damage or expense
after becoming aware of the same; provided that the failure to provide such
notice shall not affect the Borrowers' and Guarantors' obligations under this
Section.
16. SURVIVAL OF COVENANTS, JOINT AND SEVERAL OBLIGATIONS, ETC.
16.1 Survival. All covenants, agreements, representations and warranties
made herein, in any of the other Loan Documents or in any documents or other
papers delivered by or
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on behalf of the Borrowers, the Guarantors or any of their respective
Subsidiaries pursuant hereto shall be deemed to have been relied upon by the
Creditor Parties, notwithstanding any investigation heretofore or hereafter made
by any of them, and shall survive the making of any of the Loans and the
issuance, extension or renewal of any Letters of Credit, as herein contemplated,
and shall continue in full force and effect so long as any Letter of Credit or
any Obligation due under this Credit Agreement or any of the other Loan
Documents remains outstanding or any obligation to make any Loans or any
obligation to issue, extend or renew any Letter of Credit, and for such further
time as may be otherwise expressly specified in this Credit Agreement. All
statements contained in any certificate or other paper delivered to any Creditor
Party at any time by or on behalf of the Borrowers, the Guarantors or any of
their respective Subsidiaries pursuant hereto or in connection with the
transactions contemplated hereby shall constitute representations and warranties
by the Borrowers, the Guarantors or such Subsidiary hereunder.
16.2 Joint and Several Obligations. All of the Obligations shall be the
individual, as well as the joint and several, obligation, responsibility,
commitment and liability of each of the Borrowers and the Guarantors.
17. ASSIGNMENT AND PARTICIPATION.
17.1 General Conditions. The provisions of this Credit Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that neither Borrower nor any of
the Guarantors may assign or otherwise transfer any of their respective rights
or obligations hereunder without the prior written consent of the Administrative
Agent and each Lender and no Lender may, and the Swingline Lender may not,
assign or otherwise transfer any of its rights or obligations hereunder except
(a) to an Eligible Assignee in accordance with the provisions of Section 17.2,
(b) by way of participation in accordance with the provisions of Section 17.4 or
(c) by way of pledge or assignment of a security interest subject to the
restrictions of Section 17.6 (and any other attempted assignment or transfer by
any party hereto shall be null and void). Nothing in this Credit Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in Section 17.4 and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Credit Agreement or any of the other Loan Documents.
17.2 Assignments. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Credit
Agreement (including all or a portion of its Revolving Loan Commitment or Term
Loan Commitment, and the Loans at the time owing to it); provided that:
17.2.1 Minimum Assignments. Any Assignment of any Revolving Loan
Commitment shall be for a minimum amount of such Revolving Loan Commitment
of $5,000,000; and any assignment of any Term Loan Commitment shall be for
a minimum amount of such Term Loan Commitment of $1,000,000.
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17.2.2 Deliverables. The parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance
substantially in the form and content of Exhibit 17.2.2 (an "Assignment and
Acceptance"), together with a processing and recordation fee of $3,500, and
the Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire in such substance and
form, and providing such information, as the Administrative Agent may
require from time to time.
17.2.3 Joinder. Subject to acceptance and registering thereof by the
Administrative Agent pursuant to Section 17.3, from and after the effective
date specified in each Assignment and Acceptance, the Eligible Assignee
thereunder shall be a party to this Credit Agreement and, to the extent of
the interest assigned by such Assignment and Acceptance have the rights and
obligations of a Lender, or, if applicable, the Swingline Lender, under
this Credit Agreement, and the assigning Lender or Swingline Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and Acceptance, be released from its obligations as such under this Credit
Agreement (and, in the case of an Assignment and Acceptance covering all of
the assigning Person's rights and obligations under this Credit Agreement,
such Person shall cease to be a party hereto) but shall continue to be
entitled to the benefits of (i) Sections 6.3, 6.8, 6.9 and 6.12 with
respect to facts and circumstances occurring prior to the effective date of
such assignment and (ii) Section 15 notwithstanding such assignment. Any
assignment or transfer by a Lender or the Swingline Lender of rights or
obligations under this Credit Agreement that does not comply with this
paragraph shall be treated for purposes of this Credit Agreement as a sale
by such Person of a participation in such rights and obligations in
accordance with Section 17.4.
