EXHIBIT 10.22
PARTICIPATION AGREEMENT
Dated as of May 9, 2003
among
WEST FACILITIES CORPORATION,
as the Lessee,
WEST CORPORATION AND THE VARIOUS ENTITIES WHICH ARE PARTIES HERETO
FROM TIME TO TIME,
as Guarantors,
WACHOVIA DEVELOPMENT CORPORATION,
as the Borrower and as the Lessor
THE VARIOUS BANKS AND OTHER LENDING INSTITUTIONS WHICH ARE PARTIES HERETO FROM
TIME TO TIME, as the Lenders,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as the Agent for the Primary Financing Parties
and respecting the Security Documents,
as the Agent for the Secured Parties
TABLE OF CONTENTS
PAGE
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SECTION 1. THE FINANCING..................................................................................... 1
SECTION 2. CONTINUATION OF LEASE FACILITY.................................................................... 1
SECTION 3. SUMMARY OF TRANSACTIONS........................................................................... 2
3.1. Operative Agreements........................................................................... 2
3.2. Property Acquisition........................................................................... 2
3.3. Commencement of Basic Rent..................................................................... 3
SECTION 4. THE CLOSING....................................................................................... 3
4.1. Closing Date................................................................................... 3
4.2. Initial Closing Date; Advances................................................................. 3
4.3. INITIAL CLOSING DATE AND PROPERTY CLOSING DATE................................................. 3
SECTION 5. FUNDING OF ADVANCES; CONDITIONS PRECEDENT; THE LESSEE'S DELIVERY OF NOTICES; RESTRICTIONS
ON LIENS; SPECIAL PROVISION REGARDING CREDIT PARTIES.............................................. 4
5.1. General........................................................................................ 4
5.2. Procedures for Funding......................................................................... 4
5.3. Conditions Precedent for the Agent, and the Primary Financing Parties Relating to the Initial
Closing Date and the Advance of Funds for the Acquisition of Properties........................ 5
5.4. Restrictions on Liens.......................................................................... 10
5.5. Payments....................................................................................... 11
5.6. Special Provision Regarding Credit Parties..................................................... 11
5.7. Special Provision Regarding Replacement of Lenders............................................. 12
SECTION 5B. LESSOR ADVANCE.................................................................................... 13
5B.1. Procedure for Lessor Advance................................................................... 13
5B.2. Lessor Yield................................................................................... 13
5B.3. Scheduled Return of Lessor Advance............................................................. 14
5B.4. Early Return of Lessor Advance................................................................. 14
5B.5. Conversion and Continuation Options............................................................ 14
5B.6. Computation of Lessor Yield.................................................................... 15
SECTION 6. REPRESENTATIONS AND WARRANTIES.................................................................... 16
6.1. Representations and Warranties of the Borrower................................................. 16
6.2. Representations and Warranties of the Lessee................................................... 18
6.3 Additional Representations and Warranties of the Credit Parties................................ 24
SECTION 7. PAYMENT OF CERTAIN EXPENSES....................................................................... 29
7.1. Transaction Expenses........................................................................... 29
7.2. Brokers' Fees.................................................................................. 30
7.3. Certain Fees and Expenses...................................................................... 30
7.4. [Reserved]..................................................................................... 30
7.5. Administrative................................................................................. 30
7.6. Upfront Fee.................................................................................... 31
SECTION 8. OTHER COVENANTS AND AGREEMENTS.................................................................... 31
8.1. Cooperation with the Lessee.................................................................... 31
8.2. Covenants of the Lessor........................................................................ 31
8.3. The Lessee Covenants, Consent and Acknowledgment............................................... 32
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8.4. Sharing of Certain Payments........................................................ 35
8.5. Grant of Easements, etc............................................................ 35
8.6. Appointment of the Agent by the Primary Financing Parties.......................... 36
8.7. Collection and Allocation of Payments and Other Amounts............................ 40
8.8. Release of Properties, etc......................................................... 43
8.9. Limitation of Lessor's Obligations................................................. 43
8.10. No Representations or Warranties as to any Property or the Operative
Agreements............................................................... 44
8.11. Reliance; Advice of Counsel........................................................ 44
8.12. Non-Disturbance.................................................................... 45
8.13. Payment of Appraiser Expenses...................................................... 45
SECTION 8A. AFFIRMATIVE COVENANTS OF THE CREDIT PARTIES.......................................... 45
8A.1. Financial Statements............................................................... 45
8A.2. Certificates; Other Information.................................................... 47
8A.3. Payment of Obligations............................................................. 47
8A.4. Conduct of Business and Maintenance of Existence................................... 48
8A.5. Maintenance of GCA Property; Insurance............................................. 48
8A.6. Inspection of Property; Books and Records; Discussions............................. 48
8A.7. Notices............................................................................ 49
8A.8. Environmental Laws................................................................. 50
8A.9. Financial Covenants................................................................ 50
8A.10. Additional Subsidiary Guarantors................................................... 51
8A.11. Compliance with Law................................................................ 51
8A.12. Post-Closing Requirement........................................................... 51
SECTION 8B. NEGATIVE COVENANTS OF THE CREDIT PARTIES............................................. 51
8B.1. Indebtedness....................................................................... 52
8B.2. GCA Liens.......................................................................... 53
8B.3. Nature of Business................................................................. 53
8B.4. Consolidation, Merger, Sale or Purchase of Assets, etc............................. 54
8B.5. Advances, Investments and Loans.................................................... 55
8B.6. Transactions with GCA Affiliates................................................... 55
8B.7. Ownership of Subsidiaries; Restrictions............................................ 55
8B.8. Fiscal Year; Organizational Documents; Material Agreements......................... 55
8B.9. Limitation on Restricted Actions................................................... 56
8B.10. Restricted Payments................................................................ 56
8B.11. Prepayments of Subordinated Indebtedness, etc...................................... 56
8B.12. Sale Leasebacks.................................................................... 56
8B.13. No Further Negative Pledges........................................................ 57
SECTION 9. CREDIT AGREEMENT AND LESSOR ADVANCES................................................. 57
SECTION 10. TRANSFER OF INTEREST................................................................. 58
10.1. Restrictions on Transfer........................................................... 58
10.2. Effect of Transfer................................................................. 59
10.3. Special Transfer by Lessor......................................................... 60
SECTION 11. INDEMNIFICATION...................................................................... 61
11.1. General Indemnity.................................................................. 61
11.2. General Tax Indemnity.............................................................. 63
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11.3. Increased Costs, Illegality, etc................................................... 68
11.4. Funding/Contribution Indemnity..................................................... 69
11.5. EXPRESS INDEMNIFICATION FOR ORDINARY NEGLIGENCE, STRICT LIABILITY, ETC............. 70
11.6. Additional Provisions Regarding Environmental Indemnification...................... 70
SECTION 12. MISCELLANEOUS........................................................................ 71
12.1. Survival of Agreements............................................................. 71
12.2. Notices............................................................................ 71
12.3. Counterparts....................................................................... 72
12.4. Terminations, Amendments, Waivers, Etc.; Unanimous Vote Matters.................... 72
12.5. Headings, etc...................................................................... 75
12.6. Parties in Interest................................................................ 75
12.7. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL; VENUE............. 75
12.8. Severability....................................................................... 76
12.9. Liability Limited.................................................................. 76
12.10. Rights of the Lessee............................................................... 77
12.11. Further Assurances................................................................. 77
12.12. Calculations under Operative Agreements............................................ 78
12.13. Confidentiality.................................................................... 78
12.14. Financial Reporting/Tax Characterization........................................... 79
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SCHEDULES
1 - GCA Permitted Liens - GCA Permitted Lien in Appendix A
2 - Subsidiary Information - Section 6.3(n)
3 - Location of Real Property - Section 6.3(t)
4 - Chief Executive Offices - Section 6.3(t)
5 - Labor Matters - Section 6.3(w)
6 - Indebtedness - Sections 8b.1(b) and 8B.1(i)
EXHIBITS
A - Form of Requisition - Sections 4.2, 5.2 and 5.3
B - Form of Outside Counsel Opinion for the Lessee - Section 5.3(j)
C - Form of Officer's Certificate (Credit Party) - Section 5.3(w)
D - Form of Secretary's Certificate (Credit Party) - Section 5.3(y)
E - Form of Officer's Certificate (Lessor) - Section 5.3(z)
F - Form of Secretary's Certificate (Lessor) - Section 5.3(aa)
G - Form of Credit Party Joinder Agreement - Section 8A.10
Appendix A - Rules of Usage and Definitions
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PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT dated as of May 9, 2003 (as amended,
modified, extended, supplemented, restated and/or replaced from time to time,
this "Agreement") is by and among WEST FACILITIES CORPORATION, a Delaware
corporation (the "Lessee"), WEST CORPORATION, a Delaware corporation and the
various entities which are parties hereto from time to time as guarantors
(individually, a "Guarantor" and collectively, the "Guarantors"), WACHOVIA
DEVELOPMENT CORPORATION, a North Carolina corporation (the "Borrower" or the
"Lessor"); the various banks and other lending institutions which are parties
hereto from time to time as lenders (subject to the definition of Lenders in
Appendix A hereto, individually, a "Lender" and collectively, the "Lenders");
and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as the
agent for the Primary Financing Parties and respecting the Security Documents,
as the agent for the Secured Parties (in such capacity, the "Agent").
Capitalized terms used but not otherwise defined in this Agreement shall have
the meanings set forth in Appendix A hereto, and the rules of usage set forth in
Appendix A hereto shall apply herein.
In consideration of the mutual agreements herein contained and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto hereby agree as follows:
SECTION 11. THE FINANCING.
Subject to the terms and conditions of this Agreement and the other
Operative Agreements and in reliance on the representations and warranties of
each of the parties hereto contained herein or made pursuant hereto, the Primary
Financing Parties have agreed to make the Lessor Advance (in the case of the
Lessor) or make loans pursuant to the Notes (in the case of the Lenders) issued
by the Lessor on the Initial Closing Date, with such Lessor Advance and the
Notes to be in an aggregate principal amount of up to the aggregate amount of
the Commitments in order for the Lessor to acquire, through an assignment of the
Existing Notes and the Existing Holder Certificates and an assumption of the
Trust's obligations under the Existing Operative Agreements, title to or a
ground lease interest in various Properties, as applicable, in accordance with
the terms and provisions hereof and for the other purposes described herein. The
obligations of the Lessor under the Operative Agreements shall be secured by the
Collateral.
SECTION 12. CONTINUATION OF LEASE FACILITY.
Each party hereto agrees that certain of the Operative Agreements
amend, restate and replace certain of the Existing Operative Agreements,
including without limitation, that certain Participation Agreement dated as of
March 12, 2001 (as amended, modified, extended, supplemented, restated and/or
replaced prior to the Initial Closing Date, the "Existing Participation
Agreement") by and among West Facilities Corporation, a Delaware corporation (as
an assignee from West Corporation); Wells Fargo Bank Northwest, National
Association (as
successor to First Security Bank, National Association), a national banking
association, not individually, except as expressly stated therein, but solely as
the owner trustee under the Green Real Estate Trust 2001-1; the various banks
and other lending institutions which are parties thereto from time to time as
holders of certificates issued with respect to the Green Real Estate Trust
2001-1; the various banks and other lending institutions which are parties
thereto from time to time as lenders; and Wachovia Bank, National Association
(as successor to First Union National Bank), a national banking association, as
the agent. Each of the parties agrees that (a) the proceeds of the Loans and the
Lessor Advances shall be used by the Lessor to purchase and receive an
assignment of the notes outstanding pursuant to the Existing Operative
Agreements (the "Existing Notes") and the holder certificates outstanding
pursuant to the Existing Operative Agreements (the "Existing Holder
Certificates"), (b) the Lenders under the Operative Agreements shall receive
Notes pursuant to the terms and conditions of the Operative Agreements and the
obligations owing to the Lessor with respect to the Lessor Advances shall be
evidenced by Section 5B of this Agreement and pursuant to the terms and
conditions of the Operative Agreements, and (c) certain of the Operative
Agreements shall replace certain of the Existing Operative Agreements. In
accordance with the Operative Agreements, the parties to this Agreement agree
that the Lessor is permitted to (i) acquire the beneficial interest in the Trust
through an assignment of the Existing Notes and the Existing Holder Certificates
and an assumption of the Trust's obligations under the Existing Operative
Agreements, (ii) take all necessary action to evidence the Lessor's ownership of
the Properties or the Lessor's ground lease interest in the Properties, as
applicable and (iii) enter into and perform its obligations pursuant to the
Assignment and Recharacterization Agreement. Those Existing Operative Agreements
which are not amended, restated and replaced shall automatically and without
further action, be terminated.
SECTION 13 SUMMARY OF TRANSACTIONS.
13.1. OPERATIVE AGREEMENTS.
On the date hereof, each of the respective parties hereto and thereto
shall execute and deliver this Agreement, the Lease, each applicable Ground
Lease, the Credit Agreement, the Notes, the Security Agreement, each applicable
Mortgage Instrument and such other documents, instruments, certificates and
opinions of counsel as agreed to by the parties hereto.
13.2. PROPERTY ACQUISITION.
On each Property Closing Date and subject to the terms and conditions
of this Agreement (a) the Lenders will each make Loans in accordance with
Section 5 of this Agreement and the terms and provisions of the Credit
Agreement, (b) the Lessor will make a Lessor Advance in accordance with Sections
5 and 5B of this Agreement, (c) the Lessor shall acquire, through an assignment
of the Existing Notes and the Existing Holder Certificates and an assumption of
the Trust's obligations under the Existing Operative Agreements, title to or a
ground lease interest in each applicable Property, each to be within an Approved
State, identified by the Lessee, in each case pursuant to a Deed, Bill of Sale
or Ground Lease, as the case may be, and grant the Agent a lien on such Property
by execution of the required Security Documents, (d) the Agent, the Lessee
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and the Lessor shall execute and deliver a Lease Supplement relating to each
such Property acquired as of such Property Closing Date and (e) the Term shall
commence with respect to each such Property. Unless the context otherwise
requires, references in the Operative Agreements to the acquisition of a
Property (including without limitation a ground lease interest in a Property) by
the Lessor shall be deemed to refer to the acquisition of title to such Property
or the acquisition of a ground lease interest therein through an assignment of
the Existing Notes and the Existing Holder Certificates and an assumption of the
Trust's obligations under the Existing Operative Agreements.
13.3. COMMENCEMENT OF BASIC RENT.
As to any particular Property, the Lessee shall commence to pay Basic
Rent as of the Property Closing Date for such Property.
SECTION 14. THE CLOSING.
14.1. CLOSING DATE.
All documents and instruments required to be delivered on the Closing
Date shall be delivered at the offices of Moore & Van Allen PLLC, Charlotte,
North Carolina, or at such other location as may be determined by the Lessor,
the Agent and the Lessee.
14.2. INITIAL CLOSING DATE; ADVANCES.
The Lessee shall deliver to the Agent a requisition (a "Requisition"),
in the form attached hereto as EXHIBIT A or in such other form as is
satisfactory to the Agent, in its reasonable discretion, in connection with (a)
the Transaction Expenses payable by the Lessor pursuant to Section 7.1 and (b)
the Advances.
14.3. INITIAL CLOSING DATE AND PROPERTY CLOSING DATE.
EACH OF THE PARTIES HERETO AGREES THAT NOTWITHSTANDING ANY OTHER
PROVISION OF ANY OPERATIVE AGREEMENT (A) THE ONLY PROPERTY CLOSING DATE IS
INTENDED TO AND SHALL OCCUR ON THE INITIAL CLOSING DATE, (B) THE COMMITMENTS
EXPIRE AT 11:59 P.M., CHARLOTTE, NORTH CAROLINA TIME ON THE INITIAL CLOSING
DATE, (C) NO ADVANCES SHALL BE MADE AFTER THE INITIAL CLOSING DATE AND (D) THE
PROVISIONS OF THIS SECTION 4.3 ARE CONSISTENT WITH THE INTENT OF EACH PARTY
HERETO AND WERE SPECIFICALLY REVIEWED, NEGOTIATED AND ACCEPTED BY EACH PARTY
HERETO.
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SECTION 15. FUNDING OF ADVANCES; CONDITIONS PRECEDENT; THE LESSEE'S DELIVERY OF
NOTICES; RESTRICTIONS ON LIENS; SPECIAL PROVISION REGARDING CREDIT PARTIES.
15.1. GENERAL.
To the extent funds have been made available to the Lessor pursuant to
Section 5 and by the Lessor pursuant to Sections 5 and 5B, the Lessor will use
such funds from time to time in accordance with the terms and conditions of this
Agreement and the other Operative Agreements for the following purposes: (i) at
the direction of the Lessee to acquire, through an assignment of the Existing
Notes and the Existing Holder Certificates and an assumption of the Trust's
obligations under the Existing Operative Agreements, title to or a ground lease
interest in various Properties in accordance with the terms of this Agreement
and the other Operative Agreements and (ii) to pay Transaction Expenses payable
by the Lessor under Section 7.1.
5.2. PROCEDURES FOR FUNDING.
(a) The only Advances shall occur on the Initial Closing
Date. Not less than three (3) Business Days prior to the Initial
Closing Date or three (3) Business Days prior to the date on which any
Advance is to be made, as applicable, the Lessee shall deliver to the
Agent a Requisition as described in Section 4.2; provided, however,
that if the Requisition is delivered less than three (3) Business Days
prior to the Initial Closing Date and the Agent, in its discretion,
accepts such Requisition the requirement that the Requisition be
delivered at least three (3) Business Days prior to the Initial Closing
Date shall be deemed waived.
(b) Each Requisition shall: (i) be irrevocable, (ii)
request Loans not in excess of the total aggregate of the Available
Lender Commitments, (iii) request Lessor Advances not in excess of the
total aggregate of the Available Lessor Commitments and (iv) request
that the Lenders make Loans and the Lessor make Lessor Advances for the
payment of Transaction Expenses and Property Acquisition Costs that
have previously been incurred or are to be incurred on the date of such
Advance to the extent such were not subject to a prior Requisition, in
each case as specified in the Requisition.
(c) Subject to the satisfaction of the conditions
precedent set forth in Section 5.3, on the Initial Closing Date and on
each Property Closing Date, (i) the Lenders shall make Loans based on
their respective Lender Commitments in an aggregate amount equal to
twenty-five percent (25%) of the Requested Funds specified in any
Requisition, up to an aggregate principal amount equal to the aggregate
of the Available Lender Commitments, and (ii) the Lessor shall make a
Lessor Advance based on its Lessor Commitment in an amount such that
the aggregate of all Lessor Advances at such time shall be seventy-five
percent (75%) of the balance of the Requested Funds specified in such
Requisition, up to the aggregate advanced amount equal to the aggregate
of the Available Lessor Commitments.
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(d) If a Requisition is submitted for an Advance and such
Advance is not expended on behalf of the Lessor for the purposes
specified in such Requisition on the date of such Advance, such Advance
shall be held by the Agent until the applicable date for expenditure
thereof, or, if such date does not occur within three (3) Business Days
of the date of the Agent's receipt of such Advance, shall be applied
regarding the applicable Advance to repay the Lenders and the Lessor
and, subject to the terms hereof and of the Credit Agreement, shall
remain available for future Advances. Any such amounts held by the
Agent shall be subject to the lien of the Security Documents and shall
accrue interest and Lessor Yield from the date any such amount is
advanced to the Agent until the date repaid to the Lenders and the
Lessor, as applicable.
(e) All Operative Agreements which are to be delivered to
the Agent or the Primary Financing Parties shall be delivered to the
Agent on behalf of the Agent or the Primary Financing Parties and such
items (except for Notes, Bills of Sale, Deeds, the Ground Leases and
chattel paper originals, with respect to which in each case there shall
be only one original) shall be delivered with originals sufficient for
the Agent and each Primary Financing Party. All other items which are
to be delivered to the Agent or the Primary Financing Parties shall be
delivered to the Agent, on behalf of the Agent or the Primary Financing
Parties, or directly to such party as required by the Operative
Agreements. To the extent any such other items delivered by the Agent
are requested in writing from time to time by any Primary Financing
Party or are required to be delivered by the Agent pursuant to Section
8.6(g), the Agent shall provide a copy of such item to the party
requesting it or to the parties entitled thereto, as applicable.
(f) Notwithstanding the completion of any closing under
this Agreement pursuant to Section 5.3, each condition precedent in
connection with any such closing may be subsequently enforced as a
covenant obligation of the Lessee by the Agent (unless such has been
expressly waived in writing by the Agent).
5.3. CONDITIONS PRECEDENT FOR THE AGENT, AND THE PRIMARY FINANCING
PARTIES RELATING TO THE INITIAL CLOSING DATE AND THE ADVANCE
OF FUNDS FOR THE ACQUISITION OF PROPERTIES.
The obligations (i) on the Initial Closing Date of the Lessee, the
Agent and the Primary Financing Parties to enter into the transactions
contemplated by this Agreement, including without limitation the obligation to
execute and deliver the applicable Operative Agreements to which each is a party
on the Initial Closing Date, and (ii) on the Initial Closing Date of the Lessor
to make a Lessor Advance and of the Lenders to make Loans in order to pay
Transaction Expenses payable by the Lessor pursuant to Section 7.1(a), and (iii)
on a Property Closing Date of the Lessor to make a Lessor Advance and of the
Lenders to make Loans for the purpose of providing funds to the Lessor necessary
to pay the Transaction Expenses and to acquire a Property on such Property
Closing Date, if applicable (each of the foregoing (ii) or (iii), an "Advance"),
in each case are subject to the satisfaction or waiver of each of the following
conditions precedent on or prior to the Initial Closing Date or the applicable
Property Closing Date, as the case may be (to the extent such conditions
precedent require the delivery of any agreement, certificate, instrument,
memorandum, legal or other opinion, appraisal, commitment,
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title insurance commitment, lien report or any other document of any kind or
type, such shall be in form and substance satisfactory to the Agent, in its
reasonable discretion; notwithstanding the foregoing, the obligations of each
party shall not be subject to any conditions contained in this Section 5.3 which
are required to be performed by such party):
(a) the correctness of the representations and warranties
of the parties to this Agreement contained herein, in each of the other
Operative Agreements and each certificate delivered pursuant to any
Operative Agreement;
(b) (i) the performance by the parties to this Agreement
of their respective agreements contained herein and in the other
Operative Agreements to be performed by them on or prior to such date;
(c) the Agent shall have received a fully executed
counterpart copy of the Requisition, appropriately completed;
(d) with respect to a Property Closing Date only, title
to each such Property shall conform to the representations and
warranties set forth in Section 6.2(l) hereof;
(e) with respect to a Property Closing Date only, the
Lessee shall have delivered to the Agent a good standing certificate
for the Lessee in the state where the Property is located, the Deed
with respect to the Land and Improvements (if any), a copy of the
Ground Lease (if any) and a copy of the Bill of Sale with respect to
the Equipment, respecting such of the foregoing as are being acquired
or ground leased on such date;
(f) there shall not have occurred and be continuing any
Default or Event of Default and no Default or Event of Default will
have occurred after giving effect to the Advance;
(g) with respect to a Property Closing Date only, the
Lessee shall have delivered to the Agent title insurance commitments to
issue policies insuring the Lien of the Mortgage Instrument up to the
amount of the Notes and the Lessor Advance respecting each Property
being acquired or ground leased on such Property Closing Date, with
such endorsements as the Agent deems reasonably necessary, in favor of
the Lessor and the Agent from a title insurance company reasonably
acceptable to the Agent, but only with such title exceptions thereto as
are reasonably acceptable to the Agent;
(h) with respect to a Property Closing Date only, the
Lessee shall have delivered to the Agent an environmental site
assessment respecting each Property being acquired on such Property
Closing Date, prepared by an independent recognized professional
reasonably acceptable to the Agent and evidencing no pre-existing
environmental condition with respect to which there is more than a
remote risk of loss;
(i) with respect to a Property Closing Date only, the
Lessee shall have delivered to the Agent an ALTA survey (with a flood
hazard certification) respecting each Property being acquired on such
Property Closing Date prepared by (i) an
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independent recognized professional reasonably acceptable to the Agent
and (ii) in a manner and including such information as is reasonably
required by the Agent;
(j) with respect to a Property Closing Date only, the
Lessee shall have caused to be delivered to the Agent a legal opinion
in the form attached hereto as EXHIBIT B or in such other form as is
reasonably acceptable to the Agent with respect to local law real
property issues respecting the state in which each Property being
acquired on such Property Closing Date is located addressed to the
Agent, from counsel located in the state where each such Property is
located, prepared by counsel reasonably acceptable to the Agent;
(k) with respect to a Property Closing Date only, the
Agent shall be satisfied that the acquisition, ground leasing and/or
holding of each such Property being acquired on such Property Closing
Date and the execution of the Mortgage Instruments and the other
Security Documents will not materially and adversely affect the rights
of the Agent or the Primary Financing Parties under or with respect to
the Operative Agreements;
(l) the Lessee shall have delivered to the Agent invoices
for, or other reasonably satisfactory evidence of, the various
Transaction Expenses and other fees, expenses and disbursements
referenced in Section 7 of this Agreement, as appropriate;
(m) with respect to a Property Closing Date only, the
Lessee shall have caused to be delivered to the Agent Mortgage
Instruments (in such form as is reasonably acceptable to the Agent,
with revisions as necessary to conform to applicable state law), Lessor
Financing Statements and Lender Financing Statements respecting each
Property being acquired on such Property Closing Date, all fully
executed and in recordable form;
(n) with respect to a Property Closing Date only, the
Lessee shall have delivered to the Agent with respect to each Property
being acquired on such Property Closing Date a Lease Supplement and a
memorandum (or short form lease) regarding the Lease and such Lease
Supplement (such memorandum or short form lease to be in the form
attached to the Lease as Exhibit B or in such other form as is
reasonably acceptable to the Agent, with modifications as necessary to
conform to applicable state law, and in form suitable for recording);
(o) with respect to each Advance, the sum of the
Available Lender Commitment plus the Available Lessor Commitment will
be sufficient to pay all amounts payable therefrom;
(p) with respect to a Property Closing Date only, if any
such Property is subject to a Ground Lease, the Lessee shall have
caused a lease memorandum (or short form lease) to be delivered to the
Agent for such Ground Lease and, if requested by the Agent, a landlord
waiver and a mortgagee waiver (in each case, in such form as is
reasonably acceptable to the Agent);
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(q) with respect to a Property Closing Date only, counsel
(reasonably acceptable to the Agent) for the ground lessor (to the
extent the ground lessor is an Affiliate of the Lessee) of each such
Property subject to a Ground Lease shall have issued to the Agent, its
opinion (in form and substance reasonably satisfactory to the Agent);
(r) with the respect to a Property Closing Date only, the
Lessee shall have provided evidence of insurance to the Agent with
respect to each Property being acquired on such Property Closing Date
as provided in the Lease;
(s) with respect to a Property Closing Date only, the
Lessee shall have caused an Appraisal regarding each Property being
acquired on such Property Closing Date to be provided to the Agent from
an appraiser reasonably satisfactory to the Agent;
(t) all taxes, fees and other charges in connection with
the execution, delivery, recording, filing and registration of the
Operative Agreements and/or documents related thereto shall have been
paid or provisions for such payment shall have been made to the
satisfaction of the Agent;
(u) in the opinion of the Agent and its counsel, the
transactions contemplated by the Operative Agreements do not and will
not subject the Primary Financing Parties or the Agent to any
materially adverse regulatory prohibitions, constraints, penalties or
fines;
(v) each of the Operative Agreements to be entered into
on such date shall have been duly authorized, executed and delivered by
the parties thereto, and shall be in full force and effect, and the
Agent shall have received a fully executed copy of each of the
Operative Agreements;
(w) as of the Initial Closing Date only, the Agent shall have
received an Officer's Certificate, dated as of the Initial Closing
Date, of the Lessee in the form attached hereto as EXHIBIT C or in such
other form as is reasonably acceptable to the Agent stating that (i)
each and every representation and warranty of any Credit Party
contained in the Operative Agreements to which it is a party is true
and correct on and as of the Initial Closing Date; (ii) no Default
(other than any Credit Agreement Default) or Event of Default (other
than any Credit Agreement Event of Default) has occurred and is
continuing under any Operative Agreement; (iii) each Operative
Agreement to which any Credit Party is a party is in full force and
effect with respect to it except as the same may be limited by
applicable bankruptcy, insolvency, fraudulent transfer or conveyance,
reorganization, moratorium or other similar laws relating to or
affecting creditors' or lessors' rights generally and general
principles of equity; and (iv) each Credit Party has duly performed and
complied with all covenants, agreements and conditions contained herein
or in any Operative Agreement required to be performed or complied with
by it on or prior to the Initial Closing Date;
(x) since the date of the most recent audited financial
statements of the Parent (which have been previously delivered to the
Agent), there shall not have occurred any
8
event, condition or state of facts which shall have or could reasonably
be expected to have a Material Adverse Effect, other than as
specifically contemplated by the Operative Agreements;
(y) as of the Initial Closing Date only, the Agent shall
have received (i) a certificate of the Secretary or an Assistant
Secretary of the Lessee, dated as of the Initial Closing Date, in the
form attached hereto as EXHIBIT D or in such other form as is
reasonably acceptable to the Agent attaching and certifying as to (1)
the resolutions of the Board of Directors of the Lessee duly
authorizing the execution, delivery and performance by the Lessee of
each of the Operative Agreements to which it is or will be a party, (2)
the certificate of incorporation of the Lessee certified as of a recent
date by the Secretary of State of its state of incorporation and its
by-laws and (3) the incumbency and signature of persons authorized to
execute and deliver on behalf of the Lessee the Operative Agreements to
which it is or will be a party and (ii) a good standing certificate (or
local equivalent) from the appropriate office of the respective states
where the Lessee is incorporated and where the principal place of
business of the Lessee is located as to its good standing in each such
state. The Lessee shall cause a similar certificate to be delivered by
each Guarantor to the Agent as of the Initial Closing Date;
(z) as of the Initial Closing Date only, the Agent, shall
have received an Officer's Certificate of the Lessor dated as of the
Initial Closing Date in the form attached hereto as EXHIBIT E or in
such other form as is reasonably acceptable to the Agent, stating that
(i) each and every representation and warranty of the Lessor contained
in the Operative Agreements to which it is a party is true and correct
on and as of the Initial Closing Date, (ii) each Operative Agreement to
which the Lessor is a party is in full force and effect with respect to
it except as the same may be limited by applicable bankruptcy,
insolvency, fraudulent transfer or conveyance, reorganization,
moratorium or other similar laws relating to or affecting creditors' or
lessors' rights generally and general principles of equity; (iii) the
Lessor has duly performed and complied with all covenants, agreements
and conditions contained herein or in any Operative Agreement required
to be performed or complied with by it on or prior to the Initial
Closing Date and (iv) no Credit Agreement Default or Credit Agreement
Event of Default attributable solely to Lessor has occurred and is
continuing under any Operative Agreement;
(aa) as of the Initial Closing Date only, the Agent shall
have received (i) a certificate of the Secretary or an Assistant
Secretary of the Lessor, dated as of the Initial Closing Date in the
form attached hereto as EXHIBIT F or in such other form as is
reasonably acceptable to the Agent attaching and certifying as to (A)
the signing resolutions duly authorizing the execution, delivery and
performance by the Lessor of each of the Operative Agreements to which
it is or will be a party, (B) its articles of incorporation or other
equivalent charter documents as certified by the Secretary of State of
its state of incorporation and its by-laws, as the case may be,
certified as of a recent date by an appropriate officer of the Lessor
and (C) the incumbency and signature of persons authorized to execute
and deliver on its behalf the Operative Agreements to which it is a
party and (ii) a good standing certificate from the appropriate
governmental
9
authority in the jurisdiction of the Lessor's organization and the
jurisdiction of the Lessor's principal place of business;
(bb) as of the Initial Closing Date only, counsel for the
Lessor reasonably acceptable to the Agent shall have issued to the
Primary Financing Parties (other than the Lessor), the Lessee and the
Agent its opinion dated as of the Initial Closing Date in such form as
is reasonably acceptable to the Agent;
(cc) as of the Initial Closing Date only, counsel for the
Lessee reasonably acceptable to the Agent shall have issued to the
Primary Financing Parties and the Agent its opinion dated as of the
Initial Closing Date in such form as is reasonably acceptable to the
Agent; provided, however, that if the Initial Closing Date and the
Property Closing Date occur simultaneously, the opinion required by
this Section 5.3(cc) and the opinion required by Section 5.3(j) may be
combined into a single legal opinion, provided such legal opinion
satisfies both Sections 5.3(j) and 5.3(cc);
(dd) with respect to a Property Closing Date only, no
Casualty and no Condemnation respecting any Property to be acquired or
ground leased on such Property Closing Date shall have occurred and no
action shall be pending or threatened by a Governmental Authority to
initiate a Condemnation with respect to any such Property; and
(ee) the Lessee shall cause (i) Uniform Commercial Code
lien searches, tax lien searches and judgment lien searches regarding
each Credit Party and the Lessor to be conducted (and copies thereof to
be delivered to the Agent) in such jurisdictions as determined by the
Agent by a nationally recognized search company reasonably acceptable
to the Agent and (ii) the liens referenced in such lien searches which
are objectionable to the Agent to be either removed or otherwise
handled in a manner reasonably satisfactory to the Agent.