17.3 Register; Accounts. The Administrative Agent will maintain at the
Administrative Agent's Office a copy of each Assignment and Acceptance delivered
to it, and Schedule 2 as a register for the recordation of the names and
addresses of the Lenders, the Swingline Lender and the Issuing Bank, and the
Commitments and Commitment Percentages of each Lender. The Administrative Agent
will also maintain accounts reflecting principal amounts of the Revolving Loans
and Term Loan owing to each Lender pursuant to the terms hereof from time to
time, payments made on such Loans and other appropriate debits and credits (the
"Revolving Loan Account" and the "Term Loan Account," respectively and,
collectively with Schedule 2, the "Register"). The Administrative Agent may
unilaterally, from time to time, revise the Register so as to update the
information set forth thereon (including, without limitation, as a result of any
exercise of the Accordion Option pursuant to Section 2.5 and any reductions of
Commitments pursuant to Section 2.6, as well as arising out of the execution and
delivery of any Assignment and Acceptance); and the entries in the Register
shall be conclusive absent manifest error. The Borrowers, the Guarantors, the
Administrative Agent, the Issuing Bank, the Swingline Lender and the Lenders may
treat each Person whose name is recorded as a Lender in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Credit
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers, the Issuing Bank, the Swingline
Lender and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
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17.4 Participations. Any Lender may at any time, without the consent of, or
notice to, either Borrower, any Guarantor, or any of the other Creditor Parties,
sell participations to any Person (other than a natural person) (each, a
"Participant") in all or a portion of such Lender's rights and/or obligations
under this Credit Agreement (including all or a portion of its Commitments
and/or the Loans owing to it); provided that (a) such Lender's obligations under
this Credit Agreement shall remain unchanged, (b) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (c) the Borrowers, the Guarantors and the other Creditor Parties
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Credit Agreement. Any agreement
or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Credit
Agreement and to approve any amendment, modification or waiver of any provision
of this Credit Agreement in accordance with the terms of this Credit Agreement;
provided that such agreement or instrument may provide that, solely as between
such Lender and the Participant, such Lender will not, without the consent of
the Participant, agree to any amendment, modification or waiver that would
reduce the principal of or the interest rate on any Loans, extend the term or
increase the amount of the Commitment of such Lender as it relates to such
Participant, reduce the amount of any Closing Fee or Letter of Credit Fees to
which such Participant is entitled or extend any regularly scheduled payment
date for principal or interest. Subject to Section 17.5, the Borrowers and the
Guarantors agree that each Participant shall be entitled to the benefits of
Sections 6.3, 6.8, 6.9 and 6.12 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to Section 17.2. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 12 as though it were a Lender, provided such Participant agrees to be
subject to Section 12 as though it were a Lender.
17.5 Payments to Participants. A Participant shall not be entitled to
receive any greater payment under Sections 6.3, 6.8, 6.9 and 6.12 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant.
17.6 Miscellaneous Assignment Provisions. A Lender may at any time grant a
security interest in all or any portion of its rights under this Credit
Agreement to secure obligations of such Lender, including without limitation (a)
any pledge or assignment to secure obligations to any of the twelve Federal
Reserve Banks organized under Section 4 of the Federal Reserve Act, 12 U.S.C.
Section 341 and (b) with respect to any Lender that is a Fund, to any lender or
any trustee for, or any other representative of, holders of obligations owed or
securities issued by such Fund as security for such obligations or securities or
any institutional custodian for such Fund or for such lender; provided that no
such grant shall release such Lender from any of its obligations hereunder,
provide any voting rights hereunder to the secured party thereof, substitute any
such secured party for such Lender as a party hereto or affect any rights or
obligations of either Borrower, any Guarantor, the Administrative Agent, the
Swingline Lender or the Issuing Bank hereunder.
17.7 Assignee or Participant Affiliated with CHC. If any assignee Lender is
an Affiliate of either Borrower or any of the Guarantors, then any such assignee
Lender shall have no right to vote as a Lender hereunder or under any of the
other Loan Documents for purposes of granting consents or waivers or for
purposes of agreeing to amendments or other modifications
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to any of the Loan Documents or for purposes of making requests or giving
directions to the Administrative Agent pursuant to Section 11.2.1 or Section 23,
and the determination of the Required Lenders shall for all purposes of this
Credit Agreement and the other Loan Documents be made without regard to such
assignee Lender's interest in any of the Loans or Reimbursement Obligations. If
any Lender sells a participating interest in any of the Loans or Reimbursement
Obligations to a Participant, and such Participant is an Affiliate of either
Borrower or any of the Guarantors, then such transferor Lender shall promptly
notify the Administrative Agent of the sale of such participation. A transferor
Lender shall have no right to vote as a Lender hereunder or under any of the
other Loan Documents for purposes of granting consents or waivers or for
purposes of agreeing to amendments or modifications to any of the Loan Documents
or for purposes of making requests to the Administrative Agent pursuant to
Section 11.2.1 or Section 23 to the extent that such participation is
beneficially owned by either Borrower or any of the Guarantors or any of their
respective Affiliates, and the determination of the Required Lenders shall for
all purposes of this Credit Agreement and the other Loan Documents be made
without regard to the interest of such transferor Lender in the Loans or
Reimbursement Obligations to the extent of such participation.
17.8 Recordation in Register. Upon its receipt of an Assignment and
Acceptance executed by the parties to such assignment, together with a copy of
any Note subject to such assignment, the Administrative Agent shall (a) record
the information contained therein in the Register, and (b) give prompt notice
thereof to the Borrowers and the other Creditor Parties by issuance of an
updated Schedule 2.
18. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all notices and
other communications made or required to be given pursuant to this Credit
Agreement or any Letter of Credit Applications shall be in writing and shall be
(i) delivered in hand, (ii) mailed by United States registered or certified
first class mail, postage prepaid, (iii) sent by overnight courier, or (iv) sent
by telegraph, telecopy, facsimile, email or telex and confirmed by delivery via
courier or postal service, addressed as follows:
if to either Borrower or any of the Guarantors, c/o CHC at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Senior Vice President, facsimile
no. ▇▇▇-▇▇▇-▇▇▇▇, email ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇, or at such other U.S. address for
notice as the Borrowers shall last have furnished in writing to the Person
giving the notice; with a copy to ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇ ▇.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.,
facsimile no. ▇▇▇-▇▇▇-▇▇▇▇, email: ▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇;
if to the Administrative Agent, at One Federal Street, Mail Code: MA5-503-04-16,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President,
facsimile no. ▇▇▇-▇▇▇-▇▇▇▇, email: ▇▇▇▇.▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, with a copy
to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Agency Management, Bank of America, N.A., TX 1-492-14-11, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, facsimile no. ▇▇▇-▇▇▇-▇▇▇▇, e-mail:
▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, or such other address for notice as the
Administrative Agent shall last have furnished in writing to the Person giving
the notice; and
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if to the Issuing Bank, Swingline Lender, or any Lender, at the Issuing Bank's,
Swingline Lender's or such Lender's address for its Domestic Lending Office set
forth on Schedule 2 hereto, or such other address for notice as such Creditor
Party shall have last furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made and to
have become effective (i) if delivered by hand, overnight courier, email or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such email or
facsimile and (ii) if sent by registered or certified first-class mail, postage
prepaid, on the third Business Day following the mailing thereof.