15.4. RESTRICTIONS ON LIENS.
On each Property Closing Date, the Lessee shall cause each Property
acquired by the Lessor on such date to be free and clear of all Liens except
those referenced in Sections 6.2(r)(i) and 6.2(r)(ii), such other Liens that are
expressly set forth as title exceptions on the title commitment or policy issued
under Section 5.3(g) with respect to such Property, Liens for Taxes that are not
yet due and payable and such other Liens that have been expressly approved or
agreed to by the Agent. On the date any Property is either sold to a third party
(other than the Lessee or any Affiliate or designee of the Lessee) in accordance
with the terms of the Operative Agreements or, pursuant to Section 22.1(a) of
the Lease Agreement, retained by the Lessor, the Lessee shall cause such
Property to be free and clear of all Liens (other than Lessor Liens, such other
Liens that are expressly set forth as title exceptions on the title commitment
or policy issued under Section 5.3(g) with respect to such Property, to the
extent such title commitment has been approved by the Agent, Liens for Taxes
that are not yet due and payable and such other Liens that have been expressly
approved or agreed to by the Agent).
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15.5. PAYMENTS.
All payments of Rent, and other amounts payable to any Financing Party
to be made by the Lessee under this Agreement or any other Operative Agreement
(excluding Excepted Payments and Supplemental Rent which shall be paid directly
to the party to whom such payments are owed) shall be made to the Agent at the
office designated by the Agent from time to time by written notice as provided
herein in Dollars and in immediately available funds, without setoff, deduction,
or counterclaim. Subject to the definition of "Interest Period" in Appendix A
attached hereto, whenever any payment under this Agreement or any other
Operative Agreement shall be stated to be due on a day that is not a Business
Day, such payment may be made on the next succeeding Business Day, and such
extension of time in such case shall be included in the computation of interest,
Lessor Yield and fees payable pursuant to the Operative Agreements, as
applicable and as the case may be.
15.6. SPECIAL PROVISION REGARDING CREDIT PARTIES.
It is the express intent of each of the parties hereto that the group
of Credit Parties under the Operative Agreements and the group consisting of the
borrower and guarantors under the Guarantor Credit Agreement contain the same
members in each group while the facilities contemplated by the Operative
Agreements and the GCA Credit Documents are outstanding. As a result, certain
Subsidiaries of the Credit Parties will join the Operative Agreements from time
to time in accordance with Section 8A.10 and pursuant to this Section 5.6
certain of the Credit Parties (other than the Parent and the Lessee) may be
released from the Operative Agreements pursuant to the terms and conditions set
forth in this Section 5.6. Provided no Lease Default, Lease Event of Default or
Guaranty Event of Default has occurred and is continuing, if (a) the Guarantor
Credit Agreement is terminated and not replaced by any other facility and so
long as none of the Parent, the Lessee or any other Subsidiary, direct or
indirect, of the Parent has outstanding any Indebtedness or any facility with
commitments to provide Indebtedness in excess of one hundred million dollars
($100,000,000) (other than the amounts outstanding pursuant to the Operative
Agreements and subordinated Indebtedness, which shall be expressly subordinated,
to the satisfaction of the Primary Financing Parties, to the transactions and
payment of the Credit Party obligations contemplated by the Operative
Agreements) or (b) the GCA Lenders release any GCA Credit Party other than the
Parent or the Lessee from all of the GCA Credit Party Obligations, all of such
GCA Credit Party's obligations owing to the GCA Lenders in the GCA Credit
Documents, all GCA Liens on any property or interest of any GCA Credit Party in
favor or for the benefit of the GCA Lenders and the Guarantor Credit Agreement
have not been terminated, restated or replaced, then, with respect to (a) above,
upon written request of the Parent and the Lessee or with respect to (b) above,
upon the later of (y) the effectiveness of such release under the Guarantor
Credit Agreement and (z) delivery to the Agent, for the benefit of the Primary
Financing Parties, of the same consideration and benefit including without
limitation, amendments or modifications to the GCA Credit Documents or otherwise
(including without limitation restatement or replacement facilities) which are
favorable to the GCA Lenders, fees, increased pricing or other amounts paid to
the GCA Lenders or collateral pledged to or for the benefit of the GCA Lenders;
then such Credit Parties (in all cases other than the Parent and the Lessee)
shall be deemed released from the Guaranteed Obligations under the Operative
Agreements and the Financing Parties shall upon written request of the
11
Parent and the Lessee provide written confirmation of such release in form and
substance acceptable to such Financing Parties. Immediately upon such release,
such released Credit Party shall no longer be a Credit Party to the Operative
Agreements and all provisions related to the Credit Parties shall, from and
after the effectiveness of such release, no longer include such released party.
In the case of (a), above, in addition to the release of the applicable Credit
Parties, the covenants in Section 8B shall no longer apply (provided, terms
defined therein or sections referenced in other provisions shall continue) to
any Credit Party after such time, provided, the Parent, the Lessee and their
Subsidiaries do not have any Indebtedness in excess of one hundred million
dollars ($100,000,000) (other than the amounts outstanding pursuant to the
Operative Agreements and subordinated Indebtedness, which shall be expressly
subordinated, to the satisfaction of the Primary Financing Parties, to the
transactions and payment of the Credit Party obligations contemplated by the
Operative Agreements) outstanding at any time during the Term. In the event the
Parent, the Lessee or any of their Subsidiaries has any Indebtedness in excess
of one hundred million dollars ($100,000,000) (other than the amounts
outstanding pursuant to the Operative Agreements and subordinated Indebtedness,
which shall be expressly subordinated, to the satisfaction of the Primary
Financing Parties, to the transactions and payment of the Credit Party
obligations contemplated by the Operative Agreements) outstanding during the
Term, then Section 8B of the Participation Agreement shall automatically be
reinstated and such provisions shall have full force and effect from such date
through the Expiration Date and the Parent and the Lessee shall promptly, but in
any event within thirty (30) days of incurring such Indebtedness, cause each of
the parties which were previously Credit Parties (or their successors) to join
the Operative Agreements as Guarantors and provide an executed Joinder Agreement
from each such party and other documentation as reasonably requested by any
Primary Financing Party (including without limitation documents executed by each
Credit Party satisfactory to the Primary Financing Parties evidencing the
reinstatement of Section 8B of the Participation Agreement, provided, such
Section 8B shall be automatically reinstated regardless of whether such
documents are executed). Notwithstanding the foregoing, no Property, Collateral,
Security Document, other Operative Agreement or any other Credit Party (except,
with respect to other Credit Parties, as expressly provided herein) shall be
released hereby and such released Credit Parties shall not be released from:
(aa) any obligations which were due and owing prior to the effectiveness of such
release, (bb) any of the indemnity provisions of the Operative Agreements,
including without limitation Section 11 of the Participation Agreement or (cc)
any other provision of any Operative Agreement which by its terms continues
after the release of a Credit Party or after the termination of the Operative
Agreements.
15.7. SPECIAL PROVISION REGARDING REPLACEMENT OF LENDERS.
In the event a Lender does not consent to (or is deemed to have
rejected) a Renewal Term proposed by Lessee in accordance with Section 2.2 of
the Lease, the Lessee shall have the right to replace such a Lender as a party
to this Agreement and the other relevant Operative Agreements, the Lessee may,
upon notice to such Lender and the Agent, replace such Lender by causing such
Lender to assign its Lender Commitment, if any, and its Loan (with the
assignment fee to be paid by the Lessee in such instance) pursuant to Section 10
hereof and Sections 9.7 and 9.8 of the Credit Agreement and the other applicable
terms and conditions in the Operative Agreements to one or more other Lenders or
eligible assignees procured by the Lessee. To the
12
extent not paid by the replacement Lender, the Lessee shall (a) pay in full all
principal, interest, fees and other amounts owing to such Lender through the
date of replacement, (b) provide appropriate assurances and indemnities as each
replaced Lender may reasonably require with respect to the Operative Agreements,
and (c) release such Lender from its obligations under the Operative Agreements.
Any Lender being replaced and the replacement Lenders shall execute and deliver
an Assignment and Acceptance in the form of Exhibit B to the Credit Agreement
and take actions to comply with Section 10 hereof and Sections 9.7 and 9.8 of
the Credit Agreement and the other applicable terms and conditions in the
Operative Agreements.
SECTION 5B. LESSOR ADVANCE.
5B.1. PROCEDURE FOR LESSOR ADVANCE.
(a) Upon receipt from Lessee by the Agent of a
Requisition pursuant to Section 4.2, and subject to the terms and
conditions of this Agreement, the Lessor shall make an Advance under
the Lessor Commitment equal to seventy-five percent (75%) of the amount
requested in such Requisition on the applicable Closing Date. The
Lessor Advance shall be based on the Eurodollar Rate or the ABR, as
designated by the Lessee in the Requisition.
(b) Subject to Section 9 of this Participation Agreement,
the extent that the Borrower shall have elected to terminate or reduce
the amount of the Lender Commitments pursuant to Section 2.5(a) of the
Credit Agreement, a pro rata election shall be deemed to have been made
with respect to the Lessor Commitments. On any date on which the Lender
Commitments shall be reduced to zero (0) as a result of a Credit
Agreement Event of Default, the Lessor Commitments shall automatically
be reduced to zero (0), and the Lessee shall prepay the Lessor Advances
in full, together with accrued but unpaid Lessor Yield thereon and
subject to Section 17.12 of the Lease, all other amounts owing to the
Lessor under the Operative Agreements.
5B.2. LESSOR YIELD.
(a) The Lessor Advance shall bear yield calculated at the
rate of Lessor Yield applicable from time to time. The Lessee shall pay
as Basic Rent to the Agent for distribution to the Lessor the Lessor
Yield in arrears on each Scheduled Interest Payment Date or as
otherwise provided herein or in Section 8.7 of this Agreement.
(b) If all or a portion of Lessor Yield shall not be
received by the Lessor (or the Agent on behalf of the Lessor) when due
(whether at the stated maturity, by acceleration or otherwise), such
overdue amount shall, without limiting the rights of the Lessor
hereunder or under any other Operative Agreement, bear interest at the
Lessor Overdue Rate, in each case from the date of nonpayment until
paid (whether after or before judgment) and shall be paid upon demand.
Upon the occurrence and during the continuation of any Event of
Default, Lessor Yield shall be calculated at the Lessor Overdue Rate.
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5B.3. SCHEDULED RETURN OF LESSOR ADVANCE.
The outstanding amount of the Lessor Advance shall be due in
full on the Expiration Date. On the Expiration Date, subject to the
terms of this Agreement, the Lessor (or the Agent on behalf of the
Lessor) shall receive from the Lessee as Basic Rent under the Lease the
outstanding amount of the Lessor Advance then due, together with all
accrued but unpaid Lessor Yield and all other amounts due to Lessor
under the Operative Agreements.
5B.4. EARLY RETURN OF LESSOR ADVANCE.
(a) Subject to Sections 11.2(e), 11.3 and 11.4 of this
Agreement, the Lessor Advance may at any time and from time to time be
prepaid by the Lessee as a payment of Supplemental Rent, in whole or in
part, without premium or penalty, upon at least three (3) Business
Days' irrevocable notice to the Agent, on behalf of the Lessor,
specifying the date and amount of prepayment of the Lessor Advance.
Upon receipt of such notice, the Agent shall promptly notify the Lessor
thereof. If such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein. Amounts prepaid
shall not be re-advanced.
(b) If on any date the Agent or the Lessor shall receive any
payment in respect of (i) any Casualty, Condemnation or Environmental
Violation pursuant to Sections 15.1(a) or 15.1(g) or Article XVI of the
Lease (excluding any payments in respect thereof which are payable to
Lessee in accordance with the Lease), or (ii) the Termination Value of
any Property in connection with the delivery of a Termination Notice
pursuant to Article XVI of the Lease, or (iii) the Termination Value of
any Property or such other applicable amount in connection with the
exercise of a Purchase Option under Article XX of the Lease or the
exercise of the option of the Lessor to transfer the Properties to the
Lessee pursuant to Section 20.3 of the Lease, then in each case, the
Agent or the Lessor shall receive such payment to be distributed in
accordance with Section 8.7(b) of this Agreement.
(c) Each prepayment of the Lessor Advances pursuant to Section
5B.4(a) shall be allocated to reduce the Property Cost of each Property
ratably based on the then current Property Cost of each Property
immediately before giving effect to such prepayment. Each prepayment of
the Lessor Advances pursuant to Section 5B.4(b) shall be allocated to
reduce the Property Cost of the affected Property immediately before
giving effect to such prepayment.
5B.5. CONVERSION AND CONTINUATION OPTIONS.
(a) Subject to Section 9 of the Participation Agreement, the
Borrower may elect from time to time to convert Eurodollar Lessor
Advances to ABR Lessor Advances by giving the Lessor at least three (3)
Business Days' prior irrevocable notice of such election, provided,
that any such conversion may only be made on the last day of an
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Interest Period with respect thereto, and provided, further, to the
extent an Event of Default has occurred and is continuing on the last
day of any such Interest Period, the applicable Eurodollar Lessor
Advances shall automatically be converted to ABR Lessor Advances.
Subject to Section 9 of the Participation Agreement, the Borrower may
elect from time to time to convert ABR Lessor Advances to Eurodollar
Lessor Advances by giving the Lessor at least three (3) Business Days'
prior irrevocable notice of such election. All or any part of
outstanding Lessor Advance may be converted as provided herein,
provided, that (i) no ABR Lessor Advance may be converted into a
Eurodollar Lessor Advance after the date that is one (1) month prior to
the Expiration Date and (ii) such notice of conversion regarding any
Eurodollar Lessor Advance shall contain an election by the Lessee of an
Interest Period for such Eurodollar Lessor Advance to be created by
such conversion and such Interest Period shall be in accordance with
the terms of the definition of the term "Interest Period" including
without limitation subparagraphs (A) through (D) thereof.
(b) Any Eurodollar Lessor Advance may be continued as such
upon the expiration of the then current Interest Period with respect
thereto by the Lessee giving irrevocable notice to the Lessor, in
accordance with the applicable notice provision for the conversion of
ABR Lessor Advances to Eurodollar Lessor Advances set forth herein,
provided, that no Eurodollar Lessor Advance may be continued as such
after the date that is one (1) month prior to the Expiration Date,
provided, further, no Eurodollar Lessor Advance may be continued as
such if an Event of Default has occurred and is continuing as of the
last day of the Interest Period for such Eurodollar Lessor Advance, and
provided, further, that if the Lessee shall fail to give any required
notice as described above or otherwise herein, then if no Event of
Default has occurred and is continuing as of the last day of the
Interest Period such Eurodollar Lessor Advance shall be continued as a
Eurodollar Lessor Advance at the end of such Interest Period for an
Interest Period of equal duration to the immediately preceding Interest
Period, provided, further, if any continuation is not permitted
pursuant to the preceding provisos, such Eurodollar Lessor Advance
shall automatically be converted to an ABR Lessor Advance on the last
day of such then expiring Interest Period.
5B.6. COMPUTATION OF LESSOR YIELD.
(a) Lessor Yield shall be calculated on the basis of a year of
three hundred sixty (360) days for the actual days elapsed. Any change
in the Lessor Yield resulting from a change in the Eurodollar Reserve
Percentage shall become effective as of the opening of business on the
day on which such change becomes effective.
(b) Pursuant to Section 12.12 of this Agreement, the
calculation of Lessor Yield under this Section 5B.6 shall be made by
the Agent. Each determination of Lessor Yield by the Agent shall be
conclusive and binding in the absence of manifest error.
(c) If the Eurodollar Rate cannot be determined by the Agent
in the manner specified in the definition of the term "Eurodollar
Rate", then commencing on the Scheduled Interest Payment Date next
occurring and continuing until such time as the
15
Eurodollar Rate can be determined by the Agent in the manner specified
in the definition of such term, the outstanding Lessor Advance shall
bear a yield at the ABR.
SECTION 16. REPRESENTATIONS AND WARRANTIES.
16.1. REPRESENTATIONS AND WARRANTIES OF THE BORROWER.
The Borrower represents and warrants to each of the other parties
hereto that as of each Closing Date (except to the extent any such
representation or warranty relates to an earlier date):
(a) It is a corporation duly organized and validly
existing and in good standing under the laws of the State of North
Carolina, is qualified to do business in each jurisdiction necessary to
permit the Borrower to own and lease the Properties and perform its
obligations under each of the Operative Agreements and has the power
and authority to enter into and perform its obligations under each of
the Operative Agreements to which it is or will be a party and each
other agreement, instrument and document to be executed and delivered
by it on or before such Closing Date in connection with or as
contemplated by each such Operative Agreement to which the Borrower is
or will be a party, and is a multi-purpose, Wholly-Owned Entity of
Wachovia Corporation;
(b) The execution, delivery and performance of each
Operative Agreement to which it is or will be a party has been duly
authorized by all necessary action on its part and neither the
execution and delivery thereof, nor the consummation of the
transactions contemplated thereby, nor compliance by it with any of the
terms and provisions thereof (i) does or will require any approval or
consent of any trustee or holders of any of its indebtedness or
obligations or any other consent or approval that has not previously
been obtained, (ii) does or will contravene any Legal Requirement,
(iii) does or will contravene or result in any breach of or constitute
any default under, or result in the creation of any Lien upon any of
its property under, (A) its charter or by-laws, or (B) any indenture,
mortgage, chattel mortgage, deed of trust, conditional sales contract,
bank loan or credit agreement or other agreement or instrument to which
it is a party or by which it or its properties may be bound or
affected, which contravention, breach, default or Lien under clause (B)
could reasonably be expected to materially and adversely affect its
ability to perform its obligations under the Operative Agreements to
which it is a party or would question the validity or enforceability of
any of the Operative Agreements to which it is or will become a party
or (iv) does or will require any Governmental Action by any
Governmental Authority;
(c) Each Operative Agreement to which the Borrower is or
will be a party have been, or on or before such Closing Date will be,
duly executed and delivered by the Borrower, and each Operative
Agreement to which the Borrower is a party constitutes, or upon
execution and delivery will constitute, a legal, valid and binding
obligation enforceable against the Borrower in accordance with the
terms thereof;
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(d) There is no action or proceeding pending or, to its
knowledge, threatened to which it is or will be a party before any
Governmental Authority that, if adversely determined, would materially
and adversely affect its ability to perform its obligations under the
Operative Agreements to which it is a party or would question the
validity or enforceability of any of the Operative Agreements to which
it is or will become a party;
(e) The Borrower has not assigned or transferred any of
its right, title or interest in or under the Lease or its interest in
any Property or any portion thereof, except in accordance with the
Operative Agreements;
(f) No Default or Event of Default under the Operative
Agreements attributable to it has occurred and is continuing;
(g) Except as otherwise contemplated in the Operative
Agreements, the proceeds of the Advances shall not be applied by the
Borrower for any purpose other than the purchase and/or lease of the
Properties or to pay Transaction Expenses, payable by the Lessor under
Section 7.1 of this Agreement;
(h) Neither the Borrower nor any Person authorized by the
Borrower to act on its behalf has offered or sold any interest in the
Borrower's Interest or the Notes, or in any similar security relating
to the Properties, or in any security the offering of which for the
purposes of the Securities Act would be deemed to be part of the same
offering as the offering of the aforementioned securities to, or
solicited any offer to acquire any of the same from, any Person other
than, in the case of the Notes, the Agent and the Lenders and neither
the Borrower nor any Person authorized by the Borrower to act on its
behalf will take any action which would subject, as a direct result of
such action alone, the issuance or sale of any interest in the
Borrower's Interest or the Notes to the provisions of Section 5 of the
Securities Act or require the qualification of any Operative Agreement
under the Trust Indenture Act of 1939, as amended;
(i) The location of the Borrower for purposes of the UCC
is North Carolina. The Borrower's principal place of business, chief
executive office and office where the documents, accounts and records
relating to the transactions contemplated by this Agreement and each
other Operative Agreement are kept are located at One Wachovia Center,
301 South College Street, Charlotte, North Carolina 28288;
(j) The Borrower is not engaged principally in, and does
not have as one (1) of its important activities, the business of
extending credit for the purpose of purchasing or carrying any margin
stock (within the meaning of Regulation U), and no part of the proceeds
of the sale of the Notes or the Lessor Advance will be used by it to
purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any such margin stock or for any
purpose that violates, or is inconsistent with, the provisions of
Regulations T, U, or X;
(k) The Borrower is not an "investment company" or a company
controlled by an "investment company" within the meaning of the
Investment Company Act;
17
(l) Each Property is free and clear of all Lessor Liens
attributable to the Lessor, and the execution, delivery and performance
by the Lessor of this Agreement or any other Operative Agreement to
which Lessor is a party will not subject any of the Properties, or any
portion thereof, to any Lessor Lien (other than those created by or
pursuant to the Operative Agreements);
(m) The Borrower's true legal name as registered in the
jurisdiction of its organization is "Wachovia Development Corporation"
and its Federal Employer Identification Number is 56-1610288. During
the five (5) year period immediately prior to the Initial Closing Date,
the true legal name of the Borrower has not been other than "Wachovia
Development Corporation" or "First Union Development Corporation". The
Borrower does not use, or transact and has not used, or transacted
within the five (5) years immediately prior to the Initial Closing Date
any business under, any trade name other than its current or prior
legal name referenced in the preceding sentence;
(n) The Borrower has filed all tax returns and all other
material reports that are required under applicable Law to be filed by
it and has paid all taxes or other charges of any Governmental
Authority due pursuant to such returns or other reports, except for any
taxes or other charges that are being diligently contested in good
faith by appropriate proceedings and for which adequate reserves have
been set aside on the books and records of the Borrower;
(o) The unaudited balance sheet of the Borrower as of
March 31, 2003, copies of which have been delivered to the Agent, and
to the Lessee, fairly present, in conformity with sound accounting
principles, the financial condition of the Borrower on such date;
(p) Since March 31, 2003, there has been no event, act,
condition or occurrence having a material adverse effect upon the
financial condition, operations, performance or properties, in the
aggregate, of the Borrower, or the ability of the Borrower to perform
in any material respect its obligations under the Operative Agreements;
and
(q) To the Borrower's knowledge, the facts disclosed in
the applicable letter from the Borrower to the Lessee regarding certain
matters of the Borrower (including Attachment C thereto, but excluding
Attachments A and B thereto), substantially in the form of mutually
agreed upon by the Borrower and the Lessee on or prior the Initial
Closing Date, were (as of the date referenced therein) true, correct
and complete in all material respects.
16.2. REPRESENTATIONS AND WARRANTIES OF THE LESSEE.
Lessee represents and warrants to each of the other parties hereto that
as of each Closing Date (except to the extent that any such representation or
warranty relates to an earlier date):
18
(a) [RESERVED];
(b) (i) Each of the Lessee and its Subsidiaries is a
corporation duly organized and validly existing and in good
standing under the laws of the state of its formation and the
Lessee has the power and authority to enter into and perform
its obligations under the Operative Agreements to which it is
a party and has the corporate power and authority to act as
the Lessee, and to enter into and perform the obligations
under each of the other Operative Agreements to which it is a
party or will be a party and each other agreement, instrument
and document to be executed and delivered by it on or before
such date in connection with or as contemplated by each such
Operative Agreement to which it is a party or will be a party;
(ii) The execution and delivery by the Lessee of
this Agreement and the other applicable Operative Agreements
as of such date and the performance by the Lessee of its
obligations under this Agreement and the other applicable
Operative Agreements are within the corporate powers of
Lessee, have been duly authorized by all necessary corporate
action on the part of the Lessee (including without limitation
any necessary shareholder action), have been duly executed and
delivered, have received all necessary governmental approval,
and do not and will not (A) violate any Legal Requirement
which is binding on the Lessee or any of its Subsidiaries, (B)
contravene or conflict with, or result in a breach of, any
provision of the Restated Certificate of Incorporation,
Restated By-Laws or other organizational documents of the
Lessee or any of its Subsidiaries or of any agreement,
indenture, instrument or other document which is binding on
the Lessee or any of its Subsidiaries or (C) result in, or
require, the creation or imposition of any Lien (other than
pursuant to the terms of the Operative Agreements) on any
asset of the Lessee or any of its Subsidiaries;
(c) This Agreement and the other applicable Operative
Agreements to which the Lessee is a party, executed prior to and as of
such date, constitute the legal, valid and binding obligation of the
Lessee enforceable against the Lessee in accordance with their terms.
The Lessee has executed the various Operative Agreements required to be
executed as of such date;
(d) There are no material actions, suits or proceedings
pending or, to our knowledge, threatened against the Lessee in any
court or before any Governmental Authority (nor shall any order,
judgment or decree have been issued or proposed to be issued by any
Governmental Authority to set aside, restrain, enjoin or prevent the
full performance of any Operative Agreement or any transaction
contemplated thereby) that (i) concern any Property or the Lessee's
interest therein, (ii) question the validity or enforceability of any
Operative Agreement or any transaction described in the Operative
Agreements or (iii) shall have or could reasonably be expected to have
a Material Adverse Effect;
19
(e) No Governmental Action by any Governmental Authority
or other authorization, registration, consent, approval, waiver, notice
or other action by, to or of any other Person pursuant to any Legal
Requirement, contract, indenture, instrument or agreement or for any
other reason is required to authorize or is required in connection with
(i) the execution, delivery or performance of any Operative Agreement,
(ii) the legality, validity, binding effect or enforceability of any
Operative Agreement, (iii) the acquisition, ownership, construction,
completion, occupancy, operation, leasing or subleasing of any Property
or (iv) any Advance, in each case, except those which have been
obtained and are in full force and effect;
(f) Upon the execution and delivery of each Lease
Supplement to the Lease, (i) the Lessee will have unconditionally
accepted the Property subject to the Lease Supplement and will have a
valid and subsisting leasehold interest in such Property, subject only
to the Permitted Liens, and (ii) no offset will exist with respect to
any Rent or other sums payable under the Lease;
(g) Except as otherwise contemplated by the Operative
Agreements, the Lessee shall not use the proceeds of any Lessor Advance
or Loan for any purpose other than the purchase and/or lease of the
Properties, the acquisition, installation and testing of the Equipment,
the construction of Improvements and the payment of Transaction
Expenses referenced in Sections 7.1(a) and 7.1(b) of this Agreement
with respect to a particular Property;
(h) All information heretofore or contemporaneously
herewith furnished by the Parent or any of its Subsidiaries to the
Agent or any Primary Financing Party for purposes of or in connection
with this Agreement and the transactions contemplated hereby is, and
all information hereafter furnished by or on behalf of the Lessee or
any of its Subsidiaries to the Agent or any Primary Financing Party
pursuant hereto or in connection herewith will be, true and accurate in
every material respect on the date as of which such information is
dated or certified, and such information, taken as a whole, does not
and will not omit to state any material fact necessary to make such
information, taken as a whole, not misleading;
(i) The location of the Lessee for purposes of the UCC is
Delaware. The principal place of business, chief executive office and
office of the Lessee where the documents, accounts and records relating
to the transactions contemplated by this Agreement and each other
Operative Agreement are kept are located at 11808 Miracle Hills Drive,
Omaha, Douglas County, Nebraska 68154;
(j) The representations and warranties of the Lessee set
forth in any of the Operative Agreements are true and correct in all
material respects on and as of each such date as if made on and as of
such date. The Lessee is in all material respects in compliance with
its obligations under the Operative Agreements and there exists no
Default or Event of Default under any of the Operative Agreements which
is continuing and which has not been cured within any cure period
expressly granted under the terms of the applicable Operative Agreement
or otherwise waived in accordance with the
20
applicable Operative Agreement. No Default or Event of Default will
occur under any of the Operative Agreements as a result of, or after
giving effect to, the Advance requested by the Requisition on the date
of each Advance;
(k) Each Property to be financed consists of Land and
existing Improvements thereon which Improvements are suitable for
occupancy at the time of acquisition or ground leasing. Each Property
to be financed is located at the location set forth on the applicable
Requisition, each of which is in one (1) of the Approved States;
(l) The Lessor has good and marketable fee simple title
to each Property, or, if any Property is the subject of a Ground Lease,
the Lessor has a valid ground leasehold interest enforceable against
the ground lessor of such Property in accordance with the terms of such
Ground Lease, subject only to (i) such Liens referenced in Sections
6.2(r)(i) and 6.2(r)(ii) on the applicable Closing Date respecting each
such Property and (ii) Permitted Liens after the Closing Date;
(m) No portion of any Property is located in an area
identified as a special flood hazard area by the Federal Emergency
Management Agency or other applicable agency, or if any such Property
is located in an area identified as a special flood hazard area by the
Federal Emergency Management Agency or other applicable agency, then
flood insurance has been obtained for such Property in accordance with
Section 14.2(b) of the Lease and in accordance with the National Flood
Insurance Act of 1968, as amended;
(n) Each Property complies with all Insurance
Requirements and all standards of Lessee with respect to similar
properties owned by Lessee;
(o) Each Property complies with all Legal Requirements as
of such date (including without limitation all zoning and land use laws
and Environmental Laws), except to the extent that failure to comply
therewith, individually or in the aggregate, shall not have and could
not reasonably be expected to have a Material Adverse Effect;
(p) All utility services and facilities necessary for the
operation of the Improvements and the operation of the Equipment
regarding each Property (including without limitation gas, electrical,
water and sewage services and facilities) are available at the
applicable Land;
(q) Acquisition, installation and testing of the
Equipment and construction of the Improvements have been performed in a
good and workmanlike manner;
(r) (i) The Security Documents create, as security
for the Obligations (as such term is defined in the Security
Agreement), valid and enforceable security interests in, and
Liens on, all of the Collateral, in favor of the Agent, for
the ratable benefit of the Secured Parties, as their
respective interests appear in the Operative Agreements, and
such security interests and Liens are subject to no other
Liens other than Permitted Liens. Upon recordation of the
Mortgage
21
Instrument in the real estate recording office in the
applicable Approved State identified by the Lessee, the Lien
created by the Mortgage Instrument in the real property
described therein shall be a perfected first priority mortgage
Lien, subject to no Liens other than Permitted Liens, on such
real property (or, in the case of a Ground Lease, the
leasehold estate under such Ground Lease) in favor of the
Agent, for the ratable benefit of the Secured Parties, as
their respective interests appear in the Operative Agreements.
To the extent that the security interests in the portion of
the Collateral comprised of personal property can be perfected
by filing in the filing offices in the applicable Approved
States or elsewhere identified by the Lessee, upon filing of
the Lender Financing Statements in such filing offices, the
security interests created by the Security Agreement shall be
perfected first priority security interests, subject to no
Liens other than Permitted Liens, in such personal property in
favor of the Agent, for the ratable benefit of the Secured
Parties, as their respective interests appear in the Operative
Agreements;
(ii) The Lease Agreement, together with the
applicable Lease Supplement, creates, as security for the
obligations of the Lessee under the Lease Agreement, valid and
enforceable security interests in, and Liens on, each Property
leased thereunder, in favor of the Lessor, and such security
interests and Liens are subject to no other Liens other than
Permitted Liens. Upon recordation of the memorandum of the
Lease Agreement and the memorandum of a Ground Lease (or, in
either case, a short form lease) in the real estate recording
office in the applicable Approved State identified by the
Lessee, the Lien created by the Lease Agreement in the real
property described therein shall be a perfected first priority
mortgage Lien, subject to no Liens other than Permitted Liens,
on such real property (or, in the case of a Ground Lease, on
the leasehold estate under such Ground Lease) in favor of the
Agent, for the ratable benefit of the Secured Parties, as
their respective interests appear in the Operative Agreements.
To the extent that the security interests in the portion of
any Property comprised of personal property can be perfected
by the filing in the filing offices in the applicable Approved
State or elsewhere identified by the Lessee upon filing of the
Lessor Financing Statements in such filing offices, a security
interest created by the Lease Agreement shall be perfected
first priority security interests, subject to no Liens other
than Permitted Liens, in such personal property in favor of
the Lessor, which rights pursuant to the Lessor Financing
Statements are assigned to the Agent, for the ratable benefit
of the Secured Parties, as their respective interests appear
in the Operative Agreements;
(s) Each Property has been improved in a good and
workmanlike manner and is operational;
(t) Each Property has been acquired or ground leased pursuant
to a Ground Lease at a price that is not in excess of fair market value
or fair market rental value, as the case may be;
22
(u) [RESERVED];
(v) All Material Licenses that are required have been
obtained or exist and are in full force and effect.