19. GOVERNING LAW; JURISDICTION; VENUE.
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED THEREIN,
EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE STATE OF
NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF SAID STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO
CONFLICTS OR CHOICE OF LAW). EACH OF THE PARTIES HERETO AGREES THAT ANY SUIT FOR
THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY
BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS, THE STATE OF NEW
YORK, OR ANY FEDERAL COURT SITTING THEREIN, AND CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURTS AND SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE
UPON SUCH PARTY BY MAIL AT THE ADDRESS SPECIFIED IN SECTION 18. EACH PARTY
HERETO HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
20. HEADINGS.
The captions in this Credit Agreement are for convenience of reference only and
shall not define or limit the provisions hereof.
21. COUNTERPARTS.
This Credit Agreement and any amendment, modification or restatement hereof may
be executed in several counterparts and by each party on a separate counterpart,
each of which when executed and delivered shall be an original, and all of which
together shall constitute one instrument. In proving this Credit Agreement it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought. Delivery by facsimile by
any of the parties hereto of an executed counterpart hereof or of any amendment,
waiver or restatement hereto shall be as effective as an original executed
counterpart hereof or of such amendment, waiver or restatement and shall be
considered a representation that an original
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executed counterpart hereof or such amendment, waiver or restatement as the case
may be, will be delivered.
22. ENTIRE AGREEMENT, ETC.
22.1 Entire Agreement. The Loan Documents are intended by the parties as
the final, complete and exclusive statement of the transactions evidenced by the
Loan Documents. All prior or contemporaneous promises, agreements and
understandings, whether oral or written, are deemed to be superseded by the Loan
Documents, and no party is relying on any promise, agreement or understanding
not set forth in the Loan Documents.
22.2 Additional Guarantors and Pledged Entities. The Administrative Agent
may unilaterally, from time to time, revise Schedule 1 attached hereto so as to
reflect the addition or removal of Persons from the definition of Guarantors and
Pledged Entities. The Schedule 1 provided by the Administrative Agent from time
to time shall be conclusively presumed to be true, accurate correct, and binding
upon all of the parties hereto, in the absence of manifest error.
23. CONSENTS, AMENDMENTS, WAIVERS, ETC.
23.1 General Rule. Any consent or approval required or permitted by this
Credit Agreement to be given by all of the Lenders may be given, and any term of
this Credit Agreement, the other Loan Documents or any other instrument related
hereto or mentioned herein may be amended, and the performance or observance by
either Borrower, any of the Guarantors or any of their respective Subsidiaries
of any terms of this Credit Agreement, the other Loan Documents or such other
instrument or the continuance of any 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 Required Lenders. Notwithstanding the
foregoing, no consent, approval, amendment, modification or waiver shall:
23.1.1 Affected Lenders. Without the written consent of each Borrower,
each Guarantor and each Lender directly affected thereby:
(a) reduce or forgive the principal amount of any Loans or
Reimbursement Obligations, or reduce the rate of interest on the
Loans or the amount of the Closing Fees or Letter of Credit Fees
(other than interest accruing pursuant to Section 6.13 following
the effective date of any waiver by the Required Lenders of the
Event of Default relating thereto);
(b) increase the amount of the Total Commitment (except upon
the due exercise of the Accordion Option in accordance with the
terms of Section 2.5) or any Lender's Revolving Loan Commitment
or Term Loan Commitment (except upon an assignment in accordance
with the terms of Section 17) or extend the expiration date of
the Total Commitment or any Lender's Revolving Loan Commitment or
Term Loan Commitment;
(c) postpone or extend either the Revolver Maturity Date or
the Term Loan Maturity Date or any other regularly scheduled
dates for payments of
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principal of, or interest on, any portion of the Loans or
Reimbursement Obligations or any fees or other amounts payable to
such Lender or waive any Event of Default relating thereto (it
being understood that (i) a waiver of the application of the
Default Rate, (ii) any vote to accelerate or to rescind any
acceleration made pursuant to Section 11.2.1 of amounts owing
with respect to the Loans and other Obligations and (iii) any
modifications of the provisions relating to amounts or timing of
prepayments of Loans and other Obligations shall require only the
approval of the Required Lenders); or
(d) release the Borrowers from any Obligations consisting of
principal, interest, fees, reimbursement obligations, expenses,
or indemnities, release all or substantially all of the
Collateral or release all or substantially all of the Guarantors
from their guaranty obligations under the Guaranties (excluding,
if either Borrower, any Guarantor or any of their Subsidiaries
becomes a debtor under the federal Bankruptcy Code, the release
of "cash collateral," as defined in Section 363(a) of the federal
Bankruptcy Code pursuant to a cash collateral stipulation with
the debtor approved by the Required Lenders);
23.1.2 All Lenders. Without the written consent of all of the Lenders,
(a) amend or waive this Section or the definition of Required Lenders, or
(b) amend or waive Section 11.4;