(w) All Financial Statements furnished to the Primary
Financing Parties or the Agent by any Credit Party are complete and
correct, have been prepared in accordance with GAAP and fairly reflect
the financial condition and results of the operations of the Credit
Party and their related entities represented therein as of the dates
and for the periods stated therein;
(x) Since the date of the most recent Financial
Statements delivered to any of the Financing Parties, there has been no
change which could have a Material Adverse Effect;
(y) [RESERVED];
(z) Neither the Lessee nor any Subsidiary thereof has any
guaranties outstanding other than pursuant to the Guarantor Credit
Agreement and the Operative Agreements, nor will the Lessee or any
Subsidiary thereof enter into any guaranties, for the obligations of
any non-Subsidiary third parties;
(aa) Each of the Lessee and its Subsidiaries has filed or
caused to be filed all tax reports and returns required to be filed by
each of them with any Governmental Authority, except where extensions
have been properly obtained and have paid or made adequate provision
for the payment of all taxes, assessments, fees and other charges by
any Governmental Authority which are due and payable, except such
taxes, assessments, fees and other charges, if any, as are being
diligently contested in good faith by appropriate proceedings and as to
which the Lessee or any Subsidiary thereof has established adequate
reserves in conformity with GAAP on the books of the Lessee or any
Subsidiary thereof. No Lien for any such taxes, assessments, fees or
other charges has been filed, and no claims are being asserted with
respect to any such taxes, assessments, fees or other charges which, if
adversely determined, could reasonably be expected to have a Material
Adverse Effect;
(bb) None of the Operative Agreements or the Financial
Statements, or any statement, list, certificate or other information
furnished or to be furnished by the Lessee or any Subsidiary thereof to
the Financing Party in connection with the Operative Agreements or any
of the transactions contemplated thereby, contains or will contain any
untrue statement of a material fact or omits or will omit to state a
material fact necessary to make the statements contained therein, in
light of the circumstances in which they are made, not misleading. Each
of the Lessee and each Subsidiary thereof has affirmatively disclosed
to the Financing Parties all circumstances regarding its business,
operations, property, financial condition or business prospects that
are likely to have a Material Adverse Effect;
23
(cc) [RESERVED]; and
(dd) The true legal name of the Lessee as registered in
the jurisdiction of its organization is and has been for at least five
(5) years or, if less, since its formation "West Facilities
Corporation" and its Federal Employer Identification number is
36-4516927. The Lesser does not use or transact, and has not used or
transacted within the five (5) years immediately prior to the Initial
Closing Date or, if less, since its formation, any business under any
trade name other than its legal name.
6.3 ADDITIONAL REPRESENTATIONS AND WARRANTIES OF THE CREDIT
PARTIES.
To induce the Primary Financing Parties to enter into the Operative
Agreements and to make the Loans and the Lessor Advance contemplated by the
Operative Agreements, the Credit Parties hereby represent and warrant to the
Agent and to each Primary Financing Party that:
(a) The Lessee or the Parent has heretofore delivered to
the Primary Financing Parties, at the Primary Financing Parties'
request, the following financial statements and information: (a)
audited consolidated financial statements of the Parent and its
subsidiaries for the fiscal years 2000, 2001 and 2002, consisting of
balance sheets and the related consolidated and consolidating
statements of income, stockholders' equity and cash flows for such
period, (b) audited consolidated financial statements of the Acquired
Company and its subsidiaries for the fiscal years 2000 and 2001 (and,
with respect to the subsidiaries of the Acquired Company, for the
fiscal year 2002), consisting of balance sheets and the related
consolidated and consolidating statements of income, stockholders'
equity and cash flows for such period, (c) unaudited consolidated
financial statements of the Parent and its subsidiaries through the
most recently available quarterly period ending prior to the Closing
Date, consisting of a balance sheet and the related consolidated and
consolidating statements of income, stockholders' equity and cash flows
for the period ending on such date, (d) a pro forma consolidated
balance sheet of the Parent and its subsidiaries as of March 31, 2003
and (e) four-year projections for the Parent and its subsidiaries, all
in form and substance satisfactory to the Agent and certified by the
chief financial officer of the Parent that they fairly present the
financial condition of the Parent and its subsidiaries as of the dates
indicated and that (i) with respect to the audited and unaudited
financial statements, the results of their operations and their cash
flows for the periods indicated, subject to changes resulting from
audit and normal year-end adjustments, and (ii) with respect to the pro
forma balance sheet and the projections, were prepared in good faith
based upon reasonable assumptions;
(b) Since December 31, 2002 (and after delivery of annual
audited financial statements in accordance with Section 8A.1(a), from
the date of the most recently delivered annual audited financial
statements), there has been no change which could reasonably be
expected to have a GCA Material Adverse Effect;
(c) Each of the Credit Parties is in compliance with all
Requirements of Law except to the extent that the failure to comply
therewith could not, in the aggregate, reasonably be expected to have a
GCA Material Adverse Effect;
24
(d) There are no material actions, suits or proceedings
pending or, to our knowledge, threatened against any Credit Party in
any court or before any Governmental Authority (nor shall any order,
judgment or decree have been issued or proposed to be issued by any
Governmental Authority to set aside, restrain, enjoin or prevent the
full performance of any Operative Agreement or any transaction
contemplated thereby) that (i) concern any GCA Property or a Credit
Party's interest therein, (ii) question the validity or enforceability
of any Operative Agreement or any transaction described in the
Operative Agreements or (iii) could reasonably be expected to have a
material adverse effect on (A) the business of the Parent and its GCA
Subsidiaries taken as a whole or (B) the ability of the Parent or any
other Credit Party to perform its obligations, when such obligations
are required to be performed, under this Participation Agreement, or
any of the other Operative Agreements;
(e) Neither the Parent nor any other Credit Party is an
"investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as
amended. Neither the Parent nor any other Credit Party is a subject to
regulation under the Public Utility Holding Company Act of 1935, as
amended, the Federal Power Act, the Interstate Commerce Act, or any
federal or state statute or regulation limiting its ability to incur
the Credit Party obligations or the obligations of any Credit Party
under the Operative Agreements;
(f) No part of the proceeds of any Loan or Lessor Advance
hereunder will be used directly or indirectly for any purpose which
violates, or which would be inconsistent with, the provisions of
Regulation T, U or X of the Board of Governors of the Federal Reserve
System as now and from time to time hereafter in effect. The Parent and
the GCA Subsidiaries taken as a group do not own "margin stock" except
as identified in the financial statements referred to in Section 6.3(a)
and the aggregate value of all "margin stock" owned by the Parent and
the GCA Subsidiaries taken as a group does not exceed 25% of the value
of their assets;
(g) Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or
Section 302 of ERISA) has occurred during the five-year period prior to
the date on which this representation is made or deemed made with
respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code, except
to the extent that any such occurrence or failure to comply would not
reasonably be expected to have a GCA Material Adverse Effect. No
termination of a Single Employer Plan has occurred resulting in any
liability that has remained underfunded, and no GCA Lien in favor of
the PBGC or a Plan has arisen, during such five-year period which could
reasonably be expected to have a GCA Material Adverse Effect. The
present value of all accrued benefits under each Single Employer Plan
(based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets
of such Plan allocable to such accrued benefits by an amount which, as
determined in accordance with GAAP, could reasonably be expected to
have a GCA Material Adverse Effect. Neither
25
the Parent nor any Commonly Controlled Entity is currently subject to
any liability for a complete or partial withdrawal from a Multiemployer
Plan which could reasonably be expected to have a GCA Material Adverse
Effect;
(h) The facilities and properties owned, leased or
operated by the Parent and the other Credit Parties or any of the GCA
Subsidiaries (the "GCA Properties") do not contain any Materials of
Environmental Concern in amounts or concentrations which (i) constitute
a material violation of, or (ii) could give rise to material liability
under, any Environmental Law;
(i) The GCA Properties and all operations of the Parent
and the other Credit Parties and/or the GCA Subsidiaries at the GCA
Properties are in compliance, and have in the last five years been in
compliance, in all material respects with all applicable Environmental
Laws, and there is no material contamination at, under or about the GCA
Properties or material violation of any Environmental Law with respect
to the GCA Properties or the business operated by the Parent and the
other Credit Parties or any of the GCA Subsidiaries (the "Business");
(j) Neither the Parent nor any of the other Credit
Parties has received any written or actual notice of violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard
to any of the GCA Properties or the Business, nor does the Parent or
any of the other Credit Parties nor any of the GCA Subsidiaries have
knowledge or reason to believe that any such notice will be received or
is being threatened;
(k) Materials of Environmental Concern have not been
transported or disposed of from the GCA Properties in material
violation of, or in a manner or to a location which could give rise to
material liability under any Environmental Law, nor have any Materials
of Environmental Concern been generated, treated, stored or disposed of
at, on or under any of the GCA Properties in material violation of, or
in a manner that could give rise to material liability under, any
applicable Environmental Law;
(l) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of the Parent and
the other Credit Parties, threatened, under any Environmental Law to
which the Parent or any other Credit Party or any GCA Subsidiary is or
will be named as a party with respect to the GCA Properties or the
Business that would have or would reasonably be expected to have a GCA
Material Adverse Effect, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under any
Environmental Law with respect to the GCA Properties or the Business
that, if violated, would have or would reasonably be expected to have a
GCA Material Adverse Effect;
(m) There has been no release or threat of release of
Materials of Environmental Concern at or from the GCA Properties, or
arising from or related to the operations of the Parent or any other
Credit Party or any GCA Subsidiary in connection
26
with the GCA Properties or otherwise in connection with the Business,
in material violation of or in amounts or in a manner that could give
rise to material liability under Environmental Laws;
(n) Set forth on Schedule 2 hereto is a complete and
accurate list of all subsidiaries of the Credit Parties. Information on
the attached Schedule 2 includes the following: (i) state of
incorporation; (ii) the number of shares of each class of Capital Stock
or other equity interests outstanding; (iii) the number and percentage
of outstanding shares of each class of stock; and (iv) the number and
effect, if exercised, of all outstanding options, warrants, rights of
conversion or purchase and similar rights. The outstanding Capital
Stock and other equity interests of all such subsidiaries is validly
issued, fully paid and non-assessable and is owned, free and clear of
all GCA Liens (other than those arising under or contemplated in
connection with the Operative Agreements or the GCA Credit Documents);
(o) Each Credit Party and its GCA Subsidiaries has good
and marketable fee simple title to all of its respective assets, or if
any GCA Property is leased by a Credit Party or a GCA Subsidiary, it
has a valid leasehold interest enforceable against the ground lessor of
such GCA Property in accordance with the terms of such lease, and none
of such assets is subject to any GCA Lien other than GCA Permitted
Liens;
(p) Except as otherwise permitted under Section 8B.1, the
Parent and the GCA Subsidiaries have no Indebtedness;
(q) Each of the Credit Parties and each GCA Subsidiary
thereof has filed or caused to be filed all tax reports and returns
required to be filed by each of them with any Governmental Authority,
except where extensions have been properly obtained and have paid or
made adequate provision for the payment of all taxes, assessments, fees
and other charges by any Governmental Authority which are due and
payable, except such taxes, assessments, fees and other charges, if
any, as are being diligently contested in good faith by appropriate
proceedings and as to which the applicable Credit Party or GCA
Subsidiary thereof has established adequate reserves in conformity with
GAAP on the books of such Credit Party or GCA Subsidiary. No GCA Lien
for any such taxes, assessments, fees or other charges has been filed,
and no claims are being asserted with respect to any such taxes,
assessments, fees or other charges which, if adversely determined,
could have a GCA Material Adverse Effect;
(r) The fair saleable value of each Credit Party's
assets, measured on a going concern basis, exceeds all probable
liabilities, including those to be incurred pursuant to the Operative
Agreements. None of the Credit Parties (i) has unreasonably small
capital in relation to the business in which it is or proposes to be
engaged or (ii) has incurred, or believes that it will incur after
giving effect to the transactions contemplated by the Operative
Agreements, debts beyond its ability to pay such debts as they become
due;
(s) All Investments of each of the Parent and the GCA
Subsidiaries are Permitted Investments;
27
(t) Set forth on Schedule 3 is a list of the GCA
Properties of the Parent and the GCA Subsidiaries with street address,
county and state where located. Set forth on Schedule 4 is the chief
executive office and principal place of business of each of the Parent
and the GCA Subsidiaries. Schedule 3 and Schedule 4 may be updated from
time to time by the Parent to include new properties or locations by
giving written notice thereof to the Agent;
(u) None of the Parent or any of the GCA Subsidiaries is
a party to any agreement or instrument or subject to any other
obligation or any charter or corporate restriction or any provision of
any applicable law, rule or regulation which, individually or in the
aggregate, could reasonably be expected to have a GCA Material Adverse
Effect;
(v) None of the Parent or any of the GCA Subsidiaries has
any obligation to any Person in respect of any finder's, broker's,
investment banking or other similar fee in connection with any of the
transactions contemplated under the Operative Agreements other than the
closing and other fees payable pursuant to this Participation
Agreement;
(w) There are no collective bargaining agreements or
Multiemployer Plans covering the employees of the Parent or any of the
GCA Subsidiaries as of the Closing Date, other than as set forth in
Schedule 5 hereto, and none of the Parent or any of the GCA
Subsidiaries (i) has suffered any strikes, walkouts, work stoppages or
other material labor difficulty within the last five years, other than
as set forth in Schedule 5 hereto or (ii) has knowledge of any
potential or pending strike, walkout or work stoppage;
(x) The GCA Security Documents create valid security
interests in, and GCA Liens on, the Collateral purported to be covered
thereby, which security interests and GCA Liens are currently (or will
be, upon the filing of appropriate financing statements in favor of the
Agent, on behalf of the Primary Financing Parties) perfected security
interests and GCA Liens, prior to all other GCA Liens other than GCA
Permitted Liens;
(y) [RESERVED];
(z) All registration statements, reports, proxy
statements and other documents, if any, required to be filed by the
Lessee, its Subsidiaries, the Credit Parties and the GCA Subsidiaries
with the Securities and Exchange Commission pursuant to the Securities
Act of 1933 and the Securities Exchange Act of 1934, as amended, have
been filed, and such filings are complete and accurate and contain no
untrue statements of material fact or omit to state any material facts
required to be stated therein or necessary in order to make the
statements therein not misleading.
(aa) None of the Lessee, or any Subsidiary thereof, Credit
Parties or any of the GCA Subsidiaries has breached or violated, or is
in default under, any Material Agreement or has defaulted in making any
payment when due with respect to money
28
borrowed by such Lessee, or any Subsidiary thereof, Credit Party or GCA
Subsidiary under any Material Agreement; and
(bb) The insurance certificates evidencing liability,
casualty and business interruption insurance coverage of the Credit
Parties and the GCA Subsidiaries have been delivered to the Agent and
such insurance coverage is on terms and in coverage amounts comparable
to the industry standard applicable to the assets and operations of the
Credit Parties and the GCA Subsidiaries.
SECTION 17. PAYMENT OF CERTAIN EXPENSES.
17.1. TRANSACTION EXPENSES.
(a) The Lessor agrees on the Initial Closing Date, to
pay, or cause to be paid, all Transaction Expenses arising from the
Initial Closing Date, including without limitation all reasonable fees,
expenses and disbursements of the various legal counsels for the Lessor
and the Agent in connection with the transactions contemplated by the
Operative Agreements and incurred in connection with such Initial
Closing Date, the reasonable out-of-pocket expenses of the Lessor due
and payable on such Initial Closing Date, all fees, taxes and expenses
for the recording, registration and filing of documents and all other
reasonable fees, expenses and disbursements incurred in connection with
such Initial Closing Date; provided, however, the Lessor shall pay such
amounts described in this Section 7.1(a) only if (i) such amounts are
properly described in a Requisition delivered on or before the Initial
Closing Date, and (ii) funds are made available by the Lessor and the
Lenders in connection with such Requisition in an amount sufficient to
allow such payment. On the Initial Closing Date after delivery and
receipt of the Requisition referenced in Section 4.2 hereof and
satisfaction of the other conditions precedent for such date, the
Lessor shall make a Lessor Advance and the Lenders shall make Loans to
the Lessor to enable the Lessor to pay for the Transaction Expenses
referenced in this Section 7.1(a). The Lessee agrees to timely pay all
amounts referred to in this Section 7.1(a) to the extent the Lessor is
not required to pay such amounts.
(b) Assuming no Default or Event of Default shall have
occurred and be continuing, the Lessor agrees to pay, or cause to be
paid, on each Property Closing Date (i) all Transaction Expenses
including without limitation all reasonable fees, expenses and
disbursements of the various legal counsels for the Lessor and the
Agent in connection with the transactions contemplated by the Operative
Agreements and billed in connection with such Advance, (ii) all amounts
described in Section 7.1(a) which have not been previously paid, (iii)
the fees and reasonable out-of-pocket expenses of the Lessor, (iv) all
fees, expenses and disbursements incurred with respect to the various
items referenced in Section 5.3 (including without limitation any
premiums for title insurance policies and charges for any updates to
such policies), (v) all other reasonable fees, expenses and
disbursements in connection with such Advance including without
limitation all expenses relating to and all fees, taxes and expenses
for the recording, registration and filing of documents and (vi) all
fees, expenses and costs referenced in
29
Sections 7.3(a), 7.3(b) and 7.3(d); provided, however, the Lessor shall
pay such amounts described in this Section 7.1(b) only if (i) such
amounts are properly described in a Requisition delivered on the
applicable date and (ii) funds are made available by the Lenders and
the Lessor in connection with such Requisition in an amount sufficient
to allow such payment. On each Property Closing Date, after delivery of
the applicable Requisition and satisfaction of the other conditions
precedent for such date, the Lessor shall make a Lessor Advance and the
Lenders shall make Loans to the Lessor to pay for the Transaction
Expenses referenced in this Section 7.1(b). The Lessee agrees to timely
pay all amounts referred to in this Section 7.1(b) to the extent not
paid by the Lessor.
(c) All fees payable pursuant to the Operative Agreements
shall be calculated on the basis of a year of three hundred sixty (360)
days for the actual days elapsed.
17.2. BROKERS' FEES.
The Lessee agrees to pay or cause to be paid all brokers' fees, if any,
including without limitation any interest and penalties thereon, which are
payable in connection with the transactions contemplated by this Agreement and
the other Operative Agreements.
17.3. CERTAIN FEES AND EXPENSES.
To the extent not duplicative of amounts funded by an Advance on a
Closing Date, the Lessee agrees to pay or cause to be paid (a) all reasonable
expenses of the Lessor (including without limitation reasonable counsel fees and
expenses); (b) all reasonable costs and expenses incurred by the Lessee, the
Agent or any Primary Financing Party in entering into any Lease Supplement and
any future amendments, modifications, supplements, restatements and/or
replacements with respect to any of the Operative Agreements, whether or not
such Lease Supplement, amendments, modifications, supplements, restatements
and/or replacements are ultimately entered into, or giving or withholding of
waivers of consents hereto or thereto, which have been requested by the Lessee,
the Agent or any Primary Financing Party; (c) all reasonable costs and expenses
incurred by the Lessee, the Agent or any Primary Financing Party in connection
with any exercise of remedies under any Operative Agreement or any purchase of
any Property by the Lessee or any third party; and (d) all reasonable costs and
expenses incurred by the Lessee, the Agent or any Primary Financing Party in
connection with any transfer or conveyance of any Property, whether or not such
transfer or conveyance is ultimately accomplished.
17.4. [RESERVED].
17.5. ADMINISTRATIVE FEE.
The Lessee shall pay or cause to be paid an administrative fee to the
Agent (for its individual account) on the terms and conditions set forth in the
fee letter dated March 24, 2003 (the "Lessee Fee Letter") regarding the lease
financing addressed to the Parent (to the attention of Mr. Paul Mendlik, Chief
Financial Officer of the Parent) from the Agent and Wachovia Securities, Inc.
(executed by Mr. Weston R. Garrett, Vice President of the Agent and Wachovia
30
Securities, Inc.). No additional administrative fee shall be paid with respect
to the sale of a participation interest by any Lender in the transactions
evidenced by the Operative Agreements.
17.6. UPFRONT FEE.
The Lessee shall pay or cause to be paid to the Agent (for distribution
to the applicable Lenders) an upfront fee for each of the Lenders (excluding
Wachovia Capital Investments, Inc.) in accordance with the terms of the letter
dated on or about March 24, 2003 addressed to Mr. Paul Mendlik, Chief Financial
Officer of West Corporation from Wachovia Bank, National Association and
Wachovia Securities, Inc.
SECTION 18. OTHER COVENANTS AND AGREEMENTS.
18.1. COOPERATION WITH THE LESSEE.
The Primary Financing Parties and the Agent shall, at the expense of
and to the extent reasonably requested by the Lessee (but without assuming
additional liabilities on account thereof and only to the extent such is
acceptable to the Primary Financing Parties and/or the Agent, as applicable, in
their reasonable discretion), cooperate with the Lessee in connection with the
Lessee satisfying its covenant obligations contained in the Operative Agreements
including without limitation at any time and from time to time, promptly and
duly executing and delivering any and all such further instruments, documents
and financing statements (and continuation statements related thereto).
18.2. COVENANTS OF THE LESSOR.
The Lessor hereby agrees that so long as this Agreement is in effect:
(a) The Lessor will not create or permit to exist at any
time, and will, at its own cost and expense, promptly take such action
as may be necessary duly to discharge, or to cause to be discharged,
all Lessor Liens on the Properties attributable to it; provided,
however, that the Lessor shall not be required to so discharge any such
Lessor Lien while the same is being contested in good faith by
appropriate proceedings diligently prosecuted so long as such
proceedings shall not materially and adversely affect the rights of the
Lessee under the Lease and the other Operative Agreements or involve
any material danger of impairment of the Liens of the Security
Documents or of the sale, forfeiture or loss of, and shall not
interfere with the use or disposition of, any Property or title thereto
or any interest therein or the payment of Rent;
(b) The Lessor shall not (i) commence any case,
proceeding or other action under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, arrangement, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (ii)
seek appointment of a receiver, trustee, custodian or other similar
official for all or any substantial benefit of the creditors of the
Lessor; and the Lessor shall not take any action
31
in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in this paragraph;
(c) The Lessor shall give prompt written notice to the
Lessee, the Primary Financing Parties (other than the Lessor) and the
Agent if the Lessor's location for purposes of the UCC shall cease to
be North Carolina, or if the Lessor's principal place of business or
chief executive office, or the office where the records concerning the
accounts or contract rights relating to any Property are kept, shall
cease to be located at One Wachovia Center, 301 South College Street,
Charlotte, North Carolina 28288; and
(d) The Lessor shall take or refrain from taking such
actions and grant or refrain from granting such approvals with respect
to the Operative Agreements and/or relating to any Property in each
case as directed in writing by the Agent (until such time as the Loans
are paid in full) or, in connection with Section 8.5 hereof, the
Lessee; provided, however, that each of the Agent, the Primary
Financing Parties (other than the Lessor) and the Lessee acknowledges,
covenants and agrees that it will not instruct the Lessor to take any
action in violation of the terms of any Operative Agreement.
(e) Upon receipt by the Lessor from the Lessee, but in no
event more often than once per fiscal quarter of the Lessor, of (i) a
request to update the letter previously delivered by the Lessor
regarding certain statements by the Lessor, regarding the Lessor's
business and (ii) updated attachments A and B to such letter or such
other information to be provided by any Credit Party, the Lessor shall
deliver within a reasonable amount of time to the Lessee or an
Affiliate of the Lessee such letter updated as of the Lessor's fiscal
quarter most recently ended.
18.3. THE LESSEE COVENANTS, CONSENT AND ACKNOWLEDGMENT.
(a) The Lessee acknowledges and agrees that the Borrower,
pursuant to the terms and conditions of the Security Agreement, the
Mortgage Instruments and certain of the other Security Documents, shall
create Liens respecting the Properties (including without limitation
the Land, Improvements and Equipment constituting such Properties)
described therein in favor of the Agent. The Lessee hereby irrevocably
consents to the creation, perfection and maintenance of such Liens. The
Lessee shall, to the extent reasonably requested by any of the other
parties hereto, cooperate with the other parties in connection with
their covenants herein or in the other Operative Agreements and shall
from time to time duly execute and deliver any and all such future
instruments, documents and financing statements (and continuation
statements related thereto) as any other party hereto may reasonably
request.
(b) The Lessor hereby instructs the Lessee, and the
Lessee hereby acknowledges and agrees, that until such time as the
Loans and the Lessor Advances are paid in full and the Liens evidenced
by the Security Documents have been released (i) any and all Rent
(excluding Excepted Payments and Supplemental Rent) and any and all
other amounts of any kind or type under any of the Operative Agreements
due and owing or payable to any Person shall instead be paid directly
to the Agent (on behalf of
32
the Person entitled thereto; provided, that Excepted Payments and
Supplemental Rent shall be paid directly to the Person entitled
thereto) or as the Agent may direct from time to time for allocation
and distribution in accordance with the procedures set forth in Section
8.7 hereof, (ii) all rights of the Lessor under the Lease shall be
exercised by the Agent and (iii) the Lessee shall cause all notices,
certificates, financial statements, communications and other
information which are delivered, or are required to be delivered, to
the Lessor, to also be delivered to the Agent, as Lessor's agent.
(c) The Lessee shall not consent to or permit any
amendment, supplement or other modification of the terms or provisions
of any Operative Agreement to which it is a party except in accordance
with Section 12.4 of this Agreement.
(d) The Lessee hereby covenants and agrees to cause an
Appraisal or reappraisal (in form and substance reasonably satisfactory
to the Agent and from an appraiser selected by the Agent) to be issued
respecting each Property as requested by the Agent from time to time
(i) at each and every time as such shall be required to satisfy any
regulatory requirements imposed on the Agent and/or any Primary
Financing Party and (ii) after the occurrence of a Lease Event of
Default.
(e) The Lessee hereby covenants and agrees that, except
for amounts payable as Basic Rent, any and all payment obligations
owing from time to time under the Operative Agreements by any Person to
the Agent, any Primary Financing Party or any other Person shall
(without further action) be deemed to be Supplemental Rent obligations
payable by the Lessee. Without limitation, such obligations of the
Lessee shall include the Supplemental Rent obligations pursuant to this
Section 8.3(e), Section 3.3 of the Lease, arrangement fees,
administrative fees, participation fees, upfront fees, unused fees,
prepayment penalties, breakage costs, indemnities and transaction
expenses incurred by the parties hereto in connection with the
transactions contemplated by the Operative Agreements.
(f) At any time the Lessor or the Agent is entitled under
the Operative Agreements to possession of a Property or any component
thereof, the Lessee hereby covenants and agrees, at its own cost and
expense, to assemble and make the same available to the Agent (on
behalf of the Lessor).
(g) The Lessee hereby covenants and agrees that
Non-Integral Equipment respecting any individual parcel of Property
shall at no time constitute in excess of ten percent (10%) of the
aggregate Advances respecting such parcel of Property funded at such
time under the Operative Agreements.
(h) The Lessee hereby covenants and agrees that each
parcel of the Property shall be a Permitted Facility.
(i) The Lessee hereby covenants and agrees that it shall
give prompt notice to the Agent if the Lessee's location for purposes
of the UCC shall cease to be Delaware, or if its principal place of
business or chief executive office, or the office where the records
33
concerning the accounts or contract rights relating to any Property are
kept, shall cease to be located at 11808 Miracle Hills Drive, Omaha,
Douglas County, Nebraska 68154 or if it shall change its name.
(j) The Lessee shall promptly notify the Agent, or cause the
Agent and each Primary Financing Party to be promptly notified, upon
any Credit Party gaining knowledge of the occurrence of any Default or
Event of Default which is continuing at such time.
(k) Until all of the obligations under the Operative
Agreements have been finally and indefeasibly paid and satisfied in
full and the Commitments terminated, unless consent has been obtained
from the Majority Secured Parties, the Lessee will:
(i) preserve and maintain its corporate existence and
all rights, franchises, licenses and privileges necessary to
the conduct of its business, and qualify and remain qualified
as a foreign corporation (or partnership, limited liability
company or other such similar entity, as the case may be) and
authorized to do business in each jurisdiction in which the
failure to so qualify would have a Material Adverse Effect and
shall maintain all licenses, permits and registrations
necessary for the conduct of its operations;
(ii) pay and perform all obligations of the Lessee
under the Operative Agreements and pay and perform (A) all
taxes, assessments and other governmental charges that may be
levied or assessed upon any Property, which if not paid or
performed would have a Material Adverse Effect, (B) all taxes,
assessments and other governmental charges that may be levied
or assessed upon it or any of its property, which if not paid
or performed would have a Material Adverse Effect, and (C) all
other indebtedness, obligations and liabilities in accordance
with customary trade practices, which if not paid would have a
Material Adverse Effect; provided that the Lessee may contest
any item described in this Section 8.3(k)(ii) in good faith so
long as adequate reserves are maintained with respect thereto
in accordance with GAAP;
(iii) to the extent failure to do so would have a
Material Adverse Effect, observe and remain in compliance with
all applicable Laws and maintain in full force and effect all
Governmental Actions, in each case applicable to the conduct
of its business; keep in full force and effect all licenses,
certifications or accreditations necessary for any Property to
carry on its business; and not permit the termination of any
insurance reimbursement program available to any Property; and
(iv) [RESERVED].
(l) Lessee shall perform any and all obligations of Lessor
under, and cause Lessor to otherwise remain in full compliance with,
the terms and provisions of each Ground Lease, if any.
34
(m) Promptly after obtaining any required architectural
approvals by any business park or any other applicable entity with
oversight responsibility for the applicable Improvements, the Lessee
shall deliver to the Agent copies of the same.
(n) The Lessee hereby covenants and agrees that the Clarke
Sublease shall not be amended, modified, restated and/or replaced in
any manner without the prior written consent of the Agent (acting upon
direction from the Majority Secured Parties).
(o) Until all of the obligations under the Operative
Agreements have been finally and indefeasibly paid and satisfied in
full and the Commitments terminated, unless consent has been obtained
from the Majority Secured Parties, the Lessee will not enter into any
agreement, any term or condition of which would, if complied with by
the Lessee, result in a Default or Event of Default either immediately
or upon the elapsing of time.
18.4. SHARING OF CERTAIN PAYMENTS.
Except for Excepted Payments and Supplemental Rent, the parties hereto
acknowledge and agree that all payments due and owing by the Lessee to the
Lessor under the Lease or any of the other Operative Agreements shall be made by
the Lessee directly to the Agent as more particularly provided in Section 8.3
hereof. Excepted Payments and Supplemental Rent shall be paid directly to the
Person entitled thereto. The Lessor, the Agent, the Lenders and the Lessee
acknowledge the terms of Section 8.7 of this Agreement regarding the allocation
of payments and other amounts made or received from time to time under the
Operative Agreements and agree that all such payments and amounts are to be
allocated as provided in Section 8.7 of this Agreement.
18.5. GRANT OF EASEMENTS, ETC.
The Agent, the Lenders and the Lessor hereby agree that, so long as no
Event of Default shall have occurred and be continuing, the Lessor shall, from
time to time at the request of the Lessee (and with the prior consent of the
Agent), in connection with the transactions contemplated by the Lease or the
other Operative Agreements, (i) grant easements and other rights in the nature
of easements with respect to any Property, (ii) release existing easements or
other rights in the nature of easements which are for the benefit of any
Property, (iii) execute and deliver to any Person any instrument appropriate to
confirm or effect such grants or releases, and (iv) execute and deliver to any
Person such other documents or materials in connection with the acquisition,
testing or operation of any Property, including without limitation reciprocal
easement agreements, operating agreements, plats, replats or subdivision
documents; provided, that each of the agreements referred to in this Section 8.5
shall be of the type normally executed by the Lessee in the ordinary course of
the Lessee's business and shall be on commercially reasonable terms so as not to
diminish the value of any Property in any material respect.
35
18.6. APPOINTMENT OF THE AGENT BY THE PRIMARY FINANCING PARTIES.
(a) The Secured Parties acknowledge and agree and direct that
the rights and remedies of the beneficiaries of the Lien of the
Security Documents shall be exercised by the Agent on behalf of the
Secured Parties in accordance with the provisions of the Operative
Agreements; provided, in all cases, the Agent shall allocate payments
and other amounts received in accordance with Section 8.7. The Agent is
further appointed to provide notices under the Operative Agreements on
behalf of the Lessor and each other Primary Financing Party (as
determined by the Agent, in its reasonable discretion), to receive
notices under the Operative Agreements on behalf of the Lessor and each
other Primary Financing Party. The Agent hereby accepts such
appointments.
(b) Each Primary Financing Party hereby designates and
appoints the Agent as the agent of such Primary Financing Party under
this Agreement and the other Operative Agreements, and each such
Primary Financing Party authorizes the Agent, in such capacity, to
execute the Operative Agreements as agent for and on behalf of such
Primary Financing Party, to take such action on behalf of such Primary
Financing Party under the provisions of this Agreement and the other
Operative Agreements and to exercise such powers and perform such
duties as are expressly delegated to the Agent by the terms of this
Agreement and other Operative Agreements, together with such other
powers as are reasonably incidental thereto. Subject to the terms of
the Operative Agreements, each of the Primary Financing Parties directs
the Agent to exercise such powers, make such decisions and otherwise
perform such duties as are delegated to the Agent hereunder or
thereunder without being required to obtain any specific consent with
respect thereto from any Primary Financing Party, unless the matter
under consideration is a Unanimous Vote Matter or otherwise requires
consent of the Majority Lenders and/or the Majority Secured Parties.
Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Agent shall not have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship
with any Primary Financing Party, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into
this Agreement or any other Operative Agreement or otherwise exist
against the Agent.
(c) The Agent may execute any of its duties under this
Agreement and the other Operative Agreements by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning
all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
(d) Neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates shall be (a) liable
for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other
Operative Agreement (except for its or such Person's own gross
negligence, willful misconduct or its or such Person's failure to use
ordinary care in the handling of funds) or (b) responsible in any
manner to any of the Primary Financing Parties for any recitals,
statements, representations or warranties made by the Borrower or any
Credit Party or
36
any officer thereof contained in this Agreement or any other Operative
Agreement or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or any other Operative Agreement or for
the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Operative Agreement or for
any failure of the Borrower or any Credit Party to perform its
obligations hereunder or thereunder. The Agent shall not be under any
obligation to any Primary Financing Party to ascertain or to inquire as
to the observance or performance of any of the agreements contained in,
or conditions of, this Agreement or any other Operative Agreement, or
to inspect the properties, books or records of the Borrower or any
Credit Party.