23.1.3 Administrative Agent, Issuing Bank and Swingline Lender.
Without the written consent of the Administrative Agent, and, to the extent
affected thereby, the Issuing Bank and the Swingline Lender, amend or waive
Section 2.4, Section 5, Section 13, the amount or time of payment of the
Administrative Agent's Fee or any Letter of Credit Fees payable for the
Administrative Agent's or the Issuing Bank's account or any other provision
applicable to the Administrative Agent, the Issuing Bank or the Swingline
Lender; or
23.1.4 Upon Change in Administrative Agent, Swingline Lender or
Issuing Bank. In the event of any change in the Person acting as the
Administrative Agent, the Issuing Bank or the Swingline Lender hereunder,
without the written consent of the Person formerly acting as such, amend or
waive any provision of this Credit Agreement accruing to the benefit of
such Person in respect of all actions taken or omitted to be taken by
either of them prior to such change.
23.2 Waivers. No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon. No course of dealing or
delay or omission on the part of the Administrative Agent, the Issuing Bank, the
Swingline Lender or any Lender in exercising any right shall operate as a waiver
thereof or otherwise be prejudicial thereto. No notice to or demand upon the
Borrowers or any Guarantor shall entitle such Person to other or further notice
or demand in similar or other circumstances.
23.3 Reasonable Cooperation by Creditor Parties. If and to the extent that
the written consent of the Required Lenders, all of the Lenders, the Swingline
Lenders or the Issuing Bank, respectively, is required to take any of the
actions contemplated by this Section, and the
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Administrative Agent has given such consent, none of the other Creditor Parties
entitled to give or withhold their consent shall unreasonably withhold,
condition or delay its decision regarding the giving of any such consent.
24. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one clause or
provision hereof shall be held invalid or unenforceable in whole or in part in
any jurisdiction under particular circumstances, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction and under such circumstances, and shall not in any manner
affect such clause or provision in any other jurisdiction or other
circumstances, or any other clause or provision of this Credit Agreement in any
jurisdiction. The parties agree that they will negotiate in good faith to
replace any provision hereof so held invalid or unenforceable with a valid
provision which is as similar as possible to the invalid or unenforceable
provision.
25. CONFIDENTIALITY.
25.1 Confidentiality. During such period as any of the Loans remain
outstanding and are not then due and payable and any of the Commitments remain
in effect, and for six months thereafter, each of the Creditor Parties agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates' respective Related Parties in connection with this Credit Agreement
and the transactions contemplated hereby (it being understood that the Persons
to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to
the extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) to the extent required to exercise any remedies
hereunder or under any other Loan Document or to take any action or proceeding
relating to this Credit Agreement or any other Loan Document or the enforcement
of rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee
of or participant in, or any prospective assignee of or participant in, any of
its rights or obligations under this Credit Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to either Borrower or a Guarantor and their respective Obligations, (g)
with the consent of CHC or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to any Creditor Party or any of their respective Affiliates on
a nonconfidential basis from a source other than either Borrower or a Guarantor.