(e) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by
it 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 (including without limitation counsel to the Borrower or any
Credit Party), independent accountants and other experts selected by
the Agent. The Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Agent.
The Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Operative Agreement unless it
shall first receive such advice or concurrence of the Majority Secured
Parties, the Majority Lenders or all the Primary Financing Parties, as
the case may be, as set forth in this Agreement or any other Operative
Agreement or it shall first be indemnified to its satisfaction by the
Primary Financing 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 Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the
other Operative Agreements in accordance therewith, and such and any
action taken or failure to act pursuant thereto shall be binding upon
all the Primary Financing Parties and all future holders of the Notes.
(f) The Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default or Event of Default hereunder unless
the Agent has received written notice from a Primary Financing Party, a
Credit Party or the Borrower referring to this Agreement or such other
Operative Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that
the Agent receives such a notice, the Agent shall give notice thereof
to the Primary Financing Parties and the Lessee. The Agent shall take
such action with respect to such Default or Event of Default as shall
be directed by the Majority Secured Parties or otherwise as determined
pursuant to intercreditor provisions in any other agreement among the
Primary Financing Parties; provided, that unless and until the Agent
shall have received such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Primary Financing Parties;
provided, further, the foregoing shall not limit the rights of the
Lessor, the Majority Lenders or all the Primary
37
Financing Parties, as the case may be, as described in this Agreement
or any other Operative Agreement.
(g) Each Primary Financing Party expressly acknowledges that
neither the Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates has made any representations or
warranties to it and that no act by the Agent hereinafter taken,
including without limitation any review of the affairs of the Borrower
or the Credit Parties, shall be deemed to constitute any representation
or warranty by the Agent to any Primary Financing Party. Each Primary
Financing Party represents to the Agent that it has, independently and
without reliance upon the Agent or any other Primary Financing Party,
and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower and the Credit Parties and made its
own decision to make Loans pursuant to its Notes or make its Lessor
Advance hereunder and enter into this Agreement. Each Primary Financing
Party also represents that it will, independently and without reliance
upon the Agent or any other Primary Financing Party, and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other
Operative Agreements, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower and
the Credit Parties. The Agent agrees to provide to the Primary
Financing Parties notices, reports and other documents that are
customarily provided by the Agent in its capacity as Agent in
transactions similar to the transactions contemplated hereby and by the
other Operative Agreements. Except for notices, reports and other
documents expressly required to be furnished to the Primary Financing
Parties by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Primary Financing Party with any credit
or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of
the Borrower or the Credit Parties which may come into the possession
of the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
(h) The Primary Financing Parties agree to indemnify the
Agent, in its capacity as such (to the extent not reimbursed by the
Borrower or the Credit Parties and without limiting any obligation of
the Borrower or the Credit Parties under and in accordance with the
terms of the Operative Agreements to do so), ratably according to their
respective Commitment Percentages in effect on the date on which
indemnification is sought under this Section (or, if indemnification is
sought after the date upon which the Commitments shall have terminated
and the Notes and the Lessor Advance shall have been paid in full,
ratably in accordance with their Commitment Percentages immediately
prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at
any time (including without limitation at any time following the
payment of the Notes) be imposed on, incurred by or asserted against
any of them in any way relating to or arising out of, the Commitments,
this Agreement, any of the other Operative Agreements or any documents
contemplated by or referred to herein or therein
38
or the transactions contemplated hereby or thereby or any action taken
or omitted by any of them under or in connection with any of the
foregoing; provided, that no Primary Financing Party shall be liable
for the payment of any portion of such liabilities, obligations,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the gross negligence or willful
misconduct of the Agent, or its failure to use ordinary care in the
handling of funds. The agreements in this Section shall survive the
payment of the Notes and all other amounts payable hereunder.
(i) The Agent and its Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the
Borrower or the Credit Parties as though the Agent were not the Agent
hereunder and under the other Operative Agreements.
(j) (i) The Agent may resign at any time as the Agent upon
sixty (60) days' notice to the Primary Financing Parties, the
Borrower and, so long as no Event of Default shall have
occurred and be continuing, the Lessee. If the Agent shall
resign as the Agent under this Agreement, a successor Agent
shall be appointed by the Majority Secured Parties which
successor Agent shall be subject to the approval of, so long
as no Event of Default shall have occurred and be continuing,
the Lessee, such approval not to be unreasonably withheld or
delayed. If no successor Agent is appointed prior to the
effective date of the resignation of the resigning Agent, the
Agent may appoint, after consulting with the Primary Financing
Parties and subject to the approval of, so long as no Event of
Default shall have occurred and be continuing, the Lessee,
such approval not to be unreasonably withheld or delayed, a
successor Agent. Any successor Agent, however appointed, shall
be a bank or trust company incorporated and doing business
within the United States of America and having a combined
capital and surplus of at least $200,000,000, if there be such
an institution willing, able and legally qualified to perform
the duties of the Agent hereunder upon reasonable or customary
terms. If no successor Agent has accepted appointment as the
Agent by the date which is sixty (60) days following a
retiring Agent's notice of resignation, the retiring Agent's
notice of resignation shall nevertheless thereupon become
effective and the Primary Financing Parties shall perform all
of the duties of the Agent until such time, if any, as the
Majority Secured Parties appoint a successor Agent, as
provided for above. Upon the effective date of such
resignation, only such successor Agent shall succeed to all
the rights, powers and duties of the retiring Agent and the
term "Agent" shall mean such successor agent and the retiring
Agent's rights, powers and duties in such capacity shall be
terminated. After any retiring Agent resigns hereunder as the
Agent, the provisions of this Section 8.6 shall inure to their
respective benefit as to any actions taken or omitted to be
taken by it while it was the Agent under this Agreement.
(ii) The Agent may be removed (x) by the Majority
Secured Parties in the case of fraud, misappropriation of
funds or the commission of illegal acts by the Agent or where
the Agent has failed to perform its obligations hereunder or
39
under any other Operative Agreement in any material respect,
or (y) any time at the request of any Primary Financing Party,
but only with the consent of the Secured Parties and, so long
as no Event of Default shall have occurred and be continuing,
the Lessee. Any such removal shall be effective upon the
acceptance of appointment of a successor Agent in accordance
with the provisions of paragraph (i) of this Section 8.6(j);
provided, however, to the extent the Agent being replaced
pursuant to clause (x) of this Section 8.6(j)(ii) is also a
Lender, such Person shall not be permitted to vote in
connection with the appointment or approval of a successor
Agent pursuant to paragraph (i) of this Section 8.6(j).
(k) Other than the exercise of reasonable care to assure the
safe custody of the Collateral while being held by the Agent hereunder
or under any other Operative Agreement, the Agent shall have no duty or
liability to preserve rights pertaining thereto, it being understood
and agreed that the Lessee shall be responsible for preservation of all
rights in the Collateral, and the Agent shall be relieved of all
responsibility for the Collateral upon surrendering it or tendering the
surrender of it to the Lessee. The Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which the Agent accords its own property,
which shall be no less than the treatment employed by a reasonable and
prudent agent in the industry, it being understood that the Agent shall
not have responsibility for taking any necessary steps to preserve
rights against any parties with respect to any of the Collateral.
18.7. COLLECTION AND ALLOCATION OF PAYMENTS AND OTHER AMOUNTS.
(a) The Lessee has agreed pursuant to Section 5.5 and otherwise in
accordance with the terms of this Agreement to pay to (i) the Agent any
and all Rent (excluding Excepted Payments and Supplemental Rent) and
any and all other amounts of any kind or type under any of the
Operative Agreements due and owing or payable to any Person hereto and
(ii) each Person as appropriate the Excepted Payments and Supplemental
Rent. Promptly after receipt, the Agent shall apply and allocate, in
accordance with the terms of this Section 8.7, such amounts received
from the Lessee and all other payments, receipts and other
consideration of any kind whatsoever received by the Agent pursuant to
the Security Agreement or otherwise received by the Agent, the Lessor
or any of the Primary Financing Parties in connection with the
Collateral, the Security Documents or any of the other Operative
Agreements. Ratable distributions among the Primary Financing Parties
under this Section 8.7 shall be made based on the ratio of the amounts
outstanding under the Financing to the aggregate Property Cost. Ratable
distributions among the Lenders under this Section 8.7 shall be made
based on the ratio of the amounts outstanding under an individual
Lender's Note to the aggregate of all amounts outstanding under all of
the Lenders' Notes.
(b) Payments and other amounts received by the Agent or Lessor
from time to time in accordance with the terms of subparagraph (a)
shall be applied and allocated as follows (subject in all cases to
Section 8.7(c)):
(i) Any such payment or amount identified as or
deemed to be Basic Rent shall be applied and allocated by the
Agent if no Default or Event of Default is in effect, first,
ratably to the Primary Financing Parties for application and
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allocation to the payment of interest on the Loans and Lessor
Yield on the Lessor Advance and thereafter the principal of
the Loans and the principal amount of the Lessor Advance which
is due and payable on such date; second, to any and all other
amounts owing under the Operative Agreements to the Primary
Financing Parties; and third, any excess shall be paid to such
Person or Persons as the Lessee may designate; provided, that
if a Default or Event of Default is in effect, such amounts
shall instead be held by the Agent until the earlier of (I)
the first date thereafter on which no Default or Event of
Default shall be in effect (in which case such payments or
returns shall then be made to such other Person or Persons as
the Lessee may designate) and (II) the Expiration Date (or, if
earlier, the date of any Acceleration), in which case such
amounts shall be applied and allocated in the manner
contemplated by Section 8.7(b)(iv).
(ii) If on any date the Agent or the Lessor shall
receive any amount in respect of (A) any Casualty or
Condemnation pursuant to Sections 15.1(a) or 15.1(g) of the
Lease (excluding any payments in respect thereof which are
payable to the Lessee in accordance with the Lease), or (B)
the Termination Value in connection with the delivery of a
Termination Notice pursuant to Article XVI of the Lease, or
(C) the Termination Value in connection with the exercise of
the Purchase Option under Section 20.1 of the Lease or the
exercise of the option of the Lessor to transfer the
Properties to the Lessee pursuant to Section 20.3 of the
Lease, then in each case, the Lessor shall be required to pay
such amount received in accordance with Section 8.7(b)(iii)
hereof; provided, that any excess shall be paid to the Lessee
or its designee in accordance with Section 15.1 of the Lease.
(iii) An amount equal to any payment identified as
proceeds of the sale or other disposition (or lease upon the
exercise of remedies) of the Properties or any portion
thereof, whether pursuant to Article XXII of the Lease or the
exercise of remedies under the Security Documents or
otherwise, the execution of remedies set forth in the Lease
and any payment in respect of excess wear and tear pursuant to
Section 22.3 of the Lease shall be applied and allocated by
the Agent first, to the payment to the Lessor of the
outstanding principal balance of all Lessor Advances plus all
outstanding Lessor Yield with respect to such outstanding
Lessor Advances, second, to any and all other amounts owing
under the Operative Agreements to the Lessor, third, ratably
to the payment of the principal and interest of the Loans then
outstanding, fourth, to any and all other amounts owing under
the Operative Agreements to the Lenders under the Loans, and
fifth, to the extent moneys remain after application and
allocation pursuant to clauses first through fourth above, to
the Lessor for application and allocation to any and all other
amounts owing to any Financing Party and as the Lessor shall
determine.
(iv) An amount equal to (A) any such payment pursuant
to Section 22.1(b) of the Lease (or otherwise) of the Maximum
Residual Guarantee Amount (and any such lesser amount as may
be required by Section 22.1(b) of the Lease) in respect of the
Properties and (B) any other amount payable upon any
41
exercise of remedies after the occurrence of an Event of
Default not covered by Sections 8.7(b)(i) or 8.7(b)(iii) above
(including without limitation any amount received in
connection with an Acceleration which does not represent
proceeds from the sale or liquidation of the Properties),
shall be applied and allocated by the Agent first, ratably, to
the payment of the principal and interest balance of Loans
then outstanding, second, to the payment of any other amounts
owing to the Lenders hereunder or under any of the other
Operative Agreements, third, to the payment of the principal
balance of all Lessor Advances plus all outstanding Lessor
Yield with respect to such outstanding Lessor Advance, fourth,
to the payment of any other amounts owing to the Lessor
hereunder or under any of the other Operative Agreements, and
fifth, to the extent moneys remain after application and
allocation pursuant to clauses first through fourth above, to
the Lessor for application and allocation to any other amounts
owing to any Financing Party as the Lessor shall determine.
(v) An amount equal to any such payment identified as
Supplemental Rent shall be applied and allocated by the Agent
to the payment of any amounts then owing as Supplemental Rent
to the Persons entitled thereto (other than any such amounts
payable pursuant to the preceding provisions of this Section
8.7(b)) as shall be determined by the Agent in its reasonable
discretion; provided, however, that Supplemental Rent received
upon the exercise of remedies after the occurrence and
continuance of an Event of Default in lieu of or in
substitution of the Maximum Residual Guarantee Amount or as a
partial payment thereon shall be applied and allocated as set
forth in Section 8.7(b)(iv).
(vi) The Agent in its reasonable judgment shall
identify the nature of each payment or amount received by the
Agent and apply and allocate each such amount in the manner
specified above.
(c) Upon the payment in full of the Loans, the Lessor Advances
and all other amounts then due and owing by the Borrower hereunder or
under any Credit Document and the payment in full of all other amounts
then due and owing to the Lenders, the Lessor, the Agent and the other
Financing Parties pursuant to the Operative Agreements, any moneys
remaining with the Agent shall be returned to the Lessee. It is agreed
that, prior to the application and allocation of amounts received by
the Agent in the order described in Section 8.7(b) above or any
distribution of money to the Lessee, any such amounts shall first be
applied and allocated to the payment of (i) any and all sums advanced
by the Agent in order to preserve the Collateral or to preserve its
Lien thereon, (ii) the expenses of retaking, holding, preparing for
sale or lease, selling or otherwise disposing or realizing on the
Collateral, or of any exercise by the Agent of its rights under the
Security Documents, together with reasonable attorneys' fees and
expenses and court costs and (iii) any and all other amounts reasonably
owed to the Agent under or in connection with the transactions
contemplated by the Operative Agreements (including without limitation
any accrued and unpaid administration fees).
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18.8. RELEASE OF PROPERTIES, ETC.
If the Lessee shall at any time purchase any Property pursuant to the
Lease or if any Property shall be sold in accordance with Article XXII of the
Lease, then, upon satisfaction by the Lessor of its obligation to prepay the
Loans, Lessor Advances and all other amounts owing to the Lenders and the Lessor
under the Operative Agreements, the Agent is hereby authorized and directed to
release such Property from the liens created by the Security Documents. In
addition, upon the termination of the Commitments and the payment in full of the
Loans, the Lessor Advances and all other amounts owing by the Lessor and the
Lessee hereunder or under any other Operative Agreement the Agent is hereby
authorized and directed to release all of the Properties from the Liens created
by the Security Documents. The Agent shall, at the sole cost and expense of the
Lessee, execute and deliver to the Lessor and the Lessee such documents as the
Lessor or the Lessee shall reasonably request to evidence such release.
18.9. LIMITATION OF LESSOR'S OBLIGATIONS.
(a) The Lessor shall not have any duty or obligation to
manage, control, use, make any payment in respect of, register, record,
insure, inspect, sell, dispose of or otherwise deal with the Properties
or any other part of the Borrower's Interest, or to otherwise take or
refrain from taking any action under or in connection with any
Operative Agreement to which the Lessor is a party, except as expressly
provided by the terms of the Operative Agreements or in written
instructions from all the Primary Financing Parties and/or the Majority
Secured Parties, as applicable, received pursuant to Section 8.6; and
no implied duties or obligations shall be read into the Operative
Agreements against the Lessor. The Lessor nevertheless agrees that it
will promptly take all action as may be necessary to discharge any
Lessor Liens on any part of any Property.
(b) The Lessor agrees that it will not manage, control, use,
sell, dispose of or otherwise deal with any Property or any other part
of the Borrower's Interest except (a) as required by the terms of the
Operative Agreements, (b) in accordance with the powers granted to, or
the authority conferred upon, it pursuant to the Operative Agreements
or (c) in accordance with the express terms hereof and with written
instructions from all the Primary Financing Parties and/or the Majority
Secured Parties, as applicable, pursuant to Section 8.6.
(c) Except in accordance with written instructions furnished
pursuant to an applicable provision of the Operative Agreements
(expressly cited in such instructions), and without limitation of the
generality of Section 8.9(a), the Lessor shall not have any duty to (i)
file, record or deposit any Operative Agreement or any other document,
or to maintain any such filing, recording or deposit or to refile,
rerecord or redeposit any such document; (ii) obtain insurance on any
Property or effect or maintain any such insurance, other than to
receive and forward to each Primary Financing Party and the Agent any
notices, policies, certificates or binders furnished to the Lessor
pursuant to the Lease; (iii) maintain any Property; (iv) pay or
discharge any Tax or any Lien owing with respect to or assessed or
levied against any part of the Borrower's Interest, except as provided
in the last sentence of Section 8.9(a), other than to forward notice of
such Tax or Lien
43
received by the Lessor to each Primary Financing Party and the Agent;
(v) confirm, verify, investigate or inquire into the failure to receive
any reports or financial statements of Lessee or any other Person; (vi)
inspect any Property at any time or ascertain or inquire as to the
performance or observance of any of the covenants of Lessee or any
other Person under any Operative Agreement with respect to any
Property; or (vii) manage, control, use, sell, dispose of or otherwise
deal with any Property or any part thereof or any other part of the
Borrower's Interest, except as provided in Section 8.9(b).
(d) The Lessor, in the exercise or administration of its
powers pursuant to the Operative Agreements, may, at the expense and,
so long as no Default or Event of Default shall have occurred and be
continuing, with the consent of Lessee employ agents, attorneys,
accountants, and auditors and enter into agreements with any of them
and the Lessor shall not be liable for the default or misconduct of any
such agents, attorneys, accountants or auditors if such agents,
attorneys, accountants or auditors shall have been selected by it with
reasonable care.
18.10. NO REPRESENTATIONS OR WARRANTIES AS TO ANY PROPERTY OR THE
OPERATIVE AGREEMENTS.
THE LESSOR MAKES (i) NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR
IMPLIED, AS TO THE TITLE, VALUE, USE, CONDITION, DESIGN, OPERATION,
MERCHANTABILITY OR FITNESS FOR USE OF ANY PROPERTY (OR ANY PART THEREOF), OR ANY
OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY PROPERTY (OR ANY PART THEREOF) AND THE LESSOR SHALL NOT BE LIABLE
FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF ANY PROPERTY,
OR ANY PART THEREOF, TO COMPLY WITH ANY LEGAL REQUIREMENT EXCEPT AS EXPRESSLY
SET FORTH IN THE OPERATIVE AGREEMENTS, INCLUDING SECTION 6.1(L) HEREOF, AND (II)
NO REPRESENTATION OR WARRANTY AS TO THE VALIDITY OR ENFORCEABILITY OF ANY
OPERATIVE AGREEMENT AS AGAINST ANY PERSON OTHER THAN THE LESSOR OR AS TO THE
CORRECTNESS OF ANY STATEMENT MADE BY A PERSON OTHER THAN THE LESSOR CONTAINED IN
ANY THEREOF.
18.11. RELIANCE; ADVICE OF COUNSEL.
The Lessor shall not incur any liability to any Person in acting upon
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper reasonably
believed by it to be genuine and believed by it in good faith to be signed by
the proper party or parties. The Lessor may accept and rely upon a certified
copy of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the manner of ascertainment of which is not specifically
prescribed herein, the Lessor may for all purposes of the Operative Agreements
rely on an Officer's Certificate of the relevant party, as to such fact or
matter, and such certificate shall constitute full protection to the Lessor for
any action taken or omitted to be taken by it
44
reasonably in good faith in reliance thereon. In the administration of the
Lessor's duties, the Lessor may execute and perform its powers and duties
directly or through agents or attorneys and may consult with counsel,
accountants and other skilled Persons to be selected and employed by it, and the
Lessor shall not be liable for anything done, suffered or omitted reasonably in
good faith by it in accordance with the advice or opinion of any such counsel,
accountants or other skilled Persons and not contrary to the Operative
Agreements.
18.12. NON-DISTURBANCE.
In the event of a foreclosure under any Security Document (other than
the Lease), upon the occurrence of an Event of Default, so long as there shall
then exist no Lease Event of Default, the Primary Financing Parties agree, for
themselves and their respective successors and assigns, that neither the
leasehold interest, right of possession nor use and enjoyment of the Properties
by Lessee under the Lease shall be extinguished or terminated by reason of such
foreclosure, but rather the Lease shall continue in full force and effect and in
all cases subject to Section 10.1(d) hereof, the Lease shall automatically and
unconditionally become a direct lease between the Primary Financing Parties or
any successor thereto, as lessor as if such Primary Financing Parties or
successor were the Lessor originally named in the Lease, and Lessee.
18.13. PAYMENT OF APPRAISER EXPENSES.
Notwithstanding any provision in any Operative Agreement to the
contrary, each of the Primary Financing Parties hereby agrees to pay its ratable
share (based on such Primary Financing Party's pro rata share of the aggregate
amount then outstanding under the Financing) of the fees or expenses of any
appraiser otherwise payable by the Lessor pursuant to Section 22.4 of the Lease.
SECTION 8A. AFFIRMATIVE COVENANTS OF THE CREDIT PARTIES
The Credit Parties hereby covenant and agree that on the Initial
Closing Date, and thereafter for so long as any Operative Agreement is in effect
and until the Commitments have terminated, the Loans and the Lessor Advances are
paid in full, all amounts accrued or due and owing from any Credit Party
pursuant to any Operative Agreement have been paid in full and the Liens
evidenced by the Security Documents have been released, each Credit Party shall,
and shall cause each of the GCA Subsidiaries (other than in the case of Sections
8A.1, 8A.2 or 8A.7 hereof), to:
8A.1. FINANCIAL STATEMENTS.
Furnish to the Agent and each of the Primary Financing Parties:
(a) As soon as available, but in any event within ninety (90)
days after the end of each fiscal year of the Parent, a copy of the
consolidated balance sheet of the Parent and its consolidated
subsidiaries as at the end of such fiscal year and the related
consolidated and consolidating statements of income and retained
earnings and of
45
consolidated cash flows of the Parent and its consolidated subsidiaries
for such year which, other than in the case of the consolidating
statements, shall be audited by a firm of independent certified public
accountants of nationally recognized standing reasonably acceptable to
the Primary Financing Parties, setting forth in each case in
comparative form the figures for the previous year, reported on without
a "going concern" or like qualification or exception, or qualification
indicating that the scope of the audit was inadequate to permit such
independent certified public accountants to certify such financial
statements without such qualification;
(b) As soon as available and in any event within forty-five
(45) days after the end of each of the first three fiscal quarters of
the Parent, a copy of the unaudited consolidated balance sheet of the
Parent and its consolidated subsidiaries as at the end of such period
and related consolidated and consolidating statements of income and
retained earnings and of consolidated cash flows for the Parent and its
consolidated subsidiaries for such quarterly period and for the portion
of the fiscal year ending with such period, in each case setting forth
in comparative form consolidated figures for the corresponding period
or periods of the preceding fiscal year (subject to normal recurring
year-end audit adjustments);
(c) As soon as available, but in any event within fifteen (15)
days prior to the end of each fiscal year, a copy of the detailed
annual operating budget or plan including cash flow projections of the
Parent and its subsidiaries for the next four fiscal quarter period
prepared on a quarterly basis, in form and detail reasonably acceptable
to the Agent and the Primary Financing Parties, together with a summary
of the material assumptions made in the preparation of such annual
budget or plan;
all such financial statements to be complete and correct in all material
respects (subject, in the case of interim statements, to normal recurring
year-end audit adjustments) and to be prepared in reasonable detail and, in the
case of the annual and quarterly financial statements provided in accordance
with subsections (a) and (b) above, in accordance with GAAP applied consistently
throughout the periods reflected therein and further accompanied by a
description of, and an estimation of the effect on the financial statements on
account of, a change, if any, in the application of accounting principles as
provided in Section (n) of the rules of usage in Appendix A hereto.
The Parent shall deliver to the Agent and each Primary Financing Party
at the same time as the delivery of any annual or quarterly financial statements
given in accordance with the provisions of Section 8A.1, (i) a description in
reasonable detail of any material change in the application of accounting
principles employed in the preparation of such financial statements from those
applied in the most recently preceding quarterly or annual financial statements
as to which no objection shall have been made in accordance with the provisions
above and (ii) a reasonable estimate of the effect on the financial statements
on account of such changes in application.
46
8A.2. CERTIFICATES; OTHER INFORMATION.
Furnish to the Agent and each of the Primary Financing Parties:
(a) concurrently with the delivery of the financial statements
referred to in Section 8A.1 above, a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified in
such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 8A.1(a) and 8A.1(b) above, a certificate of a
Responsible Officer stating that, to the best of such Responsible
Officer's knowledge, each of the GCA Credit Parties during such period
observed or performed in all material respects all of its covenants and
other agreements, and satisfied in all material respects every
condition, contained in the Operative Agreements to be observed,
performed or satisfied by it, and that such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as
specified in such certificate and such certificate shall include the
calculations in reasonable detail required to indicate compliance with
Section 8A.9 as of the last day of such period;
(c) within thirty (30) days after the same are provided,
make available by electronic mail or by posting on the Parent's website
copies of all reports (other than those otherwise provided pursuant to
Section 8A.1 and those which are of a promotional nature) and other
financial information which the Parent sends to its stockholders, and
within thirty days after the same are filed, copies of all financial
statements and non-confidential reports which the Parent may make to,
or file with the Securities and Exchange Commission or any successor or
analogous Governmental Authority;
(d) within ninety (90) days after the end of each fiscal year
of the Parent, a certificate containing information regarding the
amount of all (i) Debt Issuances outstanding at the end of the prior
fiscal year and (ii) Equity Issuances that were made during the prior
fiscal year;
(e) promptly upon receipt thereof, a copy of any other report
or "management letter" submitted by independent accountants to the
Parent or any of its GCA Subsidiaries in connection with any annual,
interim or special audit of the books of such Person; and
(f) promptly, such other documents or other information as the
Agent, on behalf of any Primary Financing Party, may from time to time
reasonably request.
8A.3. PAYMENT OF OBLIGATIONS.
(a) Perform all of its obligations under each contract to
which it is a party, if a failure to so perform could reasonably be
expected to have a GCA Material Adverse Effect.
47
(b) Pay and perform all of its obligations under the Operative
Agreements and pay and perform (i) all taxes, assessments and other
governmental charges that may be levied or assessed upon it or any GCA
Property, which if not paid or performed could reasonably be expected
to have a GCA Material Adverse Effect and (ii) all other indebtedness,
obligations and liabilities in accordance with customary trade
practices, which if not paid would have a GCA Material Adverse Effect;
provided that it may contest any tax, assessment or other governmental
charge in good faith so long as adequate reserves are maintained with
respect thereto in accordance with GAAP.
8A.4. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
Continue to engage in business of the same general type as conducted by
it on the Closing Date and preserve and maintain its corporate existence and all
rights, franchises, licenses and privileges necessary to the conduct of its
business, and qualify and remain qualified as a foreign corporation (or
partnership, limited liability company or other such similar entity, as the case
may be) and authorized to do business in each jurisdiction in which the failure
to so qualify could reasonably be expected to have a GCA Material Adverse Effect
and shall maintain all licenses, permits and registrations necessary for the
conduct of its operations.
8A.5. MAINTENANCE OF GCA PROPERTY; INSURANCE.
(a) Keep all material property useful and necessary in its
business in good working order and condition (ordinary wear and tear
and obsolescence excepted); and
(b) Maintain with financially sound and reputable insurance
companies insurance on all its material property in at least such
amounts and against at least such risks as are usually insured against
in the same general area by companies engaged in the same or a similar
business; and furnish to the Agent, upon written request, full
information as to the insurance carried; provided, however, that the
Parent and the GCA Subsidiaries may maintain self insurance plans
(including wholly-owned captive insurance company coverage) to the
extent companies of similar size and in similar businesses do so.
8A.6. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its businesses and
activities; and permit, upon at least five (5) Business Days notice from the
Agent (or, if a Default or Event of Default shall have occurred and be
continuing, upon at least one (1) Business Days notice from the Agent),
representatives of the Agent or any Primary Financing Party, from time to time,
to visit and inspect its properties and to inspect, audit and make extracts from
its books, records and files, including without limitation management letters
prepared by independent accountants and to discuss with its principal officers,
and its independent accountants, its business, assets, liabilities, financial
condition, results of operations and business prospects.
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8A.7. NOTICES.
Give notice in writing to the Agent (which shall promptly transmit such
notice to each Primary Financing Party) of:
(a) promptly, but in any event within two (2) Business Days
after the Parent knows or has reason to know thereof, the occurrence of
any Default or Event of Default;
(b) promptly and in any event within five (5) Business Days
after the Parent knows or has reason to know thereof, the commencement
of any (i) Material Proceeding, (ii) loss of or damage to any assets of
the Parent or any GCA Subsidiary that likely will result in a GCA
Material Adverse Effect and (iii) in addition other notice provisions
in the Operative Agreements regarding environmental matters,
litigation, investigation or proceeding involving an environmental
claim or potential liability under Environmental Laws in excess of
$10,000,000;
(c) promptly and in any event within five (5) Business Days
after the Parent knows or has reason to know thereof, default by Parent
or any GCA Subsidiary under any note, indenture, loan agreement,
mortgage or other similar agreement to which the Parent or any GCA
Subsidiary is a party or by which the Parent or any GCA Subsidiary is
bound, which relates to borrowed money, or of any other default under
any other note, indenture, loan agreement, mortgage or other similar
agreement to which the Parent or any GCA Subsidiary is a party or by
which the Parent or any GCA Subsidiary is bound if such other default
may result in a GCA Material Adverse Effect;
(d) promptly and in any event within thirty (30) days after
the Parent knows or has reason to know thereof: (i) the occurrence or
expected occurrence of any material Reportable Event with respect to
any Plan, a failure to make any required contribution to a Plan, the
creation of any GCA Lien in favor of the PBGC (other than a GCA
Permitted Lien) or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the
PBGC or the Parent or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Plan; and
(e) promptly and in any event within three (3) Business Days
after the Parent knows or has reason to know thereof, any other
development or event which could reasonably be expected to have a GCA
Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Parent proposes to take with respect thereto. In the
case of any notice of a Default or Event of Default, the Parent shall specify
that such notice is a Default or Event of Default notice on the face thereof.
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8A.8. ENVIRONMENTAL LAWS.
(a) Comply in all material respects with, and ensure
compliance in all material respects by all tenants and subtenants, if
any, with, all applicable Environmental Laws and obtain and comply in
all material respects with and maintain, and ensure that all tenants
and subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations
or permits required by applicable Environmental Laws except to the
extent that failure to do so could not reasonably be expected to have a
GCA Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with
all lawful orders and directives of all Governmental Authorities
regarding Environmental Laws except to the extent that the same are
being contested in good faith by appropriate proceedings and the
pendency of such proceedings could not reasonably be expected to have a
GCA Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Agent and the
Primary Financing Parties, and their respective employees, agents,
officers and directors, from and against any and all claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature known or unknown, contingent or otherwise,
arising out of, or in any way relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable
to the operations of the Parent, any of the GCA Subsidiaries or the GCA
Properties, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable
attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the
extent that any of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification therefor. The
agreements in this paragraph shall survive repayment of the Notes,
Lessor Advances and all other amounts payable under the Operative
Agreements.
8A.9. FINANCIAL COVENANTS.
Commencing on the day immediately following the Closing Date, the
Credit Parties shall comply with the following financial covenants:
(a) The Consolidated Leverage Ratio, as of the last day of
each fiscal quarter of the Consolidated Group shall be less than or
equal to 2.0 to 1.0.
(b) The Consolidated Fixed Charge Coverage Ratio, as of the
last day of each fiscal quarter of the Consolidated Group shall be
greater than or equal to 1.2 to 1.0.
Notwithstanding anything herein to the contrary, the parties hereto
acknowledge and agree that, for purposes of all calculations made in determining
compliance for any applicable period
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with the financial covenants set forth in this Section 8A.9, (i) after
consummation of any Permitted Acquisition, including the Acquisition, (A) income
statement items and other balance sheet items (whether positive or negative)
attributable to the Target acquired in such transaction shall be included in
such calculations to the extent relating to such applicable period, subject to
adjustments acceptable to the Agent in its sole discretion, and (B) Indebtedness
of a Target which is retired in connection with a Permitted Acquisition shall be
excluded from such calculations and deemed to have been retired as of the first
day of such applicable period and (ii) after consummation of any disposition of
GCA Property permitted by Section 8B.4(a)(i), (ii) and (v), (A) income statement
items and other balance sheet items (whether positive or negative) attributable
to the GCA Property disposed of shall be excluded in such calculations to the
extent relating to such applicable period, subject to adjustments acceptable to
the Agent in its sole discretion, and (B) Indebtedness of the Target which is
retired in connection with such Asset Disposition shall be excluded from such
calculations and deemed to have been retired as of the first day of such
applicable period.
8A.10. ADDITIONAL SUBSIDIARY GUARANTORS.