25.2 Definition of Information. For purposes of this Section, "Information"
means all confidential information received from either Borrower or any
Guarantor relating to either Borrower, any Guarantor or any Pledged Entity or
any of their respective businesses, other than any such information that is
available to any Creditor Party or an Affiliate of such Creditor Party on a
nonconfidential basis prior to disclosure by either Borrower, any Guarantor or
any Pledged Entity, or subsequently becomes available on such basis. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
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confidentiality of such Information as such Person would accord to its own
confidential information.
25.3 Compliance Standard. Each of the Creditor Parties acknowledges that
(a) the Information may include material non-public information concerning the
Borrowers, the Guarantors, and their Subsidiaries, as the case may be, (b) it
has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in
accordance with applicable law, including federal and state securities laws. To
the extent practicable and possible in compliance with applicable law,
regulation, proceeding or court order, each of the Creditor Parties shall, prior
to disclosure thereof, notify the Borrowers of any request for disclosure of any
such non-public information by any governmental agency or representative thereof
(other than any such request in connection with an examination of the financial
condition of such Creditor Party by such governmental agency) or pursuant to
legal process.
25.4 Intralinks and Public Lenders. The Borrowers and the Guarantors hereby
acknowledge that (a) the Administrative Agent and/or the Arrangers will make
available to the other Creditor Parties materials and/or information provided by
or on behalf of the Borrowers and the Guarantors hereunder (collectively,
"Borrower Materials") by posting the Borrower Materials on IntraLinks or another
similar electronic system (the "Platform") and (b) certain of the Lenders may be
"public-side" Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Borrowers or their securities) (each,
a "Public Lender"). The Borrowers and the Guarantors hereby agree that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean that
the word "PUBLIC" shall appear prominently on the first page thereof; (x) by
marking Borrower Materials "PUBLIC," the Borrowers and the Guarantors shall be
deemed to have authorized the Creditor Parties and the Arrangers to treat such
Borrower Materials as not containing any material non-public information with
respect to the Borrowers and the Guarantors or their securities for purposes of
United States Federal and state securities laws (provided, however, that to the
extent such Borrower Materials constitute Information, they shall be treated as
set forth in this Section); (y) all Borrower Materials marked "PUBLIC" are
permitted to be made available through a portion of the Platform designated
"Public Investor"; and (z) the Administrative Agent and the Arrangers shall be
entitled to treat any Borrower Materials that are not marked "PUBLIC" as being
suitable only for posting on a portion of the Platform not designated "Public
Investor."
26. USA PATRIOT ACT.
Each Creditor Party hereby notifies the Borrowers that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies each Borrower, which information includes the name
and address of the Borrowers and other information that will allow such Creditor
Party to identify the Borrowers in accordance with the Act.
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27. NO ADVISORY OR FIDUCIARY RESPONSIBILITY.