The Credit Parties will cause each of their Domestic GCA Subsidiaries,
whether newly formed, after acquired or otherwise existing, to promptly (but in
any event within 10 days) become a Guarantor hereunder by way of execution of a
Joinder Agreement.
8A.11. COMPLIANCE WITH LAW.
To the extent failure to do so would have a GCA Material Adverse
Effect, each Credit Party will, and will cause each of its GCA Subsidiaries to
(a) observe and remain in compliance with all applicable Requirements of Law and
maintain in full force and effect all permits, authorizations, registrations and
consents from any Governmental Authority, in each case applicable to the conduct
of its business, and (b) keep in full force and effect all licenses,
certifications or accreditations necessary for any GCA Property to carry on its
business.
8A.12. POST-CLOSING REQUIREMENT.
As soon as practicable, but in any event within 45 days of the Initial
Closing Date, the Parent shall have provided to the Agent and each Primary
Financing Party copies of the audited consolidated financial statements of the
Acquired Company and its subsidiaries for fiscal year 2002, consisting of
balance sheets and the related consolidated and consolidating statements of
income, stockholders' equity and cash flows for such period.
SECTION 8B. NEGATIVE COVENANTS OF THE CREDIT PARTIES
The Credit Parties hereby covenant and agree that on the Closing Date,
and thereafter for so long as any Operative Agreement is in effect and until the
Commitments have terminated, the Loans and the Lessor Advances are paid in full,
all amounts accrued or due and owing from any Credit Party pursuant to any
Operative Agreements have been paid in full and the Liens evidenced by the
Security Documents have been released, that:
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8B.1. INDEBTEDNESS.
The Parent will not, nor will it permit any GCA Subsidiary to,
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising or existing under the Guarantor
Credit Agreement and the other GCA Credit Documents;
(b) Indebtedness of the Parent and the GCA Subsidiaries
existing as of the Closing Date as referenced in the financial
statements referenced in Section 6.3(a) (and set out more specifically
in Schedule 6) hereto and renewals, refinancings or extensions thereof
in a principal amount not in excess of that outstanding as of the date
of such renewal, refinancing or extension;
(c) Indebtedness of the Parent and the GCA Subsidiaries
incurred after the Closing Date consisting of Capital Leases or
Indebtedness incurred to provide all or a portion of the purchase price
or cost of construction of an asset provided that (i) such Indebtedness
when incurred shall not exceed the purchase price or cost of
construction of such asset; (ii) no such Indebtedness shall be
refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing; and (iii) the
total amount of all such Indebtedness shall not exceed $25,000,000 at
any time outstanding;
(d) Unsecured intercompany Indebtedness (i) among the Credit
Parties, (ii) among Foreign GCA Subsidiaries, (iii) owing from domestic
subsidiaries of the Parent that are not guarantors to Credit Parties,
which Indebtedness is solely for the purpose of purchasing third party
debt obligations; provided, that the aggregate amount of Indebtedness
incurred pursuant to this clause (iii), together with the aggregate
amount of investments and loans made pursuant to clause (iv) of the
definition of Permitted Investments, shall not exceed $25,000,000 at
any time outstanding and (iv) owing from domestic subsidiaries of the
Parent that are not guarantors to Credit Parties (other than
Indebtedness incurred pursuant to clause (iii) above); provided, that
the aggregate amount of Indebtedness incurred pursuant to this clause
(iv), together with the aggregate amount of investments and loans made
pursuant to clause (v) of the definition of Permitted Investments,
shall not exceed $5,000,000 at any time outstanding;
(e) Secured intercompany Indebtedness among the Parent and the
GCA Subsidiaries in an amount not to exceed $25,000,000 in the
aggregate at any time outstanding; provided that, to the extent a
Credit Party and a Subsidiary that is not a Credit Party are parties to
such intercompany Indebtedness arrangement, such Credit Party shall be
the secured party;
(f) Indebtedness and obligations owing under Hedging
Agreements relating to the loans pursuant to the Guarantor Credit
Agreement and other Hedging Agreements
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entered into in order to manage existing or anticipated interest rate,
exchange rate or commodity price risks and not for speculative
purposes;
(g) Indebtedness and obligations of GCA Credit Parties owing
under documentary letters of credit for the purchase of goods or other
merchandise (but not under standby, direct pay or other letters of
credit except for the Letters of Credit hereunder) generally in an
aggregate amount not to exceed $25,000,000 at any time outstanding;
(h) Guaranty Obligations in respect of Indebtedness of a GCA
Credit Party to the extent such Indebtedness is permitted to exist or
be incurred pursuant to this Section 8B.1;
(i) Indebtedness of the Parent and the GCA Subsidiaries
arising under any Synthetic Leases (other than Indebtedness under the
Operative Agreements set out on Schedule 6 that is pari passu with or
subordinated to the GCA Credit Party Obligations in an amount not to
exceed $25,000,000 in the aggregate at any time outstanding;
(j) Indebtedness of the Parent and the GCA Subsidiaries
consisting of unsecured earnout obligations incurred in connection with
Permitted Acquisitions in an amount not to exceed $25,000,000 in the
aggregate at any time outstanding;
(k) Indebtedness (other than Synthetic Leases) of the Borrower
and its Subsidiaries that is pari passu with the Credit Party
obligations which does not exceed $50,000,000 in the aggregate at any
time outstanding; and
(l) other Indebtedness of the Parent and the GCA Subsidiaries
provided that such Indebtedness is non-recourse to the Parent and the
GCA Subsidiaries and does not exceed $100,000,000 in the aggregate at
any time outstanding.
8B.2. GCA LIENS.
The Parent will not, nor will it permit any GCA Subsidiary to,
contract, create, incur, assume or permit to exist any GCA Lien with respect to
any of its property or assets of any kind (whether real or personal, tangible or
intangible), whether now owned or hereafter acquired, except for GCA Permitted
Liens.
8B.3. NATURE OF BUSINESS.
The Parent will not, nor will it permit any GCA Subsidiary to, alter
the character of its business in any material respect from that conducted as of
the Closing Date.
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8B.4. CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, ETC.
The Parent will not, nor will it permit any GCA Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, sell,
transfer, lease or otherwise dispose of its property or assets or agree
to do so at a future time except the following, without duplication,
shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition
of property or assets (A) to an unrelated party not in the
ordinary course of business (other than Specified Sales),
where and to the extent that they are the result of a Recovery
Event or (B) the sale, lease, transfer or other disposition of
machinery, parts and equipment no longer used or useful in the
conduct of the business of the Parent or any of the GCA
Subsidiaries, as appropriate, in its reasonable discretion, so
long as and the net proceeds therefrom are used to repair or
replace damaged property or to purchase or otherwise acquire
new assets or property, provided that such purchase or
acquisition is committed to within 180 days of receipt of the
net proceeds and such purchase or acquisition is consummated
within 270 days of receipt of such proceeds;
(iii) the sale, lease or transfer of property or
assets (at fair market value) from the Parent to any other GCA
Credit Party;
(iv) the sale, lease or transfer of property or
assets from a Credit Party other than the Parent to another
Credit Party; and
(v) the sale, lease or transfer of property or assets
(at fair market value) not to exceed $10,000,000 in the
aggregate in any fiscal year;
provided, that with respect to sales of assets permitted hereunder
only, the Agent shall be entitled, without the consent of the Primary
Financing Parties, to release its GCA Liens relating to the particular
assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single
transaction or a series of related transactions) the GCA Property or
assets of any Person (other than purchases or other acquisitions of
inventory, leases, materials, GCA Property and equipment in the
ordinary course of business, except as otherwise limited or prohibited
herein) or (ii) enter into any transaction of merger or consolidation,
except for (A) investments or acquisitions (including Permitted
Acquisitions) permitted pursuant to Section 8B.5, and (B) the merger or
consolidation of a GCA Credit Party with and into another GCA Credit
Party, provided that if the Parent is a party thereto, the Parent will
be the surviving corporation.
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8B.5. ADVANCES, INVESTMENTS AND LOANS.
The Parent will not, nor will it permit any GCA Subsidiary to, lend
money or extend credit or make advances to any Person, or purchase or acquire
any stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any Person except for Permitted Investments.
8B.6. TRANSACTIONS WITH GCA AFFILIATES.
The Parent will not, nor will it permit any GCA Subsidiary to, enter
into any transaction or series of transactions, whether or not in the ordinary
course of business, with any officer, director, shareholder or GCA Affiliate
other than on terms and conditions substantially as favorable as would be
obtainable in a comparable arm's-length transaction with a Person other than an
officer, director, shareholder or GCA Affiliate.
8B.7. OWNERSHIP OF SUBSIDIARIES; RESTRICTIONS.
The Parent will not, nor will it permit any GCA Subsidiary to, create,
form or acquire any Subsidiaries, except for (a) Domestic GCA Subsidiaries which
are joined as Additional Credit Parties in accordance with the terms hereof and
(b) Foreign GCA Subsidiaries so long as the Capital Stock of such first-tier
Foreign GCA Subsidiaries are pledged to the agent under the Guarantor Credit
Agreement, for the benefit of the GCA Lenders, pursuant to the terms of the
Pledge Agreement. The Parent will not sell, transfer, pledge or otherwise
dispose of any Capital Stock or other equity interests in any of the GCA
Subsidiaries, nor will it permit any of the GCA Subsidiaries to issue, sell,
transfer, pledge or otherwise dispose of any of their Capital Stock or other
equity interests, except in a transaction permitted by Section 8B.4. The Parent
shall not, and shall not permit any of the GCA Subsidiaries to, amend, modify or
change its shareholders' agreements and other equity-related documents
(excluding amendments to stock option plan documents) in any material respect
without the prior written consent of the Primary Financing Parties.
8B.8. FISCAL YEAR; ORGANIZATIONAL DOCUMENTS; MATERIAL AGREEMENTS.
The Parent will not, nor will it permit any of the GCA Subsidiaries to,
change their fiscal year. The Parent will not, nor will it permit any GCA
Subsidiary to, amend, modify or change their articles of incorporation (or
corporate charter or other similar organizational document) or bylaws (or other
similar document) in any material respect or in any respect adverse to the
interests of the Primary Financing Parties without the prior written consent of
the Primary Financing Parties. The Parent will not, nor will it permit any of
the GCA Subsidiaries to, without the prior written consent of the Agent and the
Primary Financing Parties, amend, modify, cancel or terminate or fail to renew
or extend or permit the amendment, modification, cancellation or termination by
the Parent or any of the GCA Subsidiaries of any of the Material Agreements,
except in the event that such amendments, modifications, cancellations or
terminations could not reasonably be expected to have a GCA Material Adverse
Effect.
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8B.9. LIMITATION ON RESTRICTED ACTIONS.
The Parent will not, nor will it permit any GCA Subsidiary to, directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any such Person to (a) pay
dividends or make any other distributions to any Credit Party on its Capital
Stock or with respect to any other interest or participation in, or measured by,
its profits, (b) pay any Indebtedness or other obligation owed to any Credit
Party, (c) make loans or advances to any Credit Party, (d) sell, lease or
transfer any of its GCA Properties or assets to any Credit Party, or (e) act as
a Parent and pledge its assets pursuant to the Operative Agreements or any
renewals, refinancings, exchanges, refundings or extension thereof, except (in
respect of any of the matters referred to in clauses (a)-(d) above) for such
encumbrances or restrictions existing under or by reason of (i) this
Participation Agreement and the other Operative Agreements, (ii) applicable law,
(iii) any document or instrument governing Indebtedness incurred pursuant to
Section 8B.1(c), provided that any such restriction contained therein relates
only to the asset or assets constructed or acquired in connection therewith or
(iv) any GCA Permitted Lien or any document or instrument governing any GCA
Permitted Lien, provided that any such restriction contained therein relates
only to the asset or assets subject to such GCA Permitted Lien.
8B.10. RESTRICTED PAYMENTS.
Each of the GCA Credit Parties will not, nor will it permit any GCA
Subsidiary to, directly or indirectly, declare, order, make or set apart any sum
for or pay any Restricted Payment, except (a) to make dividends payable solely
in the common stock or equivalent equity interests of such Person and (b) to
make dividends or other distributions payable to the Parent or any wholly owned
GCA Subsidiary of the Parent that is a Credit Party (directly or indirectly
through GCA Subsidiaries).
8B.11. PREPAYMENTS OF SUBORDINATED INDEBTEDNESS, ETC.
The Parent will not, nor will it permit any GCA Subsidiary to, after
the issuance thereof, amend or modify (or permit the amendment or modification
of) any of the terms of any Subordinated Debt if such amendment or modification
would add or change any terms in a manner adverse to the interests of the
Primary Financing Parties or the issuer of such Subordinated Debt, or shorten
the final maturity or average life to maturity or require any payment to be made
sooner than originally scheduled or increase the interest rate applicable
thereto or change any subordination provision thereof.
8B.12. SALE LEASEBACKS.
The Parent will not, nor will it permit any GCA Subsidiary to, directly
or indirectly, become or remain liable as lessee or as guarantor or other surety
with respect to any lease, whether an operating lease or a Capital Lease, of any
GCA Property (whether real, personal or mixed), whether now owned or hereafter
acquired in excess of $10,000,000 in the aggregate on an annual basis, (a) which
the Parent or any GCA Subsidiary has sold or transferred or is to sell or
transfer to a Person which is not the Parent or any GCA Subsidiary or (b) which
the Parent or
56
any GCA Subsidiary intends to use for substantially the same purpose as any
other GCA Property which has been sold or is to be sold or transferred by the
Parent or any GCA Subsidiary to another Person which is not the Parent or any
GCA Subsidiary in connection with such lease.
8B.13. NO FURTHER NEGATIVE PLEDGES.
The Parent will not, nor will it permit any GCA Subsidiary to, enter
into, assume or become subject to any agreement prohibiting or otherwise
restricting the creation or assumption of any GCA Lien upon its GCA Properties
or assets, whether now owned or hereafter acquired, or requiring the grant of
any security for such obligation if security is given for some other obligation,
except (a) pursuant to this Participation Agreement and the other Operative
Agreements, (b) pursuant to any document or instrument governing Indebtedness
incurred pursuant to Section 8B.1(c), provided that any such restriction
contained therein relates only to the asset or assets constructed or acquired in
connection therewith and (c) in connection with any GCA Permitted Lien or any
document or instrument governing any GCA Permitted Lien, provided that any such
restriction contained therein relates only to the asset or assets subject to
such GCA Permitted Lien.
SECTION 9. CREDIT AGREEMENT AND LESSOR ADVANCES.
Notwithstanding anything to the contrary contained in the Credit
Agreement or any other Operative Agreement, the Agent, the Lenders, the Credit
Parties and the Borrower hereby agree that, unless a Default or Event of Default
has occurred and is continuing, the Lessee shall have the following rights:
(a) the right to designate an account to which Lessor Advances
and Loans funded under the Operative Agreements shall be credited;
(b) the right to terminate or reduce the Lender Commitments
pursuant to Section 2.5(a) of the Credit Agreement, and the right to
terminate the Lessor Commitments;
(c) the right to exercise the conversion and continuation
options pursuant to Section 2.7 of the Credit Agreement and Section
5B.5 of this Agreement;
(d) the right to receive any notice and any certificate in
each case issued pursuant to Section 2.11(a) of the Credit Agreement;
(e) the right to replace any Lender pursuant to Section
2.11(b) of the Credit Agreement;
(f) the right to approve any successor agent pursuant to
Section 8.6 of this Agreement;
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(g) the right to consent to any assignment by a Lender to
which the Lessor has the right to consent pursuant to Section 9.8 of
the Credit Agreement; and
(h) the right to perform the obligations of the Borrower
pursuant to the Credit Agreement.
SECTION 20. TRANSFER OF INTEREST.
20.1. RESTRICTIONS ON TRANSFER.
(a) Each Lender may participate, assign or transfer all or a
portion of its interest hereunder and under the other Operative
Agreements in accordance with Sections 9.7 and 9.8 of the Credit
Agreement; provided, each participant, assignee or transferee must
obtain the same ratable interest in Loans and Lender Commitments;
provided, further, that each Lender that participates, assigns or
transfers all or a portion of its interest hereunder and under the
other Operative Agreements shall deliver to the Agent a copy of each
Assignment and Acceptance (as referenced in Section 9.8 of the Credit
Agreement) for purposes of maintaining the Register. The Lessor may,
subject to the rights of the Lessee under the Lease and the other
Operative Agreements and to the Lien of the applicable Security
Documents, directly or indirectly, assign, convey, appoint an agent
with respect to enforcement of, or otherwise transfer any of its right,
title or interest in or to any Property, the Lease and the other
Operative Agreements (including without limitation any right to
indemnification thereunder), or any other document relating to a
Property or any interest in a Property as provided in the Lease to any
Eligible Lessor (i) if at any time the Lessor deems it necessary or
appropriate under applicable Law or pursuant to the direction or
recommendation of any Government Authority or (ii) for any other
reason, but, with respect to this clause (ii), only with the prior
written consent of the Agent (not to be unreasonably withheld or
delayed) and (provided, no Default or Event of Default has occurred and
is continuing) with the consent of the Lessee (not to be unreasonably
withheld or delayed). Each Eligible Lessor who receives any right,
title or interest of the Lessor with respect to the Operative
Agreements shall provide the documentation required and otherwise
comply with Section 9.8(c) of the Credit Agreement, mutatis mutandis,
as if such Eligible Lessor was a Purchasing Lender thereunder. The
provisions of the immediately preceding sentence shall not apply to the
obligations of the Lessor to transfer Property to the Lessee or a third
party purchaser pursuant to Article XXII of the Lease upon payment for
such Property in accordance with the terms and conditions of the Lease.
The Lessee may not assign any of the Operative Agreements or any of its
rights or obligations thereunder or with respect to any Property in
whole or in part to any Person without the prior written consent of the
Agent and the Primary Financing Parties.
(b) Notwithstanding anything to the contrary in Section
10.1(a), no consent shall be required from the Agent, the Lessee or any
Primary Financing Party (but Lessor shall provide one hundred eighty
(180) days (or such shorter period as required by the Legal Requirement
giving rise to the assignment, conveyance, appointment or transfer
58
contemplated by this Section 10.1(b)) written notice to the Agent and
the Lessee) in connection with any assignment, conveyance, appointment
or transfer by the Lessor required by any Legal Requirement of all or
any of its right, title or interest in or to the Properties, the Lease
and the other Operative Agreements (including without limitation any
right to indemnification thereunder), or any other document relating to
the Properties or any interest in the Properties as provided in the
Lease to an Eligible Lessor; provided, in such case, so long as no
Default or Event of Default shall have occurred and be continuing,
Lessee shall have the right to require the Lessor (unless such transfer
or conveyance has already occurred, in which case the Lessee shall have
the right to require such transferee) to transfer its interest to an
Eligible Lessor selected by the Lessee, in its reasonable discretion;
provided, further, Lessee shall be responsible for any cost or expense
incurred by the Lessor in connection with any assignment, conveyance,
appointment or transfer by the Lessor pursuant to this Section 10.1(b).
(c) The Lessee agrees to indemnify the Lessor for any loss,
claim or increased costs incurred by the Lessor and quantified to
Lessee in writing by Lessor in reasonable detail as a result of any
change in GAAP that adversely affects the Lessor; provided, however, in
the case of such a change in GAAP that adversely affects the Lessor, as
long as no Default or Event of Default shall have occurred and be
continuing, Lessee shall have the right to require the Lessor to
transfer its interest to an Eligible Lessor selected by the Lessee, in
its reasonable discretion; provided, further, nothing in the preceding
proviso shall limit the obligation of the Lessee to provide the
indemnity set forth in this Section 10.1(c).
(d) Upon the occurrence and during the continuance of an Event
of Default by the Lessor, the Lessee shall have the right to require
the Lessor to transfer its interest in the Properties and the Operative
Agreements to an Eligible Lessor selected by the Lessee, in its
reasonable discretion.
20.2. EFFECT OF TRANSFER.
From and after any transfer effected in accordance with this Section
10, the transferor shall be released, to the extent of such transfer, from its
liability hereunder and under the other documents to which it is a party in
respect of obligations to be performed on or after the date of such transfer;
provided, however, that any transferor shall remain liable hereunder and under
such other documents to the extent that the transferee shall not have assumed
the obligations of the transferor thereunder. Upon any transfer by the Lessor or
any other Primary Financing Party as above provided, any such transferee shall
assume the obligations of the Lessor or such Primary Financing Party, as the
case may be, and shall be deemed the "Lessor" and/or a "Primary Financing
Party", as the case may be, for all purposes of such documents and each
reference herein to the transferor shall thereafter be deemed a reference to
such transferee for all purposes, except as provided in the preceding sentence.
Notwithstanding any transfer of all or a portion of the transferor's interest as
provided in this Section 10, the transferor shall be entitled to all benefits
accrued and all rights vested prior to such transfer including without
limitation rights to indemnification under any such document.
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20.3. SPECIAL TRANSFER BY LESSOR.
Without limiting any of the rights of the Lessor provided herein or in
any other Operative Agreement, in the event the Lessor desires to assign any
portion of its interest in the Lessor Advance, the Lessor may, in its sole
discretion, but subject to the provisions of this Section 10.3, convert any
portion of the Lessor Advance into Loans by providing the Agent and the Lessee
with written notice of such conversion at least one (1) Business Day prior to
the effectiveness thereof, provided, at all times during the Term, the Lessor
shall maintain at least twelve percent (12%) of the aggregate Property Cost for
all Properties as a Lessor Advance. In the event the Lessor converts any portion
of the Lessor Advance to Loans, the Lessor Commitment and the Lender Commitments
(as set forth in Schedule 2.1 to the Credit Agreement), even though such may
have been terminated prior to the effectiveness of the conversion and such
conversion shall not reinstate any of the Commitments, shall be deemed to be
adjusted and the applicable provisions of the Operative Agreements, including
without limitation provisions referencing the percentage of Property Cost funded
as a Loan or Lessor Advance, Schedule 2.1 to the Credit Agreement, the
definition of Lessor Commitment and each similar provision of the Operative
Agreements which would be affected by the conversion contemplated by this
Section 10.3, shall be deemed amended to reference the appropriate amounts after
the conversion. Each of the parties hereto agrees that (a) as of the date of any
conversion pursuant to this Section 10.3 and thereafter, any portion of the
Lessor Advance which is converted into Loans shall be treated as if such portion
was a Loan at all times since the Initial Closing Date and shall have the
benefit of the Collateral and the Security Documents as if such Loan has been
outstanding since the Initial Closing Date, (b) the Lenders, whether existing or
joined by assignment, receiving an assignment of any such converted Loan shall
have all of the rights, benefits and obligations of a Lender and not the rights,
benefits and obligations of the Lessor, provided, the Lessor shall retain,
regarding dates prior to the effectiveness of the conversion, the benefit of any
indemnity provisions in the Operative Agreements, including without limitation
Section 11, with respect to the portion of the Lessor Advance which is converted
to Loans hereunder and (c) upon written request by the Lessor to execute an
amendment to the Operative Agreements, which evidences the conversion
contemplated by this Section 10.3, including without limitation amending the
applicable provisions referencing the percentage of Property Cost funded as a
Loan or Lessor Advance, Schedule 2.1 to the Credit Agreement, the definition of
Lessor Commitment and each similar provisions of the Operative Agreements which
would be affected by the conversion contemplated by this Section 10.3, to
execute such amendment and to deliver appropriate documentation evidencing such
amendment; provided, such conversion and the modification to the applicable
provisions of the Operative Agreements shall be effective upon the Lessor's
delivery of notice of any such conversion regardless of whether any such
amendment is executed. As of the date of the conversion, but in no event more
than once, the Lessee, upon request of the Lessor, shall cause a legal opinion
to be issued by Lessee's counsel in favor of each Financing Party, including
without limitation any Lender who is receiving an assignment of a portion of the
Loans at such time, in form and substance similar to the opinion delivered on
the Initial Closing Date pursuant to Section 5.3(cc) (but also including and
addressing the amendment and the documents related thereto required pursuant to
this Section 10.3 and the enforceability of the Loans and Lessor Advances as of
the date of such amendment) and otherwise in form and substance acceptable to
the Lessor.
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SECTION 21. INDEMNIFICATION.
21.1. GENERAL INDEMNITY.
Whether or not any of the transactions contemplated hereby shall be
consummated, the Indemnity Provider hereby assumes liability for and agrees to
defend, indemnify and hold harmless each Indemnified Person on an After Tax
Basis from and against any Claims, which may be imposed on, incurred by or
asserted against an Indemnified Person by any third party, including without
limitation Claims arising from the negligence of an Indemnified Person (but not
to the extent such Claims arise from such Indemnified Party's breach of its
express obligations under the Operative Agreements (other than such Indemnified
Party's obligation to pay interest under any Note or Lessor Yield regarding any
Lessor Advance) or the gross negligence or willful misconduct of such
Indemnified Person itself, as determined by a court of competent jurisdiction,
as opposed to gross negligence or willful misconduct imputed to such Indemnified
Person) in any way relating to or arising or alleged to arise out of the
execution, delivery, performance or enforcement of this Agreement, the Lease or
any other Operative Agreement or on or with respect to any Property or any
component thereof, including without limitation Claims in any way relating to or
arising or alleged to arise out of (a) the financing, refinancing, purchase,
acceptance, rejection, ownership, design, construction, refurbishment,
development, delivery, acceptance, nondelivery, leasing, subleasing, possession,
use, occupancy, operation, maintenance repair, modification, transportation,
condition, sale, return, repossession (whether by summary proceedings or
otherwise), or any other disposition of any Property or any part thereof,
including without limitation the acquisition, holding or disposition of any
interest in any Property, lease or agreement comprising a portion of any
thereof; (b) any latent or other defects in any Property or any portion thereof
whether or not discoverable by an Indemnified Person or the Indemnity Provider;
(c) a violation of Environmental Laws, Environmental Claims or other loss of or
damage to any property or the environment relating to any Property, the Lease or
the Indemnity Provider; (d) the Operative Agreements, or any transaction
contemplated thereby; (e) any breach by the Indemnity Provider of any of its
representations or warranties under the Operative Agreements to which the
Indemnity Provider is a party or failure by the Indemnity Provider to perform or
observe any covenant or agreement to be performed by it under any of the
Operative Agreements; (f) the transactions contemplated hereby or by any other
Operative Agreement, in respect of the application of Parts 4 and 5 of Subtitle
B of Title I of ERISA; (g) personal injury, death or property damage, including
without limitation Claims based on strict or absolute liability in tort; and (h)
any fees, expenses and/or other assessments by any business park or any other
applicable entity with oversight responsibility for the applicable Property.
If a written Claim is made against any Indemnified Person or if any
proceeding shall be commenced against such Indemnified Person (including without
limitation a written notice of such proceeding), for any Claim, such Indemnified
Person shall promptly notify the Indemnity Provider in writing and shall not
take action with respect to such Claim without the consent of the Indemnity
Provider for thirty (30) days after the receipt of such notice by the Indemnity
Provider; provided, however, that in the case of any such Claim, if action shall
be required by law or regulation to be taken prior to the end of such period of
thirty (30) days, such Indemnified
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Person shall endeavor to, in such notice to the Indemnity Provider, inform the
Indemnity Provider of such shorter period, and no action shall be taken with
respect to such Claim without the consent of the Indemnity Provider before seven
(7) days before the end of such shorter period unless the Indemnified Person
shall be required by such law or regulation to take action prior to the end of
such seven (7) day period; provided, further, that the failure of such
Indemnified Person to give the notices referred to in this sentence shall not
diminish the Indemnity Provider's obligation hereunder except to the extent such
failure materially precludes the Indemnity Provider from contesting such Claim,
in which case the Indemnity Provider's obligations hereunder shall be diminished
in a manner proportionate to such material preclusion.
If, within thirty (30) days of receipt of such notice from the
Indemnified Person (or such shorter period as the Indemnified Person has
notified the Indemnity Provider is required by law or regulation for the
Indemnified Person to respond to such Claim), the Indemnity Provider shall
request in writing that such Indemnified Person respond to such Claim, the
Indemnified Person shall, at the expense of the Indemnity Provider, in good
faith conduct and control such action (including without limitation by pursuit
of appeals) (provided, however, that (A) if such Claim, in the Indemnity
Provider's reasonable discretion, can be pursued by the Indemnity Provider on
behalf of or in the name of such Indemnified Person, the Indemnified Person, at
the Indemnity Provider's request, shall allow the Indemnity Provider to conduct
and control the response to such Claim and (B) in the case of any Claim (and
notwithstanding the provisions of the foregoing subsection (A)), the Indemnified
Person may request the Indemnity Provider to conduct and control the response to
such Claim (with counsel to be selected by the Indemnity Provider and consented
to by such Indemnified Person, such consent not to be unreasonably withheld;
provided, however, that any Indemnified Person may retain separate counsel at
the expense of the Indemnity Provider in the event of a conflict of interest
between such Indemnified Person and the Indemnity Provider)) by, in the sole
discretion of the Person conducting and controlling the response to such Claim
(1) resisting payment thereof, (2) not paying the same except under protest, if
protest is necessary and proper, (3) if the payment be made, using reasonable
efforts to obtain a refund thereof in appropriate administrative and judicial
proceedings, or (4) taking such other action as is reasonably requested by the
Indemnity Provider from time to time including but not limited to paying the
same, subject to the last sentence of Section 11.1, as a result of settlement or
otherwise.
The party controlling the response to any Claim shall consult in good
faith with the non-controlling party and shall keep the non-controlling party
reasonably informed as to the conduct of the response to such Claim; provided,
that all decisions ultimately shall be made in the discretion of the controlling
party. The parties agree that an Indemnified Person may at any time decline to
take further action with respect to the response to such Claim and may settle
such Claim if such Indemnified Person shall waive its rights to any indemnity
from the Indemnity Provider that otherwise would be payable in respect of such
Claim (and any future Claim, the pursuit of which is precluded by reason of such
resolution of such Claim) and shall pay to the Indemnity Provider any amount
previously paid or advanced by the Indemnity Provider pursuant to this Section
11.1 by way of indemnification or advance for the payment of an amount regarding
such Claim, except reasonable expenses therefrom incurred by such Indemnified
Person in connection with the response to such Claim.
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Notwithstanding the foregoing provisions of this Section 11.1, an
Indemnified Person shall not be required to take any action and the Indemnity
Provider shall not be permitted to respond to any Claim in its own name or that
of the Indemnified Person unless (A) the Indemnity Provider shall have agreed to
pay and shall pay to such Indemnified Person on demand and on an After Tax Basis
all reasonable costs, losses and expenses that such Indemnified Person actually
incurs in connection with such Claim, including without limitation all
reasonable legal, accounting and investigatory fees and disbursements and the
Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim
hereunder, (B) in the case of a Claim that must be pursued in the name of an
Indemnified Person (or an Affiliate thereof), the amount of the potential
indemnity (taking into account all similar or logically related Claims that have
been or could be raised for which the Indemnity Provider may be liable to pay an
indemnity under this Section 11.1) exceeds $20,000 (or such lesser amount as may
be subsequently agreed between the Indemnity Provider and the Indemnified
Person), (C) the Indemnified Person shall have reasonably determined that the
action to be taken will not result in any material danger of sale, forfeiture or
loss of any Property, or any part thereof or interest therein, will not
interfere with the payment of Rent, and will not result in risk of criminal
liability, (D) if such Claim shall involve the payment of any amount prior to
the resolution of such Claim, the Indemnity Provider shall provide to the
Indemnified Person an interest-free advance in an amount equal to the amount
that the Indemnified Person is required to pay (with no additional net after-tax
cost to such Indemnified Person) prior to the date such payment is due and (E)
no Event of Default shall have occurred and be continuing. In no event shall an
Indemnified Person be required to appeal an adverse judicial determination to
the United States Supreme Court. In addition, an Indemnified Person shall not be
required to contest any Claim in its name (or that of an Affiliate) if the
subject matter thereof shall be of a continuing nature and shall have previously
been decided adversely by a court of competent jurisdiction pursuant to the
contest provisions of this Section 11.1, unless there shall have been a change
in law (or interpretation thereof) and the Indemnified Person shall have
received, at the Indemnity Provider's expense, an opinion of independent counsel
selected by the Indemnity Provider and reasonably acceptable to the Indemnified
Person stating that as a result of such change in law (or interpretation
thereof), it is more likely than not that the Indemnified Person will prevail in
such contest. In no event shall the Indemnity Provider be permitted to adjust or
settle any Claim without the consent of the Indemnified Person to the extent any
such adjustment or settlement involves, or is reasonably likely to involve, any
performance by or adverse admission by or with respect to the Indemnified
Person.
21.2. GENERAL TAX INDEMNITY.
(a) The Indemnity Provider shall pay and assume liability for,
and does hereby agree to indemnify, protect and defend each Property
and all Indemnified Persons, and hold them harmless against, all
Impositions on an After Tax Basis, and all payments pursuant to the
Operative Agreements shall be made free and clear of and without
deduction for any and all present and future Impositions.