In connection with all aspects of each transaction contemplated hereby, the
Borrowers and the Guarantors acknowledge and agree, and acknowledge their
respective Affiliates' understanding, that: (i) the Loans provided for hereunder
and any related arranging or other services in connection therewith (including
in connection with any amendment, waiver, restatement or other modification
hereof or of any other Loan Document) are an arm's-length commercial transaction
between the Borrowers, the Guarantors and their respective Affiliates, on the
one hand, and the Administrative Agent and the Arrangers, on the other hand, and
the Borrowers and the Guarantors are each capable of evaluating and
understanding and understand and accept the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents (including any
amendment, waiver, restatement or other modification hereof or thereof); (ii) in
connection with the process leading to such transaction, the Administrative
Agent and each Arranger is and has been acting solely as a principal and is not
the agent, fiduciary, or (other than with respect to investment banking services
provided by UBS to the Borrowers in connection with the ARCap Acquisition (the
"Advisory Services")) financial advisor for the Borrowers, the Guarantors or any
of their respective Affiliates, stockholders, creditors or employees or any
other Person; (iii) neither the Administrative Agent nor the Arrangers have
assumed or will assume an agency, fiduciary, or (except for the Advisory
Services) advisory responsibility in favor of the Borrowers or any Guarantor, or
any of their respective Affiliates, with respect to any of the transactions
contemplated hereby or the process leading thereto, including with respect to
any amendment, restatement, waiver or other modification hereof or of any other
Loan Document (irrespective of whether the Administrative Agent or any Arranger
has advised or is currently advising either Borrower, any Guarantor or any of
their respective Affiliates on other matters) and neither the Administrative
Agent nor the Arrangers have any obligation to either Borrower, any Guarantor or
any of their respective Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other Loan
Documents (or arising out of or relating to the Advisory Services); (iv) the
Administrative Agent and the Arrangers and their respective Affiliates may be
engaged in a broad range of transactions that involve interests that differ from
those of the Borrowers, the Guarantors or their respective Affiliates, and
neither the Administrative Agent nor the Arrangers have any obligation to
disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Administrative Agent and the Arrangers have not
provided and will not provide any legal, accounting, regulatory or tax advice
with respect to any of the transactions contemplated hereby (including any
amendment, waiver, restatement or other modification hereof or of any other Loan
Document) and the Borrowers and the Guarantors have consulted their own legal,
accounting, regulatory and tax advisors to the extent they have deemed
appropriate. Each of the Borrowers and the Guarantors hereby waives and
releases, to the fullest extent permitted by law, any claims that it may have
against the Administrative Agent and the Arrangers with respect to any breach or
alleged breach of agency or fiduciary duty.
28. DESIGNATION OF PERMITTED LIENS.
The designation of a Lien as a Permitted Lien is not, and shall not be deemed to
be, an acknowledgment by any Creditor Party to any Person that the Lien shall
have priority over any
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Lien of the Administrative Agent granted in any Loan Document for the benefit of
the other Creditor Parties.
29. WAIVER OF JURY TRIAL.
EACH PARTY HERETO MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM BASED
HEREON ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS CREDIT AGREEMENT OR ANY
OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER
OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS OR ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY, INCLUDING ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR
ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY LENDER RELATING TO THE ADMINISTRATION
OF THE LOANS OR ENFORCEMENT OF THE LOAN DOCUMENTS AND AGREES THAT IT WILL NOT
SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
CANNOT BE OR HAS NOT BEEN WAIVED. Except as prohibited by law, each party hereto
hereby waives any right it may have to claim or recover in any litigation
referred to in the preceding sentence any special, exemplary, punitive or
consequential damages or any damages other than, or in addition to, actual
damages. Each Borrower and each Guarantor (i) certifies that no representative,
agent or attorney of any Creditor Party has represented, expressly or otherwise,
that such Creditor Party would not, in the event of litigation, seek to enforce
the foregoing waivers and (ii) acknowledges that this waiver constitutes a
material inducement for the Creditor Parties to execute this Credit Agreement
and make the Loans and issue Letters of Credit.
[Signatures Appear on Next Page]
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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.
BORROWERS:
CHARTERMAC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
CHARTER MAC CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
GUARANTORS:
CHARTERMAC CAPITAL COMPANY, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
CHARTERMAC CAPITAL LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
CM ARCAP INVESTORS LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
[Signatures Continue on Next Page]
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CM HOLDING TRUST
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
CM HOLDING TRUST II
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
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ARCAP INVESTORS, L.L.C.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
ARCAP REIT, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
ARCAP SERVICING, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
ARCAP FINANCE CORPORATION
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
[Signatures Continue on Next Page]
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AGENTS, ADMINISTRATIVE AGENT AND
LENDERS:
BANK OF AMERICA, N.A., as an
Agent, as the Administrative
Agent, as the Issuing Bank, as the
Swingline Lender, and as a Lender
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
UBS LOAN FINANCE LLC, as a Lender
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director, Banking
Products Services, US
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Associate Director,
Banking Products
Services, US
UBS SECURITIES LLC, as an Agent
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Director
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