(b) Notwithstanding anything to the contrary in Section
11.2(a) hereof, the following shall be excluded from the indemnity
required by Section 11.2(a):
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(i) Taxes (other than Taxes that are, or are in the nature of,
sales, use, rental, value added, transfer or property taxes) that are
imposed on an Indemnified Person by the United States federal
government that are based on or measured by the net income (including
without limitation taxes based on capital gains, minimum taxes and
alternative minimum taxes) of such Person; provided, that this clause
(i) shall not be interpreted to prevent a payment from being made on an
After Tax Basis if such payment is otherwise required to be so made;
(ii) Taxes (other than Taxes that are, or are in the nature
of, sales, use, rental, value added, transfer or property taxes) that
are imposed on any Indemnified Person (other than the Lessor) by any
state or local jurisdiction or taxing authority within any state or
local jurisdiction and that are based upon or measured by the net
income (including without limitation taxes based on capital gains,
minimum taxes and alternative minimum taxes) of such Person; provided
that such Taxes shall not be excluded under this subparagraph (ii) to
the extent such Taxes would have been imposed had the location,
possession or use of any Property in, the location or the operation of
the Lessee in, or the Lessee's making payments under the Operative
Agreements from, the jurisdiction imposing such Taxes been the sole
connection between such Indemnified Person and the jurisdiction
imposing such Taxes; provided, further, that this clause (ii) shall not
be interpreted to prevent a payment from being made on an After Tax
Basis if such payment is otherwise required to be so made;
(iii) any Tax to the extent it relates to any act, event or
omission that occurs after the termination of the Lease and redelivery
or sale of any Property in accordance with the terms of the Lease (but
not any Tax that relates to such termination, redelivery or sale and/or
to any period prior to such termination, redelivery or sale);
(iv) any Taxes which are imposed on an Indemnified Person as a
result of the gross negligence or willful misconduct of such
Indemnified Person itself, as determined by a court of competent
jurisdiction (as opposed to gross negligence or willful misconduct
imputed to such Indemnified Person), but not Taxes imposed as a result
of ordinary negligence of such Indemnified Person; and
(v) any Taxes which are imposed on an Indemnified Person as a
direct and primary result of such Indemnified Person's breach of its
express obligations under the Operative Agreements.
(c) (i) Subject to the terms of Section 11.2(f), the Indemnity Provider
shall pay or cause to be paid all Impositions directly to the taxing
authorities where feasible and otherwise to the Indemnified Person, as
appropriate, and the Indemnity Provider shall at its own expense, upon
such Indemnified Person's reasonable request, furnish to such
Indemnified Person copies of official receipts or other satisfactory
proof evidencing such payment.
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(ii) In the case of Impositions for which no contest is
conducted pursuant to Section 11.2(f) and which the Indemnity Provider
pays directly to the taxing authorities, the Indemnity Provider shall
pay such Impositions prior to the latest time permitted by the relevant
taxing authority for timely payment. In the case of Impositions for
which the Indemnity Provider reimburses an Indemnified Person, the
Indemnity Provider shall do so within thirty (30) days after receipt by
the Indemnity Provider of demand by such Indemnified Person describing
in reasonable detail the nature of the Imposition and the basis for the
demand (including without limitation the computation of the amount
payable), accompanied by receipts or other reasonable evidence of such
demand. In the case of Impositions for which a contest is conducted
pursuant to Section 11.2(f), the Indemnity Provider shall pay such
Impositions or reimburse such Indemnified Person for such Impositions,
to the extent not previously paid or reimbursed pursuant to subsection
(a), prior to the latest time permitted by the relevant taxing
authority for timely payment after conclusion of all contests under
Section 11.2(f).
(iii) At the Indemnity Provider's request, the amount of any
indemnification payment by the Indemnity Provider pursuant to
subsection (a) shall be verified and certified by an independent public
accounting firm mutually acceptable to the Indemnity Provider and the
Indemnified Person. The fees and expenses of such independent public
accounting firm shall be paid by the Indemnity Provider unless such
verification shall result in an adjustment in the Indemnity Provider's
favor of fifteen percent (15%) or more of the payment as computed by
the Indemnified Person, in which case such fee shall be paid by the
Indemnified Person.
(d) The Indemnity Provider shall be responsible for preparing and
filing any real and personal property or ad valorem tax returns in respect of
the Properties. In case any other report or tax return shall be required to be
made with respect to any obligations of the Indemnity Provider under or arising
out of subsection (a) and of which the Indemnity Provider has knowledge or
should have knowledge, the Indemnity Provider, at its sole cost and expense,
shall notify the relevant Indemnified Person of such requirement and (except if
such Indemnified Person notifies the Indemnity Provider that such Indemnified
Person intends to prepare and file such report or return) (A) to the extent
required or permitted by and consistent with Legal Requirements, make and file
in the Indemnity Provider's name such return, statement or report; and (B) in
the case of any other such return, statement or report required to be made in
the name of such Indemnified Person, advise such Indemnified Person of such fact
and prepare such return, statement or report for filing by such Indemnified
Person or, where such return, statement or report shall be required to reflect
items in addition to any obligations of the Indemnity Provider under or arising
out of subsection (a), provide such Indemnified Person at the Indemnity
Provider's expense with information sufficient to permit such return, statement
or report to be properly made with respect to any obligations of the Indemnity
Provider under or arising out of subsection (a) no later than fifteen (15) days
prior to the due date thereof. Such Indemnified Person shall, upon the Indemnity
Provider's request and at the
65
Indemnity Provider's expense, provide any data maintained by such
Indemnified Person (and not otherwise available to or within the
control of the Indemnity Provider) with respect to each Property which
the Indemnity Provider may reasonably require to prepare any required
tax returns or reports.
(e) As between the Indemnity Provider on one hand, and each
Financing Party on the other hand, the Indemnity Provider shall be
responsible for, and the Indemnity Provider shall indemnify and hold
harmless each Financing Party (without duplication of any
indemnification required by subsection (a)) on an After Tax Basis
against, any obligation for United States or foreign withholding taxes
or similar levies, imposts, charges, fees, deductions or withholdings
(collectively, "Withholdings") imposed in respect of the interest
payable on the Notes, Lessor Yield payable on the Lessor Advances or
with respect to any other payments under the Operative Agreements (all
such payments being referred to herein as "Exempt Payments" to be made
without deduction, withholding or set off) (and, if any Financing Party
receives a demand for such payment from any taxing authority or a
Withholding is otherwise required with respect to any Exempt Payment,
the Indemnity Provider shall discharge such demand on behalf of such
Financing Party); provided, however, that the obligation of the
Indemnity Provider under this Section 11.2(e) shall not apply to:
(i) Withholdings on any Exempt Payment to any
Financing Party which is a non-U.S. Person unless such
Financing Party is, on the date hereof (or on the date it
becomes a Financing Party hereunder) and on the date of any
change in the principal place of business or the lending
office of such Financing Party (provided that this Section
11.2(e)(i) shall not apply with respect to any change in a
Financing Party's principal place of business or lending
office unless such change subjects such Financing Party to
additional U.S. Withholdings), entitled to and does timely
submit to the Agent two (2) complete original signed copies of
a Form W-8BEN or Form W-8ECI or successor applicable form,
certifying in each case that such party is entitled under
Section 1442 of the Code or any other applicable provision
thereof or under any applicable tax treaty or convention to
receive payments pursuant to the Operative Agreements without
deduction or withholding of United States federal income tax
and is a foreign Person thereby entitled to an exemption from
United States backup withholding taxes (except where the
failure of the exemption results from a change in the
principal place of business of the Lessee; provided if a
failure of exemption for any Financing Party results from a
change in the principal place of business or lending office of
any other Financing Party, then such other Financing Party
shall be liable for any Withholding or indemnity with respect
thereto), or
(ii) Any U.S. Taxes imposed solely by reason of the
failure by a non-U.S. Person to comply with applicable
certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity
or connections with the United States of America of such
non-U.S. Person if such compliance is required by statute or
regulation of the United States of America as a precondition
to relief or exemption from such U.S. Taxes.
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For the purposes of this Section 11.2(e), (A) "U.S. Person" shall mean a
citizen, national or resident of the United States of America, a corporation,
partnership or other entity created or organized in or under any laws of the
United States of America or any State thereof, or any estate or trust that is
subject to Federal income taxation regardless of the source of its income, (B)
"U.S. Taxes" shall mean any present or future tax, assessment or other charge or
levy imposed by or on behalf of the United States of America or any taxing
authority thereof or therein, (C) "Form W-8BEN" shall mean Form W-8BEN
(Certificate of Foreign Status of Beneficial Owner for United States Tax
Withholding) of the Department of the Treasury of the United States of America
and (D) "Form W-8ECI" shall mean Form W-8ECI (Certificate of Foreign Person's
Claim for Exemption from Withholding on Income Effectively Connected with the
Conduct of a Trade or Business in the United States) of the Department of
Treasury of the United States of America. Each of the Forms referred to in the
foregoing clauses (C) and (D) shall include such successor and related forms as
may from time to time be adopted by the relevant taxing authorities of the
United States of America to document a claim to which such Form relates.
If a Financing Party or an Affiliate with whom such Financing Party
files a consolidated tax return (or equivalent) subsequently receives the
benefit in any country of a tax credit or an allowance resulting from U.S. Taxes
with respect to which it has received a payment of an additional amount under
this Section 11.2(e), such Financing Party will pay to the Indemnity Provider
such part of that benefit as in the opinion of such Financing Party will leave
it (after such payment) in a position no more and no less favorable than it
would have been in if no additional payment had been required to be paid,
provided always that (i) such Financing Party will be the sole judge of the
amount of any such benefit and of the date on which it is received, (ii) such
Financing Party will have the absolute discretion as to the order and manner in
which it employs or claims tax credits and allowances available to it and (iii)
such Financing Party will not be obliged to disclose to the Indemnity Provider
any information regarding its tax affairs or tax computations.
Each non-U.S. Person that shall become a Financing Party after the date
hereof shall, upon the effectiveness of the related transfer or otherwise upon
becoming a Financing Party hereunder, be required to provide all of the forms
and statements referenced above or other evidences of exemption from
Withholdings.
(f) If a written Claim is made against any Indemnified Person or if any
proceeding shall be commenced against such Indemnified Person (including without
limitation a written notice of such proceeding), for any Impositions, the
provisions in Section 11.1 relating to notification and rights to contest shall
apply; provided, however, that the Indemnity Provider shall have the right to
conduct and control such contest only if such contest involves a Tax other than
a Tax on net income of the Indemnified Person and can be pursued independently
from any other proceeding involving a Tax liability of such Indemnified Person.
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(g) If any Indemnified Person shall receive a refund or rebate
of any Tax paid by an Indemnity Provider pursuant to this Section 11.2,
then the recipient thereof shall promptly repay the refund or rebate to
the Indemnity Provider limited to the amount received and taking into
account any Tax consequences arising in connection with the receipt
thereof and the repayment contemplated by this Section 11.2(g);
provided, however, such amounts shall not be repaid to the Indemnity
Provider during the occurrence and continuance of any Event of Default
under any Operative Agreements attributable to the Indemnity Provider,
provided, further, if after a refund or rebate of any Tax, there occurs
subsequent assessments with respect to such Tax, the provisions of
Section 11.2(a) above shall apply.
21.3. INCREASED COSTS, ILLEGALITY, ETC.
(a) If, due to either (i) the introduction of or any change in
or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request hereafter adopted, promulgated
or made by any central bank or other governmental authority (whether or
not having the force of law), there shall be any increase in the cost
to any Financing Party of agreeing to make or making, funding or
maintaining Advances, then the Lessee shall from time to time, upon
demand by such Financing Party (with a copy of such demand to the Agent
but subject to the terms of Section 2.11 of the Credit Agreement), pay
to the Agent for the account of such Financing Party additional amounts
sufficient to compensate such Financing Party for such increased cost.
A certificate as to the amount of such increased cost, submitted to the
Lessee and the Agent by such Financing Party, shall be conclusive and
binding for all purposes, absent manifest error; provided, that upon
request, the Lessee shall be entitled to review and verify
non-confidential information of any Financing Party related to the
determination as set forth in the certificate and discuss such
non-confidential information of any Financing Party related to any such
determination with such Financing Party.
(b) If any Financing Party determines that compliance with any
law or regulation or any guideline or request from any central bank or
other governmental authority (whether or not having the force of law,
but in each case promulgated or made after the date hereof) affects or
would affect the amount of capital required or expected to be
maintained by such Financing Party or any corporation controlling such
Financing Party and that the amount of such capital is increased by or
based upon the existence of such Financing Party's commitment to make
Advances and other commitments of this type or upon the Advances, then,
upon demand by such Financing Party (with a copy of such demand to the
Agent but subject to the terms of Section 2.11 of the Credit
Agreement), the Lessee shall pay to the Agent for the account of such
Financing Party, from time to time as specified by such Financing
Party, additional amounts sufficient to compensate such Financing Party
or such corporation in the light of such circumstances, to the extent
that such Financing Party reasonably determines such increase in
capital to be allocable to the existence of such Financing Party's
commitment to make such Advances. A certificate as to such amounts
submitted to the Lessee and the Agent by such Financing Party shall be
conclusive and binding for all purposes, absent manifest error;
provided, that upon request, the Lessee shall be entitled to review and
verify non-
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confidential information of any Financing Party related to the
determination as set forth in the certificate and discuss such
non-confidential information of any Financing Party related to any such
determination with such Financing Party.
(c) Without affecting its rights under Sections 11.3(a),
21.3(b) or any other provision of any Operative Agreement, each
Financing Party agrees that if there is any increase in any cost to or
reduction in any amount receivable by such Financing Party with respect
to which the Lessee would be obligated to compensate such Financing
Party pursuant to Sections 11.3(a) or 11.3(b), such Financing Party
shall use reasonable efforts to select an alternative office for
Advances which would not result in any such increase in any cost to or
reduction in any amount receivable by such Financing Party; provided,
however, that no Financing Party shall be obligated to select an
alternative office for Advances if such Financing Party determines that
(i) as a result of such selection such Financing Party would be in
violation of any applicable law, regulation, treaty, or guideline, or
would incur additional costs or expenses or (ii) such selection would
be inadvisable for regulatory reasons or materially inconsistent with
the interests of such Financing Party.
(d) With reference to the obligations of the Lessee set forth
in Sections 11.3(a) through 11.3(c), the Lessee shall not have any
obligation to pay to any Financing Party amounts owing under such
Sections for any period which is more than one (1) year prior to the
date upon which the request for payment therefor is delivered to the
Lessee.
(e) Notwithstanding any other provision of this Agreement, if
any Financing Party shall notify the Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes
it unlawful, or any central bank or other governmental authority
asserts that it is unlawful, for any Financing Party to perform its
obligations hereunder to make or maintain its Loans or Lessor Advances
on the basis of the Eurodollar Rate, then (i) such Loans or Lessor
Advances will automatically, at the earlier of the end of the Interest
Period for such Loans or Lessor Advances, or the date required by law,
convert into Loans or Lessor Advances based on the ABR and (ii) the
obligation of the Financing Parties to make, convert or continue its
Loans or Lessor Advances on the basis of the Eurodollar Rate shall be
suspended until the Agent shall notify the Lessee that such Financing
Party has determined that the circumstances causing such suspension no
longer exist.
21.4. FUNDING/CONTRIBUTION INDEMNITY.
Subject to the provisions of Section 2.11(a) of the Credit Agreement,
the Lessee agrees to indemnify each Financing Party and to hold each Financing
Party harmless from any loss or reasonable expense which such Financing Party
may sustain or incur as a consequence of (a) any default in connection with the
drawing of funds for any Advance, (b) any default in making any prepayment after
a notice thereof has been given in accordance with the provisions of the
Operative Agreements or (c) the making of a voluntary or involuntary payment of
Loans or Lessor Advances based on the Eurodollar Rate on a day which is not the
last day of an Interest
69
Period with respect thereto. Such indemnification shall be in an amount equal to
the excess, if any, of (x) the amount of interest or Lessor Yield, as the case
may be, which would have accrued on the amount so paid, or not so borrowed,
accepted, converted or continued for the period from the date of such payment or
of such failure to borrow, accept, convert or continue to the last day of such
Interest Period (or, in the case of a failure to borrow, accept, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable Eurodollar Rate plus the Applicable
Percentage for such Loan or Lessor Advance, as the case may be, for such
Interest Period over (y) the amount of interest (as determined by such Financing
Party in its reasonable discretion) which would have accrued to such Financing
Party on such amount by (i) (in the case of the Lenders) reemploying such funds
in loans of the same type and amount during the period from the date of payment
or failure to borrow to the last day of the then applicable Interest Period (or,
in the case of a failure to borrow, the Interest Period that would have
commenced on the date of such failure) and (ii) (in the case of the Lessor)
placing such amount on deposit for a comparable period with leading banks in the
relevant interest rate market. This covenant shall survive the termination of
the Operative Agreements and the payment of all other amounts payable hereunder.
21.5. EXPRESS INDEMNIFICATION FOR ORDINARY NEGLIGENCE, STRICT
LIABILITY, ETC.
WITHOUT LIMITING THE GENERALITY OF THE INDEMNIFICATION PROVISIONS OF
ANY AND ALL OF THE OPERATIVE AGREEMENTS AND TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH PERSON PROVIDING INDEMNIFICATION OF ANOTHER PERSON UNDER
ANY OPERATIVE AGREEMENT HEREBY FURTHER EXPRESSLY RELEASES EACH BENEFICIARY OF
ANY SUCH INDEMNIFICATION FROM ALL CLAIMS FOR LOSS OR DAMAGE, DESCRIBED IN ANY
OPERATIVE AGREEMENT, CAUSED BY ANY ACT OR OMISSION ON THE PART OF ANY SUCH
BENEFICIARY ATTRIBUTABLE TO THE ORDINARY NEGLIGENCE (WHETHER SOLE OR
CONTRIBUTORY) OR STRICT LIABILITY OF ANY SUCH BENEFICIARY, AND INDEMNIFIES,
EXONERATES AND HOLDS EACH SUCH BENEFICIARY FREE AND HARMLESS FROM AND AGAINST
ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS, CLAIMS, LOSSES, COSTS,
LIABILITIES, DAMAGES AND EXPENSES (INCLUDING WITHOUT LIMITATION ATTORNEY'S FEES
AND EXPENSES), DESCRIBED ABOVE, INCURRED BY ANY SUCH BENEFICIARY (IRRESPECTIVE
OF WHETHER ANY SUCH BENEFICIARY IS A PARTY TO THE ACTION FOR WHICH
INDEMNIFICATION UNDER THIS AGREEMENT OR ANY OTHER OPERATIVE AGREEMENT IS SOUGHT)
ATTRIBUTABLE TO THE ORDINARY NEGLIGENCE (WHETHER SOLE OR CONTRIBUTORY) OR STRICT
LIABILITY OF ANY SUCH BENEFICIARY.
21.6. ADDITIONAL PROVISIONS REGARDING ENVIRONMENTAL INDEMNIFICATION.
Each and every Indemnified Person shall at all times have the rights
and benefits, and the Indemnity Provider shall have the obligations, in each
case provided pursuant to the Operative Agreements with respect to environmental
matters, violations of any Environmental Law, any
70
Environmental Claim or other loss of or damage to any property or the
environment relating to any Property, the Lease or the Indemnity Provider
(including without limitation the rights and benefits provided pursuant to
Section 11.1(c)).
SECTION 22. MISCELLANEOUS.
22.1. SURVIVAL OF AGREEMENTS.
The representations, warranties, covenants, indemnities and agreements
of the parties provided for in the Operative Agreements, and the parties'
obligations under any and all thereof, shall survive the execution and delivery
of this Agreement, the transfer of any Property to the Lessor, the acquisition
of any Property (or any of its components), the construction of any
Improvements, any disposition of any interest of the Lessor in any Property, the
payment of the Notes and the Lessor Advance and any disposition thereof and
shall be and continue in effect notwithstanding any investigation made by any
party and the fact that any party may waive compliance with any of the other
terms, provisions or conditions of any of the Operative Agreements. Except as
otherwise expressly set forth herein or in other Operative Agreements, the
indemnities of the parties provided for in the Operative Agreements shall
survive the expiration or termination of one or more Operative Agreements.
22.2. NOTICES.
All notices required or permitted to be given under any Operative
Agreement shall be in writing. Notices may be served by certified or registered
mail, postage paid with return receipt requested; by private courier, prepaid;
by telex, facsimile, or other telecommunication device capable of transmitting
or creating a written record; or personally. Mailed notices shall be deemed
delivered five (5) days after mailing, properly addressed. Couriered notices
shall be deemed delivered when delivered as addressed, or if the addressee
refuses delivery, when presented for delivery notwithstanding such refusal.
Telex or telecommunicated notices shall be deemed delivered when receipt is
either confirmed by confirming transmission equipment or acknowledged by the
addressee or its office. Personal delivery shall be effective when accomplished.
Unless a party changes its address by giving notice to the other party as
provided herein, notices shall be delivered to the parties at the following
addresses:
If to the Lessee, to such entity at the following address:
West Facilities Corporation
11808 Miracle Hills Drive
Omaha, Nebraska 68154
Attention: Paul M. Mendlik, Chief Financial Officer
Telephone: (402) 963-1200
Telecopy: (402) 963-1619
71
If to the Lessor, to it at the following address:
Wachovia Development Corporation
c/o Wachovia Securities, Inc.
One Wachovia Center
201 South College Street
Charlotte, North Carolina 28288
Attention: Gabrielle Braverman
Telephone: (704) 383-1967
Telecopy: (704) 383-8108
If to the Agent, to it at the following address:
Wachovia Bank, National Association
301 South College Street
Charlotte, North Carolina 28288-5708
Attention: Angela Abessinio
Telephone: (704) 383-9334
Telecopy: (704) 383-7989
If to any Lender, to it at the address set forth for such Lender in
Schedule 2.1 of the Credit Agreement.
From time to time any party may designate additional parties and/or
another address for notice purposes by notice to each of the other parties
hereto. Each notice hereunder shall be effective upon receipt or refusal
thereof.
22.3. COUNTERPARTS.
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute but one (1) and the same
instrument.
12.4. TERMINATIONS, AMENDMENTS, WAIVERS, ETC.; UNANIMOUS VOTE
MATTERS.
Each of the parties hereto agrees that:
(a) except as expressly provided in subsections (b) and (c)
below and except for the Unanimous Vote Matters, each Operative
Agreement may only be terminated, amended, modified, extended
supplemented, restated, replaced or waived upon the approval in writing
by the Borrower, the Agent, the Majority Secured Parties, the Lessee
(to the extent the Lessee is a party to such Operative Agreement) and,
with respect to the Guaranty only, the Guarantors; provided, each
termination, amendment, modification, extension, supplement,
restatement, replacement or waiver regarding any Operative Agreement,
which adversely affects the rights of the Lessee shall also require the
written consent of the Lessee (not to be unreasonably withheld or
delayed) unless a Lease
72
Default or Lease Event of Default shall have occurred and be
continuing, provided, further, that each termination, amendment,
modification, extension, supplement, restatement, replacement or waiver
regarding any Operative Agreement shall also require the written
consent of each Financing Party affected thereby (the "Unanimous Vote
Matters"), so as to
(i) except for a pro rata reduction in each such Lend
Commitment and/or Lessor Commitment or, regarding the Lender
Commitment, as otherwise provided in Section 2.5 of the Credit
Agreement, reduce the Lender Commitments and/or the Lessor
Commitments or extend the scheduled date of maturity of any
Note;
(ii) extend the scheduled Expiration Date or extend
any payment date of any Note or Lessor Advance;
(iii) reduce the stated rate of interest payable on
any Note or reduce the stated Lessor Yield payable on any
Lessor Advance (other than as a result of waiving the
applicability of any post-default increase in interest rates
or Lessor Yields);
(iv) modify the priority of any Lien in favor of the
Agent under any Security Document;
(v) subordinate any obligation owed to such Lender or
the Lessor;
(vi) extend the expiration date of such Lender's
Lender Commitment or the Lessor Commitment of the Lessor;
(vii) terminate, amend, supplement, waive, discharge
or modify any provision of this Section 12.4 or reduce the
percentages specified in the definitions of Majority Lenders
or Majority Secured Parties;
(viii) release a material portion of the Collateral
(except in accordance with Section 8.8);
(ix) release the Borrower or the Lessee from its
obligations under any Operative Agreement or otherwise alter
any payment obligations of the Borrower or the Lessee to the
Lessor or any Financing Party under the Operative Agreements;
(x) terminate, amend, supplement, waive, discharge or
modify any provision of Section 8.6 of this Agreement;
(xi) impose any additional affirmative obligation or
requirement on the applicable Financing Party, make any
existing obligations of the applicable Financing Party
materially more onerous, or further obligate, prohibit or
restrict
73
the applicable Financing Party or its right, title or interest
under the Operative Agreements in any material manner; or
(xii) modify or amend any definition so as to affect
the matters described in the foregoing (i)-(xi).
(b) the Mortgage Instrument (and any UCC Financing Statement
related thereto) may only be terminated, amended, modified, extended
supplemented, restated, replaced or waived upon the approval in writing
by the Borrower, the Lessor, (to the extent relating to the Lessee as
opposed to relating to the Borrower) the Lessee and (to the extent
relating to the Lien in favor of the Lenders under such Mortgage
Instrument or UCC Financing Statement) the Majority Lenders.
(c) each termination, amendment, modification, extension,
supplement, restatement, replacement or waiver regarding any Operative
Agreement affecting Sections 4.1, 8.2, 8.3, 9.1, 10.1, 10.2, 11.1,
12.1, 13.1, 13.2, 14.1, 14.2, 14.3, 15.1, 15.2, 15.3, 16.1, 16.2, 18.1,
19.1, 19.2, 20.2, 20.3 (excluding all provisions related to payments in
Sections 20.2 or 20.3), 22.1, 22.4, 22.5, 23.1 or 24.1 of the Lease or
affecting in any way the Collateral or any Property requires the
consent of the Lessor.
Any such termination, amendment, supplement, waiver, discharge or
modification approved, executed, adopted or consented to pursuant to this
Section 12.4 shall apply equally to each of the Lenders and the Lessor and shall
be binding upon all the parties to this Agreement. In the case of any waiver,
each party to this Agreement shall be restored to its former position and rights
under the Operative Agreements, and any Default or Event of Default waived shall
be deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
If, at a time when the conditions precedent set forth in the Operative
Agreements to any Lessor Advance are, in the reasonable opinion of the Agent,
satisfied, the Lessor shall fail to fulfill its obligations to make such Lessor
Advance, then, for so long as such failure shall continue, the Lessor shall
(unless the Lessee and the Majority Secured Parties, determined as if the Lessor
were not a "Financing Party", shall otherwise consent in writing) be deemed for
all purposes relating to terminations, amendments, supplements, waivers,
discharges or modifications under the Operative Agreements to have no Lessor
Advances for purposes of performing the computation of Majority Secured Parties,
and shall have no rights under this Section 12.4; provided that any action taken
with respect to a Unanimous Vote Matter shall not be effective as against the
Lessor without the Lessor's consent.
If, at a time when the conditions precedent set forth in the Operative
Agreements to any Loan are, in the reasonable opinion of the Agent, satisfied,
any Lender shall fail to fulfill its obligations to make such Loan, then, for so
long as such failure shall continue, such Lender shall (unless the Lessee and
the Majority Secured Parties, determined as if such Lender were not a "Financing
Party", shall otherwise consent in writing) be deemed for all purposes relating
to terminations, amendments, supplements, waivers, discharges or modifications
under the Operative Agreements to have no Loans for purposes of performing the
computation of Majority
74
Secured Parties, and shall have no rights under this Section 12.4; provided that
any action taken with respect to a Unanimous Vote Matter shall not be effective
as against such Lender without such Lender's consent.
22.5. HEADINGS, ETC.
The Table of Contents and headings of the various Articles and Sections
of this Agreement are for convenience of reference only and shall not modify,
define, expand or limit any of the terms or provisions hereof.
22.6. PARTIES IN INTEREST.
Except as expressly provided herein, none of the provisions of this
Agreement are intended for the benefit of any Person except the parties hereto.
22.7. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL; VENUE.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, INTERPRETED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NORTH
CAROLINA (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO
CONFLICTS OF LAW), EXCEPT TO THE EXTENT THE LAWS OF THE STATE WHERE A
PARTICULAR PROPERTY IS LOCATED ARE REQUIRED TO APPLY. Any legal action
or proceeding with respect to this Agreement or any other Operative
Agreement may be brought in the courts of the State of North Carolina
in Mecklenburg County or of the United States for the Western District
of North Carolina, and, by execution and delivery of this Agreement,
each of the parties to this Agreement hereby irrevocably accepts for
itself and in respect of its property, generally and unconditionally,
the nonexclusive jurisdiction of such courts. Each of the parties to
this Agreement further irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at the address set out for notices
pursuant to Section 12.2, such service to become effective three (3)
days after such mailing. Nothing herein shall affect the right of any
party to serve process in any other manner permitted by Law or to
commence legal proceedings or to otherwise proceed against any party in
any other jurisdiction.
(b) EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW,
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO ANY
DISPUTE OR THIS AGREEMENT, ANY OTHER OPERATIVE AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.
(c) Each of the parties to this Agreement hereby irrevocably
waives any objection which it may now or hereafter have to the laying
of venue of any of the
75
aforesaid actions or proceedings arising out of or in connection with
this Agreement or any other Operative Agreement brought in the courts
referred to in subsection (a) above and hereby further irrevocably
waives and agrees not to plead or claim in any such court that any such
action or proceeding brought in any such court has been brought in an
inconvenient forum.
Subject to the other applicable provisions of the Operative Agreements,
the parties shall have the right to proceed in any court of proper jurisdiction
or by self-help to exercise or prosecute the following remedies, as applicable:
(i) all rights to foreclose against any real or personal property or other
security by exercising a power of sale or under applicable law by judicial
foreclosure including a proceeding to confirm the sale; (ii) all rights of
self-help including peaceful occupation of real property and collection of
rents, set-off and peaceful possession of personal property; (iii) obtaining
provisional or ancillary remedies including injunctive relief, sequestration,
garnishment, attachment, appointment of receiver and filing an involuntary
bankruptcy proceedings; and (iv) when applicable, a judgment by confession of
judgment. Any claim or controversy with regard to any party's entitlement to
such remedies is a Dispute.
Each party to this Agreement agrees that it shall not have a remedy of
punitive or exemplary damages against any other party in any Dispute and hereby
waives any right or claim to punitive or exemplary damages it has now or which
may arise in the future in connection with any Dispute.
22.8. SEVERABILITY.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
22.9. LIABILITY LIMITED.
Anything to the contrary contained in this Agreement, the Credit
Agreement, the Notes or in any other Operative Agreement notwithstanding, no
Exculpated Person shall be personally liable in any respect for any liability or
obligation arising hereunder or in any other Operative Agreement including
without limitation the payment of the principal of, or interest on, the Notes,
or for monetary damages for the breach of performance of any of the covenants
contained in the Credit Agreement, the Notes, this Agreement, the Security
Agreement or any of the other Operative Agreements. The Primary Financing
Parties agree that, in the event any remedies under any Operative Agreement are
pursued, neither the Primary Financing Parties nor the Agent shall have any
recourse against any Exculpated Person, for any deficiency, loss or Claim for
monetary damages or otherwise resulting therefrom and recourse shall be had
solely and exclusively against the Borrower's Interest (excluding Excepted
Payments) and the Lessee (with respect to the Lessee's obligations under the
Operative Agreements); but nothing contained herein shall be taken to prevent
recourse against or the enforcement of remedies against the
76
Borrower's Interest (excluding Excepted Payments) in respect of any and all
liabilities, obligations and undertakings contained herein and/or in any other
Operative Agreement. Notwithstanding the provisions of this Section, nothing in
any Operative Agreement shall: (i) constitute a waiver, release or discharge of
any indebtedness or obligation evidenced by the Notes arising under any
Operative Agreement or secured by any Operative Agreement, but the same shall
continue until paid or discharged; (ii) relieve any Exculpated Person from
liability and responsibility for (but only to the extent of the damages arising
by reason of): active waste knowingly committed by any Exculpated Person with
respect to any Property, any fraud, gross negligence or willful misconduct on
the part of any Exculpated Person; (iii) relieve any Exculpated Person from
liability and responsibility for (but only to the extent of the moneys
misappropriated, misapplied or not turned over) (A) except for Excepted
Payments, misappropriation or misapplication by the Lessor (i.e., application in
a manner contrary to any of the Operative Agreements) of any insurance proceeds
or condemnation award paid or delivered to the Lessor by any Person other than
the Agent, (B) except for Excepted Payments, any deposits or any escrows or
amounts owed by the Lessee held by the Lessor or (C) except for Excepted
Payments, any rent or other income received by the Lessor from the Lessee that
is not turned over to the Agent; or (iv) affect or in any way limit the Agent's
rights and remedies under any Operative Agreement with respect to the Rents and
rights and powers of the Agent under the Operative Agreements or to obtain a
judgment against the Lessee's interest in the Properties or the Agent's rights
and powers to obtain a judgment against the Lessor or the Lessee (provided, that
no deficiency judgment or other money judgment shall be enforced against any
Exculpated Person except to the extent of the Lessor's interest in the
Borrower's Interest (excluding Excepted Payments) or to the extent the Lessor
may be liable as otherwise contemplated in clauses (ii) and (iii) of this
Section 12.9).
22.10. RIGHTS OF THE LESSEE.
If at any time all obligations (i) of the Borrower under the Credit
Agreement, the Security Documents and the other Operative Agreements and (ii) of
the Credit Parties under the Operative Agreements have in each case been
satisfied or discharged in full, then the Lessee shall be entitled to (a)
terminate the Lease and (b) receive all amounts then held under the Operative
Agreements and all proceeds with respect to any of the Properties. Upon the
termination of the Lease pursuant to the foregoing clause (a), the Lessor shall
transfer to the Lessee all of its right, title and interest free and clear of
the Lien of the Lease, the Lien of the Security Documents and all Lessor Liens
in and to any Properties then subject to the Lease and any amounts or proceeds
referred to in the foregoing clause (b) shall be paid over to the Lessee.
22.11. FURTHER ASSURANCES.
The parties hereto shall promptly cause to be taken, executed,
acknowledged or delivered, at the sole expense of the Lessee, all such further
acts, conveyances, documents and assurances as the other parties may from time
to time reasonably request in order to carry out and effectuate the intent and
purposes of this Participation Agreement, the other Operative Agreements and the
transactions contemplated hereby and thereby (including without limitation the
preparation, execution and filing of any and all Uniform Commercial Code
financing statements, filings of Mortgage Instruments and other filings or
registrations which the parties
77
hereto may from time to time request to be filed or effected). The Lessee, at
its own expense and without need of any prior request from any other party,
shall take such action as may be necessary (including without limitation any
action specified in the preceding sentence), or (if the Lessor or the Agent
shall so request) as so requested, in order to maintain and protect all security
interests provided for hereunder or under any other Operative Agreement. In
addition, in connection with the sale or other disposition of any Property or
any portion thereof, the Lessee agrees to execute such instruments of conveyance
as may be reasonably required in connection therewith.
22.12. CALCULATIONS UNDER OPERATIVE AGREEMENTS.
The parties hereto agree that all calculations and numerical
determinations to be made under the Operative Agreements by the Lessor shall be
made by the Agent and that such calculations and determinations shall be
conclusive and binding on the parties hereto in the absence of manifest error;
provided, that upon request, the Lessee shall be entitled to review and verify
non-confidential information of any Financing Party related to the determination
as set forth in the certificate and discuss such non-confidential information of
any Financing Party related to any such determination with such Financing Party.
22.13. CONFIDENTIALITY.
Each Financing Party severally agrees to use reasonable efforts to keep
confidential all non-public information pertaining to the Credit Party or any of
their Subsidiaries which is provided to it by any Credit Party or any of their
Subsidiaries and which an officer of any Credit Party or any of their
Subsidiaries has requested in writing be kept confidential, and shall not
intentionally disclose such information to any Person except:
(a) to the extent such information is public when received by
such Person or becomes public thereafter due to the act or omission of
any party other than such Person;
(b) to the extent such information is independently obtained
from a source other than any Credit Party or any of their Subsidiaries
and such information from such source is not, to such Person's
knowledge, subject to an obligation of confidentiality or, if such
information is subject to an obligation of confidentiality, that
disclosure of such information is permitted;
(c) to counsel, auditors or accountants retained by any such
Person or any Affiliates of any such Person (if such Affiliates are
permitted to receive such information pursuant to clause (f) or (g)
below), provided they agree to keep such information confidential as if
such Person or Affiliate were party to this Agreement and to financial
institution regulators, including examiners of any Financing Party or
any Affiliate thereof in the course of examinations of such Persons;
(d) in connection with any litigation or the enforcement or
preservation of the rights of any Financing Party under the Operative
Agreements;
78
(e) to the extent required by any applicable statute, rule or
regulation or court order (including without limitation, by way of
subpoena) or pursuant to the request of any regulatory or Governmental
Authority having jurisdiction over any such Person; provided, however,
that such Person shall endeavor (if not otherwise prohibited by Law) to
notify the Parent prior to any disclosure made pursuant to this clause
(e), except that no such Person shall be subject to any liability
whatsoever for any failure to so notify the Parent;
(f) any Financing Party may disclose such information to
another Financing Party or to any Affiliate of a Financing Party that
is a direct or indirect owner of any Financing Party;
(g) any Financing Party may disclose such information to an
Affiliate of any Financing Party to the extent required in connection
with the transactions contemplated hereby or to the extent such
Affiliate is involved in, or provides advice or assistance to such
Person with respect to, such transactions (provided, in each case that
such Affiliate has agreed in writing to maintain confidentiality as if
it were such Financing Party (as the case may be)); or
(h) to the extent disclosure to any other financial
institution or other Person is appropriate in connection with any
proposed or actual assignment or grant of a participation by any of the
Lenders of interests in the Credit Agreement or any Note to such other
financial institution (who will in turn be required by the Agent to
agree in writing to maintain confidentiality as if it were a Lender
originally party to this Agreement).
Subject to the foregoing terms of Sections 12.13(a)-12.13(h), under the
terms of any one or more of which circumstances disclosure shall be permitted,
each Financing Party severally agrees to use reasonable efforts to keep
confidential all non-public information pertaining to the financing structure
described in the unrecorded Operative Agreements.
22.14. FINANCIAL REPORTING/TAX CHARACTERIZATION.
The Lessee agrees to obtain advice from its own accountants and tax
counsel regarding the financial reporting treatment and the tax characterization
of the transactions described in the Operative Agreements. Except as expressly
stated in Sections 6.1(q) and 8.2(e) hereof, the Lessee further agrees that the
Lessee shall not rely upon any statement (including without limitation the
representations and warranties of the Borrower or any Financing Party, the
covenants or any information provided in accordance with the covenants of the
Lessor or any other Financing Party) of any Financing Party or any of their
respective Affiliates and/or Subsidiaries regarding any such financial reporting
treatment, accounting treatment and/or tax characterization. For federal income
tax purposes, Lessor and Lessee agree to consistently treat Lessee as the owner
of each Property. Accordingly, unless prohibited by applicable Law or unless
otherwise previously determined by a court of competent jurisdiction pursuant to
the contest provisions of Section 11.2(f) hereof, Lessor and Lessee agree, for
federal income tax
79
purposes, (i) to treat Lessee as the owner of each Property and (ii) not to take
any action or position inconsistent with such treatment on or with respect to
their Federal income tax returns.
[signature pages follow]
80
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
WEST FACILITIES CORPORATION, as the
Lessee
By: /s/ Paul M. Mendlik
---------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Officer
(signature pages continue)
Participation Agreement
West Lease Facility
81
WEST CORPORATION, as the Parent and as a Guarantor
By: /s/ Paul M. Mendlik
----------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Officer
(signature pages continue)
Participation Agreement
West Lease Facility
82
WEST TELEMARKETING CORPORATION,
as a Guarantor
By: /s/ Paul M. Mendlik
----------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Officer
WEST TELEMARKETING CORPORATION II,
as a Guarantor
By: /s/ Paul M. Mendlik
----------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Officer
WEST TELEMARKETING CORPORATION
OUTBOUND, as a Guarantor
By: /s/ Paul M. Mendlik
----------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Officer
DAKOTAH DIRECT II, L.L.C., as a Guarantor
By: West Telemarketing Corporation Outbound,
as Member
By: /s/ Paul M. Mendlik
----------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Officer
(signature pages continue)
Participation Agreement
West Lease Facility
83
WEST INTERACTIVE CORPORATION,
as a Guarantor
By: /s/ Paul M. Mendlik
----------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Officer
WEST DIRECT, INC.,
as a Guarantor
By: /s/ Paul M. Mendlik
----------------------------------
Name: Paul M. Mendlik
Title: Treasurer
ATTENTION, LLC, as a Guarantor
By: /s/ Paul M. Mendlik
----------------------------------
Name: Paul M. Mendlik
Title: Manager
TEL MARK SALES, INC., as a Guarantor
By: /s/ Paul M. Mendlik
----------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Officer
(signature pages continue)
Participation Agreement
West Lease Facility
84
NORTHERN CONTACT, INC., as a
Guarantor
By: /s/ Paul M. Mendlik
----------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Officer
INTERCALL HOLDING CORPORATION,
as a Guarantor
By: /s/ Paul M. Mendlik
----------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Officer
INTERCALL, INC., as a guarantor
By: /s/ Paul M. Mendlik
----------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Officer
ITC SERVICE COMPANY, as a Guarantor
By: /s/ Paul M. Mendlik
----------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Officer
(signature pages continue)
Participation Agreement
West Lease Facility
85
ITC TELECOM VENTURES, INC., as a Guarantor
By: /s/ Paul M. Mendlik
-------------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Office
ITC WIRELESS INC., as a Guarantor
By: /s/ Paul M. Mendlik
-------------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Officer
INVIEW, INC., as a Guarantor
By: /s/ Paul M. Mendlik
-------------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Officer
INTERCALL WEB CONFERENCING, INC.,
as a Guarantor
By: /s/ Paul M. Mendlik
-------------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Officer
(signature pages continue)
Participation Agreement
West Lease Facility
86
WACHOVIA DEVELOPMENT CORPORATION,
as the Borrower and as the Lessor
By: /s/ Evander S. Jones, Jr.
-------------------------------------
Name: Evander S. Jones, Jr.
Title: Vice President
(signature pages continue)
Participation Agreement
West Lease Facility
87
WACHOVIA BANK, NATIONAL ASSOCIATION, as the Agent
By: /s/ Evander S. Jones, Jr.
-------------------------------------
Name: Evander S. Jones, Jr.
Title: Vice President
(signature pages continue)
Participation Agreement
West Lease Facility
88
WACHOVIA CAPITAL INVESTMENTS, INC., as a Lender
By: /s/ Evander S. Jones, Jr.
-------------------------------------
Name: Evander S. Jones, Jr.
Title: Vice President
(signature pages end)
Participation Agreement
West Lease Facility
89
Schedule 1
GCA Permitted Liens
Debtor Secured Party Jurisdiction Filing Type Filing Date Description of Collateral
- ------------------ ----------------- ------------ ----------- ----------- ------------------------------------
West Corporation Lombard US Delaware UCC-1 8/1/02; Certain equipment under the
Equipment (#21910276) amended Equipment Loan Agreement, dated July
Finance 8/28/02 22, 2002 among
Corporation West Corporation, West Interactive
Corporation,
Dakotah Direct II, L.L.C.,
West Telemarketing Corporation, West
Telemarketing Corporation Outbound
and Lombard US
West Telemarketing Lombard US Delaware UCC-1 8/1/02; Certain equipment under the
Corporation Equipment (#21910615) amended Equipment Loan Agreement dated July
Finance 8/28/02 22, 2002 among
Corporation West Corporation, West Interactive
Corporation,
Dakotah Direct II, L.L.C.,
West Telemarketing Corporation, West
Telemarketing Corporation Outbound
and Lombard US Equipment Finance
Corporation
West Telemarketing Banc of America Delaware UCC-1 11/26/01 Certain equipment specified therein
Corporation Leasing & (#11792659)
Outbound Capital, LLC
West Telemarketing Lombard US Delaware UCC-1 8/1/02; Certain equipment under the
Corporation Equipment (#21910680) amended Equipment Loan Agreement dated July
Outbound Finance 8/28/02 22, 2002 among
Corporation West Corporation, West Interactive
Corporation,
Dakotah Direct II, L.L.C.,
West Telemarketing Corporation, West
Telemarketing Corporation Outbound
and Lombard US Equipment Finance
Corporation
West Telemarketing Dell Financial Delaware UCC-1 4/18/03 Certain equipment specified therein
Corporation Services (#31015273)
Outbound
West Interactive Banc of America Delaware UCC-1 1/22/02 Certain equipment specified therein
Corporation Leasing & Capital (#20367825)
West Interactive Banc of America Delaware UCC-1 2/22/02 Certain equipment specified therein
(#20470405)
Participation Agreement
West Lease Facility
90
Debtor Secured Party Jurisdiction Filing Type Filing Date Description of Collateral
- ------------------ ----------------- ------------ ----------- ----------- ------------------------------------
Corporation Leasing & Capital
West Interactive Banc of America Delaware UCC-1 4/4/02 Certain equipment specified therein
Corporation Leasing & Capital (#20842843)
West Interactive Banc of America Delaware UCC-1 4/23/02 Certain equipment specified therein
Corporation Leasing & Capital (#20999775)
West Interactive Banc of America Delaware UCC-1 7/8/02 Certain equipment specified therein
Corporation Leasing & Capital (#21646987)
West Interactive Lombard US Delaware UCC-1 8/1/02; Certain equipment under the
Corporation Equipment (#21910599) amended Equipment Loan Agreement dated July
Finance 8/28/02 22, 2002 among
Corporation West Corporation, West Interactive
Corporation,
Dakotah Direct II, L.L.C.,
West Telemarketing Corporation, West
Telemarketing Corporation Outbound
and Lombard US Equipment Finance
Corporation
West Interactive Nortel Networks Delaware UCC-1 2/3/03 Certain equipment specified
Corporation (#30295330) therein. This lien is pursuant to a
Maintenance Agreement.
****Dakotah Direct EIS Illinois UCC-1 5/27/99 Certain equipment specified therein
II, LLC International, (#004042454)
Inc.
Dakotah Direct II, Lombard US Delaware UCC-1 8/28/02 Certain equipment under the
LLC Equipment (#22175549) Equipment Loan Agreement dated July
Finance 22, 2002 among
Corporation West Corporation, West Interactive
Corporation,
Dakotah Direct II, L.L.C.,
West Telemarketing Corporation, West
Telemarketing Corporation Outbound
and Lombard US Equipment Finance
Corporation
InterCall New Telecom New N/A No filing Security Telecommunications Equipment
Zealand, Ltd. Zealand, Ltd. interest purchased from Telecom by InterCall
granted to N.Z.
Telecom on
8/9/02
InterCall, Inc. Sun Microsystems N/A No filing Security Specified office equipment
Finance interest
granted on
11/7/02
Participation Agreement
West Lease Facility
91
Note: 1. See Schedule 3 for GCA Liens on real property.
2. **** denotes those GCA Liens that are in the process of being
terminated and released as no Indebtedness is outstanding under the
original obligation that such GCA Lien secured.
Participation Agreement
West Lease Facility
92
Schedule 2
Subsidiary Information
Jurisdiction of No. of Outstanding Owner of No. of Percentage
Incorporation Outstanding Warrants, Outstanding Shares of Shares
Subsidiary /Organization Shares Options, Etc. Shares Owned Owned
- -------------------- --------------- ----------- ------------- ---------------- ------ ----------
West Telemarketing Delaware 10,000 0 West Corporation 10,000 100%
Corporation
West Telemarketing Delaware 10,000 0 West 10,000 100%
Corporation II Telemarketing
Corporation
West Telemarketing Delaware 10,000 0 West Corporation 10,000 100%
Corporation
Outbound
West Facilities Delaware 10,000 0 West Corporation 10,000 100%
Corporation
West Interactive Delaware 10,000 0 West Corporation 10,000 100%
Corporation
West Direct, Inc. Delaware 10,000 0 West Corporation 10,000 100%
Tel Mark Sales, Inc. Delaware 10,000 0 West Corporation 10,000 100%
Attention, LLC Georgia West Corporation 100%
Northern Contact, Delaware 10,000 0 West 10,000 100%
Inc. Telemarketing
Corporation
Dakotah Direct II, Delaware West 100%
L.L.C. Telemarketing
Corporation
Outbound
Telecommunications Missouri 10,000 0 West 10,000 100%
Resources, Inc. Telemarketing
Corporation
Outbound
West International Delaware 1,000 0 West Corporation 1,000 100%
Corporation
West Telemarketing Nova Scotia, 10,000 0 Northern 10,000 100%
Canada, ULC Canada Contact, Inc.
West Interactive Delaware 10,000 0 West Interactive 10,000 100%
Canada, Inc. Corporation
Participation Agreement
West Lease Facility
93
Attention Funding, Delaware Attention, LLC 100%
L.L.C.
InterCall Holding Delaware 10,000 0 West Corporation 10,000 100%
Corporation (f/k/a
ITC Holding
Company, Inc.)
InterCall, Inc. Delaware 100 0 InterCall 100 100%
Holding
Corporation
ITC Service Company Georgia 500 0 InterCall, Inc. 500 100%
ITC Telecom Delaware 1000 0 InterCall, Inc. 1000 100%
Ventures, Inc.
ITC Wireless, Inc. Delaware 1000 0 ITC Service 1000 100%
Company
InView, Inc. Delaware 100 0 InterCall, Inc. 100 100%
InterCall Web Delaware 100 0 InterCall, Inc. 100 100%
Conferencing, Inc.
InterCall, Inc. New Brunswick 100 0 InterCall, Inc. 100 100%
InterCall Australia Australia 100 0 InterCall, Inc. 100 100%
Pty. Ltd.
InterCall Singapore Singapore 2 0 InterCall, Inc. 2 100%
Pte. Ltd.
InterCall Hong Kong Hong Kong 10,000 0 InterCall, Inc. 9,998 99%
Pty. Ltd.(1)
InterCall Asia Australia 100 0 InterCall, Inc. 100 100%
Pacific Holdings
Pty. Ltd.
InterCall New New Zealand 100 0 InterCall, Inc. 100 100%
Zealand Limited
InterCall United Kingdom 10 0 InterCall, Inc. 10 100%
Conferencing
Services Limited
Legal Connect United 2 0 InterCall 2 100%
- --------
(1) Disclosure Memorandum for Acquisition states: "InterCall, Inc. holds 9,998
shares, Robert Lamb holds one share and Simon Chen holds one share; Robert Lamb
and Simon Chen are both Employees of InterCall, Inc. or one of its Subsidiaries,
and each of Messrs. Lamb and Chen have entered into a Declaration of Trust
whereby InterCall, Inc. is the beneficial owner of all of the shares held by
each of them. Mr. Lamb is in the process of transferring his one share to
InterCall Web Conferencing, Inc., and Simon Chen is in the process of
transferring his one share to InterCall, Inc. The shares being transferred will
be subject to an assessment of a nominal stamp duty."
Participation Agreement
West Lease Facility
94
Limited Kingdom Conferencing
Services Limited
Participation Agreement
West Lease Facility
95
Schedule 3
Location of Real Property
Owned Real Property:
1. Approximately 0.39 acres owned by InterCall, Inc. located at 802 First
Avenue, West Point, Troup County, Georgia 31833.
2. Approximately 2.54 acres owned by InterCall, Inc. located at 1239 O.G.
Skinner Drive, West Point, Troup County, Georgia 31833.
3. 3300 20th Avenue, Valley, Chambers County, Alabama, owned by InterCall,
Inc. Title to this property is subject to the following:
(a) Lease by Powertel, Inc. of 1,800 square feet by lease
dated June 3, 2000.
4. Approximately 5.69 acres owned by InterCall, Inc. located at 1211 O.G.
Skinner Drive, West Point, Troup County, Georgia 31833.
5. 401 E. 4th Street, West Point, Troup County, Georgia 31833, owned by
InterCall, Inc.
6. 403 E. 4th Street, West Point, Troup County, Georgia 31833, owned by
InterCall, Inc.
7. 620 Greison Trail, Newnan, Coweta County, Georgia 31833, owned by
InterCall, Inc.
8. Approximately 14 acres of land adjacent to O.G. Skinner Dr. (a.k.a.
Pittman Street), West Point, Troup County, Georgia 31833, owned by
InterCall, Inc.
9. Approximately 1.63 acres located adjacent to and south of property
described herein as 1211 O.G. Skinner Drive, West Point, Troup Count,
Georgia 31833, owned by InterCall, Inc.
10. 11808 Miracle Hills Dr., Omaha, Douglas County, Nebraska 68154, owned
by West Corporation and subject to that certain Mortgage Agreement, by
and between West Corporation and First National Bank of Omaha.
11. 5031 Commerce Park Circle, Pensacola, Escambia County, Florida 32507,
owned by West Corporation (f/k/a West TeleServices Corporation).
12. 2311 S. Illinois Ave. US Route 51, Carbondale, Jackson County, Illinois
62901, owned by West Telemarketing Corporation Outbound.
13. 1015 Belvidere, El Paso, El Paso County, Texas 79912, owned by West
Telemarketing Corporation Outbound.
14. Buildings 1000, 2000, 3000 and 5000, 11330 IH 10 West, San Antonio,
Bexar County, Texas 78249, owned by West Telemarketing Corporation
Outbound.
15. Building 7000, 10931 Laureate Drive, San Antonio, Bexar County, Texas
78349, leased by West Facilities Corporation and subject to that
certain synthetic lease transaction (see Schedule 61.(b)).
Participation Agreement
West Lease Facility
96
16. Building 8000, 10940 Laureate Drive, San Antonio, Bexar County, Texas
78349, owned by West Telemarketing Corporation Outbound.
Leased Real Property:
1. Lease to InterCall, Inc., as lessee, for the 5th Floor, Suite 508, 232
Madison Avenue, New York, New York 10016.
2. Lease to InterCall, Inc., as lessee, for approximately 2,489 rsf, known
as Suite 495, Glenridge Highlands I, 5555 Glenridge Connector, Atlanta,
Georgia 30342.
3. Lease to InterCall, Inc., as lessee, for approximately 2,222 rsf at
Corporate Center, 110 East Broward Boulevard, Ft. Lauderdale, Florida
33301.
4. Lease to InterCall, Inc., as lessee, for approximately 3,715 rsf, known
as 3601 West 76th Street, Edina, Minnesota 55435.
5. Lease to InterCall, Inc., as lessee, for approximately 1,440 rsf, known
as Suite 150, Lake Forest Place, 4445 Lake Forest Drive, Cincinnati,
Ohio 45242.
6. Lease to InterCall, Inc., as lessee, for approximately 3,323 rsf, known
as Suite 1110, Prentice Point, 5299 DTC Boulevard, Englewood, Colorado
80111.
7. Lease to InterCall, Inc., as lessee, for approximately 2,681 rsf, known
as Suite 1060, 3 Ballston Plaza, 1100 North Glebe Road, Arlington,
Virginia 22201.
8. Lease to InterCall, Inc., as lessee, for approximately 2,867 rsf, known
as Suite 414, 3 Bala Plaza, Bala Cynwyd, Pennsylvania 19004.
9. Lease to InterCall, Inc., as lessee, for approximately 4,689 rsf, known
as Suite 210, 990 Washington Street, Dedham, Massachusetts 02026.
10. Lease to InterCall, Inc., as lessee, for approximately 3,214 rsf, known
as 99 Cherry Hill Road, Parsippany, New Jersey 07054.
11. Lease to InterCall, Inc., as lessee, for office space at 80 Broad
Street, New York, New York 10004-2009.
12. Lease to InterCall, Inc., as lessee, for approximately 3,355 rsf, known
as Suite 840, 433 East Las Colinas Boulevard, Irving, Texas 75039.
13. Lease to InterCall, Inc., as lessee, for approximately 2,796 rsf at
2700 Post Oak Boulevard, Houston, Texas 77056.
14. Lease to InterCall, Inc., as lessee, for 1001 Southwest 5th Ave., Suite
110, Portland, Oregon 97204.
15. Lease to InterCall, Inc., as lessee, for approximately 3,110 rsf, known
as Suite 220, 18201 Von Karman Ave., Irvine, California 92612.
Participation Agreement
West Lease Facility
97
16. Lease to InterCall, Inc., as lessee, for approximately 2,261 rsf at 999
Baker Way, San Mateo, California 94404.
17. Lease to InterCall, Inc., as lessee, for approximately 2,224 rsf, known
as Suite 230 of the Denny Building, Seattle, Washington 98121.
18. Lease to InterCall, Inc., as lessee, for approximately 2,675 rsf, known
as Suite 810, 425 California Street, San Francisco, California 94104.
19. Lease to InterCall, Inc., as lessee, for approximately 5,039 rsf, known
as 300 South Tower, Peachtree 25th Building, Atlanta, Georgia 30309.
20. Lease to InterCall, Inc., as lessee, for approximately 23,261 rsf,
known as Suites 225, 400, 413, 420, 421, 464 and 520 for premises
located at Citicorp Plaza, 8420 West Bryn Mawr, Chicago, Illinois
60631.
21. Lease to InterCall, Inc., as lessee, for the office space located at
3618 West Market Street, Suite 100, Room 1, Fairlawn, Ohio 44333.
22. Lease to InterCall Australia Pty. Ltd., as lessee, for Level 8, 155
George Street, Sydney, New South Wales, Australia.
23. Lease to InterCall Australia Pty. Ltd., as lessee, for Suite 1301, 227
Collins Street, Melbourne, Victoria, Australia.
24. Lease to InterCall Singapore Pte. Ltd., as lessee, for 80 Raffles
Place, #35-23 OB Plaza 1, Singapore.
25. Lease to InterCall, Inc., as lessee, for office space at 7300 West
110th Street, Overland Park, Kansas 66210.
26. Lease to InterCall, Inc., as lessee, for Suites 212 and 220, Building
A, Trinity Court, Wokingham Road, Bracknell, RG42 1PL (UK).
27. Lease to InterCall Conferencing Services Limited, as lessee, for
offices on the second floor at Topeka House, Barnwood, Gloucester, UK.
28. License Agreement to InterCall, Inc., as lessee, for office space at
Kilcullen House, 1 Haigh Terrace, Dun Lioghaire, Dublin, Ireland.
29. Lease to InterCall, Inc., as lessee, for 3131 East Camelback, Suite
200, Phoenix, Arizona 85016.
30. Lease to InterCall, Inc., as lessee, for approximately 4,074 rsf, known
as Suite 210, 3301 Northland Drive, Austin, Texas 78731.
31. Lease to InterCall, Inc., as lessee, for approximately 1,752 rsf, known
as Space 102, 5387 Manhattan Circle, Boulder, Colorado 80303.
32. Lease to InterCall, Inc., as lessee, for approximately 3,395 rsf, known
as Suite 206, 11340 West Olympic Boulevard, Los Angeles, California
90064.
Participation Agreement
West Lease Facility
98
33. Lease to InterCall, Inc., as lessee, for office space at 80 River
Street, Hoboken, New Jersey 07030.
34. Office Lease between HQ Global Workplaces and InterCall, Inc., as
lessee, dated September 2, 1999.
35. Lease to InterCall, Inc., as lessee, for office space at Level 10
Telecom House, 8 Hereford Street, Auckland 1003, New Zealand.
36. Lease to InterCall, Inc., as lessee, for equipment at 2203 64th
Boulevard, Valley, Alabama 30864.
37. Lease to InterCall Web Conferencing Services Limited, as lessee, for
office space at LaGrande Arche Paroi Nord, 92044, Paris La Defense,
France.
38. Lease to InterCall, Inc., as lessee, for office space at HQ Boone
Boulevard Center, Vienna, Virginia 22182.
39. Lease to InterCall, Inc., as lessee, for office space at HQ Francisco
Bay Center, San Francisco, California 94111.
40. Lease to West Telemarketing Corporation, as lessee, for office space at
9910 Maple Street, Omaha, Nebraska 68134.
41. Lease to West Telemarketing Corporation, as lessee, for office space at
3311 N. 93rd Street and 9218 Bedford Avenue, Omaha, Nebraska 68134.
42. Lease to West Telemarketing Corporation, as lessee, for office space at
11626 Nicholas Street, Omaha, Nebraska 68134.
43. Lease to West Telemarketing Corporation, as lessee, for office space at
10120 Maple Street, Omaha, Nebraska 68134.
44. Lease to West Interactive Corporation, as lessee, for office space at
9211 Bedford Street, Omaha, Nebraska 68134.
45. Lease to West Interactive Corporation, as lessee, for office space at
9223 Bedford Street and 3231 N. 93rd Street, Omaha, Nebraska 68134.
46. Lease to West Facilities Corporation, as lessee, for Suite 208, 99
Railroad Station Plaza, Hicksville, New York 11801.
47. Lease to West Telemarketing Corporation, as lessee, for office space at
808 N. 108th Ave., Omaha, Nebraska 68154.
48. Lease to West Telemarketing Corporation, as lessee, for office space at
10011 Maple Street, Omaha, Nebraska 68134.
49. Lease to West Interactive Corporation, as lessee, for office space at
4015 S. 132nd Street, Omaha, Nebraska 68137.
Participation Agreement
West Lease Facility
99
50. Lease to West Telemarketing Corporation, as lessee, for office space at
11626 Nicholas Street, Omaha, Nebraska 68154.
51. Lease to West Telemarketing Corporation, as lessee, for office space at
10614 Burt Street, Omaha, Nebraska 68114.
52. Lease to West Corporation (f/k/a West TeleServices Corporation), as
lessee, for office space at 11810 Nicholas Street, Omaha, Nebraska
68154.
53. Lease to West Corporation (f/k/a West TeleServices Corporation), as
lessee, for office space at 3141 and 3147 North 93rd Street, Omaha,
Nebraska 68134.
54. 11650 Miracle Hills Drive, Omaha, Douglas County, Nebraska 68154,
leased by West Corporation, as lessee, and subject to that certain
synthetic lease transaction (see Schedule 6.1(b)).
55. Lease to West Corporation (f/k/a West TeleServices Corporation), as
lessee, for space at 4645 Concord Road, Beaumont, Texas 77703.
56. Lease to West Interactive Corporation, as lessee, for space at 1425
Champa Street, Denver, Colorado 80202.
57. Lease to West Interactive Corporation, as lessee, for space at 3003
Cobb Parkway, Atlanta, Georgia 30339.
58. Lease to West Telemarketing Corporation, as lessee, for space at 2323
W. 38th Street, Unit 1A, Erie, Pennsylvania 16506.
59. Lease to West Telemarketing Corporation, as lessee, for space at 227
Fox Hill Rd., Unit D-8, Hampton, Virginia 23669.
60. Lease to West Telemarketing Corporation, as lessee, for space at 1545
South 77 Sunshine Strip, Harlingen, Texas 78550.
61. Lease to West Telemarketing Corporation, as lessee, for space at 5000
Bradford Drive, Huntsville, Alabama 35805.
62. Lease to West Telemarketing Corporation, as lessee, for space at 1331
West Memorial Road, Oklahoma City, Oklahoma 73114.
63. Lease to West Telemarketing Corporation, as lessee, for space at 1315
Financial Blvd., Reno, Nevada 89510.
64. Lease to West Telemarketing Corporation, as lessee, for space at Harlem
Alpine Center, 1975 Harlem Road, Loves Park, Illinois 61111.
65. Lease to West Telemarketing Corporation, as lessee, for Suite 100, 3810
S. 103rd East Ave., Tulsa, Oklahoma 74146.
66. Lease to West Telemarketing Corporation Outbound, as lessee, for space
at 328 Ross Clark Circle, Dothan, Alabama 36303.
Participation Agreement
West Lease Facility
100
67. Lease to West Telemarketing Corporation Outbound, as lessee, for space
at 55 Sunbridge Drive, Fayetteville, Arkansas 72703.
68. Lease to West Telemarketing Corporation Outbound, as lessee, for Suite
126, 3400 Rogers Ave., Fort Smith, Arkansas 72902.
69. Lease to West Telemarketing Corporation Outbound, as lessee, for Suite
210, 740 General Stewart Way, Hinesville, Georgia 31313.
70. Lease to West Telemarketing Corporation Outbound, as lessee, for space
at 703 Swanner Loop, Killeen, Texas 76543.
71. Lease to West Interactive Corporation, as lessee, for space at 3605
Ambassador Caffery Pkwy., Lafayette, Louisiana 70503.
72. Lease to West Telemarketing Corporation Outbound, as lessee, for space
at 1910 West Loop 289, Lubbock, Texas 70407.
72. Lease to West Telemarketing Corporation Outbound, as lessee, for Suite
100, 1800 South Main Street, McAllen, Texas 78503.
74. Lease to West Telemarketing Corporation Outbound, as lessee, for space
at 3262 Dauphin, Mobile, Alabama 36606.
75. Lease to West Telemarketing Corporation Outbound, as lessee, for the
5th Floor, 3800 E. 42nd Street, Odessa, Texas 79762.
76. Lease to West Telemarketing Corporation Outbound, as lessee, for Suite
3, 119 Hamilton Park Drive, Tallahassee, Florida 32304.
77. Lease to Attention, LLC, as lessee, for space at 3432 Jefferson Ave.,
Texarkana, Arkansas 78124 pursuant to that Assignment of Lease from
West Telemarketing Corporation Outbound.
78. Lease to West Telemarketing Corporation Outbound, as lessee, for space
at 2103 Universal City Blvd., Universal City, Texas 78148.
79. Lease to West Telemarketing Corporation Outbound, as lessee, for Suite
L, 7524 Bosque Blvd., Waco, Texas 76712.
80. Lease to Tel Mark Sales, Inc., as lessee, for space at 100 West College
Avenue, Appleton, Wisconsin 54911.
81. Lease to Tel Mark Sales, Inc., as lessee, for space at 1111 E. South
River Street, Appleton, Wisconsin 54915.
82. Lease to Attention, LLC, as lessee, for space at 1000 N. Travis Street,
Sherman, Texas 75090.
83. Lease to Attention, LLC, as lessee, for Suite 300, 5300 Oakbrook
Parkway, Norcross, Georgia 30093.
Participation Agreement
West Lease Facility
101
84. Lease to Attention, LLC, as lessee, for space at 220 A North Sunset
Blvd., Sherman, Texas 75092.
85. Lease to Dakotah Direct II, LLC, as lessee, for space at S. 4300 Geiger
Blvd., Spokane, Washington 99224.
86. Lease to Dakotah Direct II, LLC, as lessee, for space at 101 Sherman
Avenue, Coeur d' Alene, Idaho 83814.
87. Lease to Dakotah Direct II, LLC, as lessee, for space at 157 South
Howard Street, Spokane, Washington 99201.
88. Lease to Dakotah Direct II, LLC, as lessee, for space at 5615 Dunbarton
Ave., Pasco, Washington 99301.
89. Lease to Dakotah Direct II, LLC, as lessee, for space at 9317 E. Sinto,
Spokane, Washington 99206.
90. Lease to West Telemarketing Canada, ULC, as lessee, for space at 2261
Keating X Road, Saanichton, BC V8M 2A5.
91. Lease to West Telemarketing Corporation, as lessee, for space at 7850
Anselmo Lane, Baton Rouge, Louisiana 70810.
92. Lease to West Telemarketing Corporation Outbound, as lessee, for space
at 1223 Lee Trevino Dr., El Paso, Texas 79907.
93. Lease to InterCall, Inc., as lessee, for Suite 202, 1804 Embarcadero
Road, Palo Alto, California.
94. Lease to InterCall, Inc., as lessee, for Office #'s 527, 534 and 539
located at 8300 Boone Blvd., Suite 500, Vienna, Virginia 22182.
95. Lease to InterCall, Inc., as lessee, for Office #'s 164, 165, 167 and
171 located at 1750 Montgomery Street, San Francisco, California 94111.
Participation Agreement
West Lease Facility
102
Schedule 4
Chief Executive Offices
West Corporation
11808 Miracle Hills Drive
Omaha, Nebraska 68154
West Telemarketing Corporation
11808 Miracle Hills Drive
Omaha, Nebraska 68154
Northern Contact, Inc.
11808 Miracle Hills Drive
Omaha, Nebraska 68154
West Telemarketing Corporation II
11808 Miracle Hills Drive
Omaha, Nebraska 68154
West Telemarketing Corporation Outbound
10931 Laureate Drive Suite 7140
San Antonio, Texas 78249
Dakotah Direct II, L.L.C.
2850 West Golf Road, 5th Floor
Rolling Meadows, Illinois 60008
West Interactive Corporation
11808 Miracle Hills Drive
Omaha, Nebraska 68154
West Facilities Corporation
11808 Miracle Hills Drive
Omaha, Nebraska 68154
West Direct, Inc.
11808 Miracle Hills Drive
Omaha, Nebraska 68154
Attention, LLC
5300 Oakbrook Parkway Suite 300
Norcross, GA 30093
Tel Mark Sales, Inc.
1111 E. South River Street
Appleton, WI 54915
Participation Agreement
West Lease Facility
InterCall Holding Corporation (f/k/a ITC Holding Company, Inc.)
Citicorp Plaza
8420 West Bryn Mawr
Chicago, Illinois 60631
InterCall, Inc.
1239 O.G. Skinner Drive
West Point, Georgia 31833
InterCall Australia Pty. Ltd.
Level 8, 155 George Street
Sydney, New South Wales, Australia
InterCall Singapore Pte. Ltd.
80 Raffles Place
#35-23 OB Plaza 1
Singapore, China
InterCall Conferencing Services Limited
Second Floor
Topeka House
Barnwood, Gloucester, UK
InterCall New Zealand Limited
Level 10 Telecom House
8 Hereford Street
Auckland 1003, New Zealand
InterCall, Inc. (Canada)
10117 Jasper Ave. Suite 520
Edmonton, Alberta
T5J 1 W8
Canada
ITC Service Company
3300 20th Avenue
Valley, Alabama 36854
ITC Telecom Ventures, Inc.
3300 20th Avenue
Valley, Alabama 36854
ITC Wireless, Inc.
3300 20th Avenue
Valley, Alabama 36854
InView, Inc.
Citicorp Plaza
8420 West Bryn Mawr
Chicago, Illinois 60631
Participation Agreement
West Lease Facility
InterCall Web Conferencing, Inc.
Citicorp Plaza
8420 West Bryn Mawr
Chicago, Illinois 60631
InterCall Hong Kong Pty. Ltd.
1318 Two Pacific Place
88 Queensway
Hong Kong
InterCall Asia Pacific Holdings Pty. Ltd.
Level 8, 155 George Street
Sydney, New South Wales, Australia
Participation Agreement
West Lease Facility
Schedule 5
Labor Matters
None.
Participation Agreement
West Lease Facility
Schedule 6
Indebtedness
1. Indebtedness of West Corporation not exceeding $12,000,000.00 in the
aggregate pursuant to that certain Mortgage Loan, by and between West
Corporation and First National Bank of Omaha, dated as of January 30,
1998, as amended as of March 8, 2002.
2. Indebtedness in an aggregate principal amount not to exceed
$41,000,000.00 under that certain synthetic lease transaction pursuant
to the Operative Agreements as described in that certain Participation
Agreement, dated as of the Closing Date, by and among West Facilities
Corporation, as lessee, Wachovia Development Corporation, as lessor,
the lenders party thereto and Wachovia Bank, National Association.
3. Earn-out obligations of West Corporation pursuant to that certain
Purchase Agreement, dated as of July 23, 2002, by and among Attention,
LLC, the Sellers (as defined therein), the Sellers' Representative (as
defined therein) and West Corporation. Pursuant to the Attention, LLC
acquisition, additional consideration will be payable over the four
year period between 2004 and 2008, which will range from a minimum of
$21,500,000.00 to a maximum of $50,000,000.00 based upon Attention,
LLC's satisfaction of certain earnings objectives during the years
ending December 31, 2003 through 2007. At December 31, 2002, the
$21,500,000.00 minimum payment was accrued.
4. Earn-out obligations of West Corporation pursuant to that certain Stock
Purchase Agreement, dated as of December 7, 2001, by and between West
Corporation and John F. Gillen, in connection with West Corporation's
purchase of Tel Mark Sales, Inc. There is a provision for a three-year
contingent earn-out with a maximum earn-out of $5,000,000.00 per year
relating to the acquisition of Tel Mark Sales, Inc. in 2002. The
earn-out obligation is based upon the acquired entity achieving certain
revenue growth objectives. Based on the revenue growth achieved by this
entity an accrual of $2,752,000.00 was recorded during fiscal year
2002.
5. As of April 30, 2003, indebtedness in the approximate aggregate amount
of $12,000,000.00 outstanding pursuant to those Equipment Leases by and
between Banc of America Leasing and Capital, LLC and West Interactive
Corporation covering certain equipment as delineated in the collateral
descriptions for the following UCC filings: #20367825 (1/22/02
Delaware), #20470405 (2/22/02 Delaware), #20842751 (4/4/02 Delaware),
#20999775 (4/23/02 Delaware) and #21646987 (7/8/02 Delaware).
6. As of April 30, 2003 indebtedness in the approximate amount of
$1,900,000.00 outstanding pursuant to that certain Equipment Lease
dated as of July 22, 2002, by and among Lombard US Equipment Finance
Corporation, West Corporation, West Interactive Corporation, West
Telemarketing Corporation, West Telemarketing Corporation Outbound and
Dakotah Direct II, LLC covering certain equipment as delineated in the
collateral descriptions for the following UCC filings: #21910276
(8/1/02 Delaware), #21910615 (8/1/02 Delaware), #21910680 (8/1/02
Delaware), #21910599 (8/1/02 Delaware) and #22175549 (8/28/02
Delaware). Please note that the only entities with outstanding
indebtedness under the Lombard Equipment Lease are West Interactive
Corporation and West Telemarketing Corporation Outbound.
7. As of April 30, 2003, indebtedness in the approximate amount of
$1,300,000.00 pursuant to that certain Equipment Lease by and between
West Telemarketing Corporation Outbound and Banc of
Participation Agreement
West Lease Facility
America Leasing & Capital, LLC covering certain equipment as delineated
in the collateral description in the following UCC filing: #11792659
(11/26/01 Delaware).
8. As of April 30, 2003, indebtedness in the approximate amount of
$300,000.00 pursuant to that certain Equipment Lease by and between
West Telemarketing Corporation Outbound and Dell Financial Services
covering certain equipment as delineated in the collateral description
in the following UCC filing: #31015273 (4/18/03 Delaware).
9. On August 9, 2002, InterCall New Zealand, Ltd. purchased certain
telecommunications equipment valued at approximately $598,000 from
Telecom New Zealand, Ltd. Payments to Telecom are due in installments,
and Telecom took a security interest in the telecommunications
equipment to secure payment.
10. Equipment Lease, dated as of November 7, 2002, by and between Sun
Microsystems Finance and InterCall.
Participation Agreement
West Lease Facility
EXHIBIT A
REQUISITION FORM
(Pursuant to Sections 4.2, 5.2 and 5.3 of the Participation Agreement)
WEST FACILITIES CORPORATION, a Delaware corporation (the "Company")
hereby certifies as true and correct and delivers the following Requisition to
WACHOVIA BANK, NATIONAL ASSOCIATION, as the agent for the Lenders and the Lessor
(each such term as hereinafter defined) and respecting the Security Documents,
as the agent for the Secured Parties (the "Agent"):
Reference is made herein to that certain Participation Agreement dated
as of May 9, 2003 (as amended, modified, extended, supplemented, restated and/or
replaced from time to time, the "Participation Agreement") among the Company, as
the lessee (the "Lessee"), West Corporation and the various entities which are
parties thereto from time to time as guarantors (individually, a "Guarantor" and
collectively, the "Guarantors"), Wachovia Development Corporation, as the lessor
and as the borrower (the "Lessor"), the various banks and other lending
institutions which are parties thereto from time to time, as lenders (the
"Lenders"), and the Agent. Capitalized terms used herein but not otherwise
defined herein shall have the meanings set forth therefor in the Participation
Agreement.
Check one or both:
[ ] INITIAL CLOSING DATE: ________________________________________
(three (3) Business Days prior notice required for Advance)
[ ] PROPERTY CLOSING DATE: _______________________________________
(three (3) Business Days prior notice required for Advance)
1. Transaction Expenses and other fees, expenses and disbursements under
Sections 7.1(a) or 7.1(b) of the Participation Agreement and any and
all other amounts contemplated to be financed under the Participation
Agreement including without limitation any broker's fees, taxes,
recording fees and the like (with supporting invoices or closing
statement attached):
Party to Whom Amount Owed
Amount is Owed (in US Dollars)
_____________________________ _______________________
_____________________________ _______________________
_____________________________ _______________________
A-1
2. Description of Land (which shall be a legal description of the Land in
connection with an Advance to pay Property Acquisition Costs): See
attached Schedule 1
3. Description of Improvements: See attached Schedule 2
4. Description of Equipment: See attached Schedule 3
5. Aggregate Loans and Lessor Advances requested since the Initial Closing
Date with respect to each Property for which Advances are requested
under this Requisition (listed on a Property by Property basis),
including without limitation all amounts requested under this
Requisition: [IDENTIFY ON A PROPERTY BY PROPERTY BASIS]
$______________ [Property]
In connection with this Requisition, the Company hereby requests that
the Lenders make Loans to the Lessor in the amount of $______________ and that
the Lessor make a Lessor Advance to the Lessor in the amount of
$________________. The Company hereby certifies (i) that the foregoing amounts
requested do not exceed the total aggregate of the Available Lender Commitments
plus the Available Lessor Commitments and (ii) each of the provisions of the
Participation Agreement applicable to the Loans and Lessor Advance requested
hereunder have been complied with as of the date of this Requisition.
The Company requests the Loans be allocated as follows:
$______________ ABR Loans
$______________ Eurodollar Loans
The Company requests the Lessor Advances be allocated as follows:
$______________ ABR Lessor Advances
$______________ Eurodollar Lessor Advances
6. Each and every representation and warranty of the Credit Parties
contained in the Operative Agreements to which any such Credit Party is
a party is true and correct on and as of the date hereof.
7. No Default or Event of Default has occurred and is continuing under any
Operative Agreement.
8. Each Operative Agreement to which any Credit Party is a party is in
full force and effect with respect to each such Credit Party.
A-2
9. Each Credit Party has duly performed and complied with all covenants,
agreements and conditions contained in the Participation Agreement or
in any Operative Agreement required to be performed or complied with by
it on or prior to the date hereof.
The Company has caused this Requisition to be executed by its duly
authorized officer as of this _____ day of __________, ______.
WEST FACILITIES CORPORATION
By: ________________________________
Name: ______________________________
Title: _____________________________
A-3
Schedule 1
Description of Land
(Legal Description and Street Address)
A-4
Schedule 2
Description of Improvements
A-5
Schedule 3
Description of Equipment
General Description Make Model Serial Number
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A-6
EXHIBIT B
[FORM OF OPINION TO BE REVISED.]
[Outside Counsel Opinion for the Lessee]
(Pursuant to Section 5.3(j) of the Participation Agreement)
_____________,_______
TO THOSE ON THE ATTACHED DISTRIBUTION LIST
Re: Synthetic Lease Financing Provided in favor of West Facilities
Corporation
Dear Sirs:
We have acted as special counsel to [IF CREDIT SUPPORT FROM A PARTY OTHER THAN
THE LESSEE IS PART OF THE TRANSACTION, THIS OPINION MUST BE MODIFIED TO
REFERENCE SUCH PARTY AND THE DOCUMENTS TO WHICH IT IS A PARTY], West Facilities
Corporation, a Delaware corporation (the "Lessee") in connection with certain
transactions contemplated by the Participation Agreement dated as of May 9, 2003
(the "Participation Agreement"), among the Lessee, West Corporation and the
various entities which are parties thereto from time to time as guarantors
(individually, a "Guarantor" and collectively, the "Guarantors"), Wachovia
Development Corporation, as the lessor and as the borrower (the "Lessor"), the
various banks and other lending institutions which are parties thereto from time
to time, as lenders (the "Lenders") and Wachovia Bank, National Association, as
the agent for the Primary Financing Parties and respecting the Security
Documents, as the agent for the Secured Parties (the "Agent"). This opinion is
delivered pursuant to Section 5.3(j) of the Participation Agreement. All
capitalized terms used herein, and not otherwise defined herein, shall have the
meanings assigned thereto in Appendix A to the Participation Agreement.
In connection with the foregoing, we have examined originals, or copies
certified to our satisfaction, of [IDENTIFY THE APPLICABLE OPERATIVE AGREEMENTS,
INCLUDING EACH MORTGAGE INSTRUMENT, RELATED UCC FIXTURE FILINGS, ADDITIONAL UCCS
(HEREINAFTER DEFINED), DEEDS AND MEMORANDA OF LEASE] and such other corporate
documents and records of the Lessee, certificates of public officials and
representatives of the Lessee as to certain factual matters, and such other
instruments and documents which we have deemed necessary or advisable to examine
for the purpose of this opinion. With respect to such examination, we have
assumed (i) the statements of fact made in all such certificates, documents and
instruments are true, accurate and complete; (ii) the due authorization,
execution and delivery of the Operative Agreements by the parties thereto; (iii)
the genuineness of all signatures, the authenticity and completeness of all
documents, certificates, instruments, records and corporate records submitted to
us as originals and the conformity to the original instruments of all documents
submitted to us as copies, and the authenticity and completeness of the
originals of such copies; (iv) that all parties have all
B-1
requisite corporate power and authority to execute, deliver and perform the
Operative Agreements; and (v) except as to the Lessee, the enforceability of the
Mortgage Instrument, the Memorandum of Lease and the UCC financing statements
against all parties thereto.
Based on the foregoing, and having due regard for such legal considerations as
we deem relevant, and subject to the limitations and assumptions set forth
herein, including without limitation the matters set forth in the last two (2)
paragraphs hereof, we are of the opinion that:
(a) The Mortgage Instrument and Memorandum of Lease are
enforceable in accordance with their respective terms, except as limited by laws
generally affecting the enforcement of creditors' rights, which laws will not
materially prevent the realization of the benefits intended by such documents.
(b) Each form of Mortgage Instrument and UCC fixture filing
relating thereto, attached hereto as Schedules 1 and 2, respectively, is in
proper form for filing and recording with the offices of [IDENTIFY THE RECORDING
OFFICES OF THE RESPECTIVE COUNTY CLERKS WHERE THE PROPERTIES ARE TO BE LOCATED].
Upon filing of each Mortgage Instrument and UCC fixture filing in [IDENTIFY THE
RECORDING OFFICES OF THE RESPECTIVE COUNTY CLERKS WHERE THE PROPERTIES ARE TO BE
LOCATED], the Agent will have a valid, perfected lien and security interest in
that portion of the Collateral described in such Mortgage Instrument or UCC
fixture filing to the extent such Collateral is comprised of real property
and/or fixtures.
(c) The forms of UCC financing statements relating to the Security
Documents, attached hereto as Schedule 3 (the "Additional UCCs"), are in proper
form for filing and recording with the offices of [IDENTIFY THE SECRETARY OF
STATE WHERE THE LESSEE IS LOCATED FOR PURPOSES OF THE UCC]. Upon filing of the
Additional UCCs in [IDENTIFY THE SECRETARY OF STATE WHERE THE LESSEE IS LOCATED
FOR PURPOSES OF THE UCC], the Agent will have a valid, perfected lien and
security interest in that portion of the Collateral which can be perfected by
filing UCC-1 financing statements under Article 9 of the UCC.
(d) Each form of Deed and Memorandum of Lease is in appropriate
form for filing and recording with the [IDENTIFY THE RECORDING OFFICES OF THE
RESPECTIVE COUNTY CLERKS FOR THE COUNTIES WHERE THE PROPERTIES ARE TO BE
LOCATED].
(e) Each Memorandum of Lease, when filed and recorded with the
[IDENTIFY THE RECORDING OFFICES OF THE RESPECTIVE COUNTY CLERKS FOR THE COUNTIES
WHERE THE PROPERTIES ARE TO BE LOCATED], will have been filed and recorded in
all public offices in the State of [__________] in which filing or recording is
necessary to provide constructive notice of the Lease to third Persons and to
establish of record the interest of the Lessor thereunder as to the Properties
described in each such Memorandum of Lease.
(f) The execution and delivery by the Lessor of the Operative
Agreements to which it is a party and compliance by the Lessor with all of the
provisions thereof do not and will not contravene any law, rule or regulation of
[IDENTIFY THE STATE].
B-2
(g) By reason of their participation in the transaction
contemplated under the Operative Agreements, none of the Agent or any Primary
Financing Party has to (a) qualify as a foreign corporation in [IDENTIFY THE
STATE], (b) file any application or any designation for service of process in
[IDENTIFY THE STATE] or (c) pay any franchise, income, sales, excise, stamp or
other taxes of any kind to [IDENTIFY THE STATE].
(h) The provisions in the Operative Agreements concerning Rent,
interest, fees, prepayment premiums and other similar charges do not violate the
usury laws or other similar laws regulating the use or forbearance of money of
[IDENTIFY THE STATE].
(i) If the transactions contemplated by the Operative Agreements
are characterized as a lease transaction by a court of competent jurisdiction,
the Lease and the applicable Lease Supplement shall demise to the Lessee a valid
leasehold interest in the Properties described in such Lease Supplement.
(j) If the transactions contemplated by the Operative Agreements
are characterized as a loan transaction by a court of competent jurisdiction,
the combination of the Mortgage Instruments, the Deeds, the Lease and the
applicable Lease Supplements (and the other Operative Agreements incorporated
therein by reference) are sufficient to create a valid, perfected lien or
security interest in the Properties therein described, enforceable as a mortgage
in [IDENTIFY THE STATE].
This opinion is limited to the matters stated herein and no opinion is implied
or may be inferred beyond the matters stated herein. This opinion is based on
and is limited to the laws of the State of [___________] and the federal laws of
the United States of America. Insofar as the foregoing opinion relates to
matters of law other than the foregoing, no opinion is hereby given.
This opinion is for the sole benefit of the Lessee, the Primary Financing
Parties, the Agent and their respective successors and assigns and may not be
relied upon by any other person other than such parties and their respective
successors and assigns without the express written consent of the undersigned.
The opinions expressed herein are as of the date hereof and we make no
undertaking to amend or supplement such opinions if facts come to our attention
or changes in the current law of the jurisdictions mentioned herein occur which
could affect such opinions.
Very truly yours,
[LESSEE'S OUTSIDE COUNSEL]
B-3
Distribution List
Wachovia Bank, National Association, as the Agent
The various banks and other lending institutions which are parties to the
Participation Agreement from time to time, as additional Lenders
West Facilities Corporation, as the Lessee
West Corporation, as a Guarantor
The various entities which are parties thereto from time to time as Guarantors
Wachovia Development Corporation, as the Lessor and as the Borrower
B-4
Schedule 1
Form of Mortgage Instrument
B-5
Schedule 2
Forms of UCC Fixture Filings
B-6
Schedule 3
Forms of UCC Financing Statements
B-7
EXHIBIT C
WEST FACILITIES CORPORATION
OFFICER'S CERTIFICATE
(Pursuant to Section 5.3(w) of the Participation Agreement)
WEST FACILITIES CORPORATION, a Delaware corporation (the "Company"),
DOES HEREBY CERTIFY as follows:
1. Each and every representation and warranty of each Credit
Party contained in the Operative Agreements to which it is a
party is true and correct on and as of the date hereof.
2. No Default (other than any Credit Agreement Default) or Event
of Default (other than any Credit Agreement Event of Default)
has occurred and is continuing under any Operative Agreement.
3. Each Operative Agreement to which any Credit Party is a party
is in full force and effect with respect to it, except as the
same may be limited by applicable bankruptcy, insolvency,
fraudulent transfer or conveyance, reorganization, moratorium
or other similar laws relating to or affecting creditors' or
lessors' rights generally and general principles of equity.
4. Each Credit Party has duly performed and complied with all
covenants, agreements and conditions contained in the
Participation Agreement (hereinafter defined) or in any
Operative Agreement required to be performed or complied with
by it on or prior to the date hereof.
Capitalized terms used in this Officer's Certificate and not otherwise defined
herein have the respective meanings ascribed thereto in the Participation
Agreement dated as of May 9, 2003 among the Company, as the Lessee, West
Corporation and the various entities which are parties thereto from time to time
as guarantors (the "Guarantors"), Wachovia Development Corporation, as the
lessor and as the borrower, the various banks and other lending institutions
which are parties thereto from time to time, as lenders (the "Lenders"), and
Wachovia Bank, National Association, as the agent for the Primary Financing
Parties and respecting the Security Documents, as the agent for the Secured
Parties (the "Agent").
IN WITNESS WHEREOF, the Company has caused this Officer's Certificate to be duly
executed and delivered as of this _____ day of __________, ______.
WEST FACILITIES CORPORATION
By: ________________________________
Name: ______________________________
Title: _____________________________
C-1
EXHIBIT D
WEST FACILITIES CORPORATION
SECRETARY'S CERTIFICATE
(Pursuant to Section 5.3(y) of the Participation Agreement)
WEST FACILITIES CORPORATION, a Delaware corporation (the "Company")
DOES HEREBY CERTIFY as follows:
1. Attached hereto as Schedule 1 is a true, correct and complete
copy of the resolutions of the Board of Directors of the
Company duly adopted by the Board of Directors of the Company
on __________. Such resolutions have not been amended,
modified or rescinded since their date of adoption and remain
in full force and effect as of the date hereof.
2. Attached hereto as Schedule 2 is a true, correct and complete
copy of the Certificate of Incorporation of the Company on
file in and as certified by the Office of the Secretary of
State of Delaware. Such Certificate of Incorporation has not
been amended, modified or rescinded since their date of
adoption and remain in full force and effect as of the date
hereof.
3. Attached hereto as Schedule 3 is a true, correct and complete
copy of the Bylaws of the Company. Such Bylaws have not been
amended, modified or rescinded since their date of adoption
and remain in full force and effect as of the date hereof.
4. The persons named below now hold the offices set forth
opposite their names, and the signatures opposite their names
and titles are their true and correct signatures.
Name Office Signature
________________ __________________ _____________________
________________ __________________ _____________________
IN WITNESS WHEREOF, the Company has caused this Secretary's Certificate to be
duly executed and delivered as of this _____ day of ___________, ______.
WEST FACILITIES CORPORATION
By: ________________________________
Name: ______________________________
Title: _____________________________
D-1
Schedule 1
Board Resolutions
D-2
Schedule 2
Certificate of Incorporation
D-3
Schedule 3
Bylaws
D-4
EXHIBIT E
WACHOVIA DEVELOPMENT CORPORATION
OFFICER'S CERTIFICATE
(Pursuant to Section 5.3(z) of the Participation Agreement)
WACHOVIA DEVELOPMENT CORPORATION, a North Carolina corporation (the
"Lessor"), DOES HEREBY CERTIFY as follows:
1. Each and every representation and warranty of the Lessor
contained in the Operative Agreements to which it is a party
is true and correct on and as of the date hereof.
2. Each Operative Agreement to which the Lessor is a party is in
full force and effect with respect to it, except as the same
may be limited by applicable bankruptcy, insolvency,
fraudulent transfer or conveyance, reorganization, moratorium
or other similar laws relating to or affecting creditors' or
lessors' rights generally and general principles of equity.
3. The Lessor has duly performed and complied with all covenants,
agreements and conditions contained in the Participation
Agreement (hereinafter defined) or in any Operative Agreement
required to be performed or complied with by it on or prior to
the date hereof.
4. No Credit Agreement Default or Credit Agreement Event of
Default has occurred and is continuing.
5. The Lessor is not an entity which (a) is or holds itself out
as being engaged primarily, or proposes to engage primarily,
in the business of investing, reinvesting or trading in
securities; (b) is engaged or proposes to engage in the
business of issuing face-amount certificates of the
installment type, or has been engaged in such business and has
any such certificate outstanding; or (c) is engaged or
proposes to engage in the business of investing, reinvesting,
owning, holding or trading in securities, and owns or proposes
to acquire "investment securities" having a value exceeding 40
per centum of the value of its total assets (exclusive of
government securities and cash items) on an unconsolidated
basis. As used in this paragraph, "investment securities"
includes all securities except (i) government securities, (ii)
securities issued by employees' securities companies, and
(iii) securities issued by majority-owned subsidiaries of the
owner which are not investment companies. As used in this
paragraph, "government securities" means any security issued
or guaranteed as to principal or interest by the United
States, or by a person controlled or supervised by and acting
as an instrumentality of the Government of the United States
pursuant to authority granted by the
E-1
Congress of the United States; or any certificate of deposit
for any of the foregoing.
Capitalized terms used in this Officer's Certificate and not otherwise defined
herein have the respective meanings ascribed thereto in the Participation
Agreement dated as of May 9, 2003 among West Facilities Corporation, as the
Lessee, West Corporation and the various entities which are parties thereto from
time to time as guarantors (the "Guarantors"), the Lessor, the various banks and
other lending institutions which are parties thereto from time to time, as
lenders (the "Lenders") and Wachovia Bank, National Association, as the agent
for the Primary Financing Parties and respecting the Security Documents, as the
agent for the Secured Parties (the "Agent").
IN WITNESS WHEREOF, the Lessor has caused this Officer's Certificate to be duly
executed and delivered as of this _____ day of __________, ______.
WACHOVIA DEVELOPMENT CORPORATION
By: ________________________________
Name: ______________________________
Title: _____________________________
E-2
EXHIBIT F
WACHOVIA DEVELOPMENT CORPORATION
SECRETARY'S CERTIFICATE
(Pursuant to Section 5.3(aa) of the Participation Agreement)
CERTIFICATE OF ASSISTANT SECRETARY
I, ______________________, duly elected and qualified _________
Secretary of Wachovia Development Corporation, a North Carolina corporation (the
"Company"), hereby certify as follows:
1. Attached hereto as Schedule 1 is a true, correct and complete
copy of the resolutions of the Board of Directors of the
Company duly adopted by the Board of Directors of the Company
on __________. Such resolutions have not been amended,
modified or rescinded since their date of adoption and remain
in full force and effect as of the date hereof.
2. Attached hereto as Schedule 2 is a true, correct and complete
copy of the Articles of Incorporation of the Company on file
in and as certified by the Office of the Secretary of State of
North Carolina. Such Articles of Incorporation have not been
amended, modified or rescinded since their date of adoption
and were in full force and effect on the date of the
resolutions referenced in paragraph 1 and remain in full force
and effect as of the date hereof.
3. Attached hereto as Schedule 3 is a true, correct and complete
copy of the Bylaws of the Company. Such Bylaws have not been
amended, modified or rescinded since their date of adoption
and remain in full force and effect as of the date hereof.
4. The persons named below now hold the offices set forth
opposite their names, and the signatures opposite their names
and titles are their true and correct signatures.
Name Office Signature
___________________ _____________________ ______________________
___________________ _____________________ ______________________
G-1
IN WITNESS WHEREOF, the Company has caused this __________ Secretary's
Certificate to be duly executed and delivered as of this _____ day of
__________, _____.
WACHOVIA DEVELOPMENT CORPORATION
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
G-2
SCHEDULE 1
RESOLUTIONS
G-3
SCHEDULE 2
ARTICLES OF INCORPORATION
G-4
SCHEDULE 3
BYLAWS
G-5
Appendix A
Rules of Usage and Definitions
I. Rules of Usage
The following rules of usage shall apply to this Appendix A and the Operative
Agreements (and each appendix, schedule, Exhibit and annex to the foregoing)
unless otherwise required by the context or unless otherwise defined therein:
(a) Except as otherwise expressly provided, any definitions set
forth herein or in any other document shall be equally applicable to the
singular and plural forms of the terms defined.
(b) Except as otherwise expressly provided, references in any
document to articles, sections, paragraphs, clauses, annexes, appendices,
schedules or exhibits are references to articles, sections, paragraphs, clauses,
annexes, appendices, schedules or exhibits in or to such document.
(c) The headings, subheadings and table of contents used in any
document are solely for convenience of reference and shall not constitute a part
of any such document nor shall they affect the meaning, construction or effect
of any provision thereof.
(d) References to any Person shall include such Person, its
successors, permitted assigns and permitted transferees.
(e) Except as otherwise expressly provided, reference to any
agreement means such agreement as amended, modified, extended, supplemented,
restated and/or replaced from time to time in accordance with the applicable
provisions thereof.
(f) Except as otherwise expressly provided, references to any law
includes any amendment or modification to such law and any rules or regulations
issued thereunder or any law enacted in substitution or replacement therefor.
(g) When used in any document, words such as "hereunder",
"hereto", "hereof" and "herein" and other words of like import shall, unless the
context clearly indicates to the contrary, refer to the whole of the applicable
document and not to any particular article, section, subsection, paragraph or
clause thereof.
(h) References to "including" means including without limiting the
generality of any description preceding such term and for purposes hereof the
rule of ejusdem generis shall not be
applicable to limit a general statement, followed by or referable to an
enumeration of specific matters, to matters similar to those specifically
mentioned.
(i) References herein to "attorney's fees", "legal fees", "costs
of counsel" or other such references shall be deemed to include the allocated
cost of in-house counsel.
(j) Each of the parties to the Operative Agreements and their
counsel have reviewed and revised, or requested revisions to, the Operative
Agreements, and the usual rule of construction that any ambiguities are to be
resolved against the drafting party shall be inapplicable in the construction
and interpretation of the Operative Agreements and any amendments or exhibits
thereto.
(k) Capitalized terms used in any Operative Agreements which are
not defined in this Appendix A but are defined in another Operative Agreement
shall have the meaning so ascribed to such term in the applicable Operative
Agreement.
(l) In computing any period of time for purposes of any Operative
Agreement, the mechanics for counting the number of days set forth in Rule 6 of
the Federal Rules of Civil Procedure shall be observed.
(m) Unless the context otherwise requires, references in the
Operative Agreements to the acquisition of a Property (including without
limitation a ground lease interest in a Property) by the Lessor shall be deemed
to refer to the acquisition of title to such Property or the acquisition of a
ground lease interest therein, in each case in connection with an assignment of
the Existing Notes and the Existing Holder Certificates and an assumption of the
Trust's obligations under the Existing Operative Agreements.
(n) Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall be
made, and all financial statements required to be delivered hereunder shall be
prepared in accordance with GAAP applied on a basis consistent with the most
recent audited consolidated financial statements of the Parent delivered to the
Agent and the Primary Financing Parties; provided that, if the Parent shall
notify the Agent and the Primary Financing Parties that they wish to amend any
covenant in Section 8A.9 to eliminate the effect of any change in GAAP on the
operation of such covenant (or if the Agent notifies the Parent that the Primary
Financing Parties wish to amend Section 8A.9 for such purpose), then the
Parent's compliance with such covenant shall be determined on the basis of GAAP
in effect immediately before the relevant change in GAAP became effective, until
either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Parent and the Primary Financing Parties.
(o) For purposes of this Participation Agreement and the other
Operative Agreements, any reference to a GCA Lender party to a Hedging Agreement
shall include (i) any Affiliate of such GCA Lender party to a Hedging Agreement
and (ii) any Person that was a GCA
2
Lender (or Affiliate of such GCA Lender) at the time it entered into the Hedging
Agreement that has ceased to be a GCA Lender.
3
II. Definitions
"ABR" or "Alternate Base Rate" shall mean, for any day, a rate per
annum equal to the greater of (a) the Prime Lending Rate in effect on such day,
and (b) the Federal Funds Effective Rate in effect on such day plus one-half of
one percent (0.5%). For purposes hereof: "Prime Lending Rate" shall mean the
rate announced by the Agent from time to time as its prime lending rate as in
effect from time to time. Each change in the Prime Lending Rate shall be
effective as of the opening of business on the date such change in the Prime
Lending Rate occurs. The Prime Lending Rate is a reference rate and is one of
several interest rate bases used by the Agent and does not necessarily represent
the lowest or most favorable rate offered by the Agent actually charged to any
customer. Any Lender may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate. The Prime Lending Rate shall
change automatically and without notice from time to time as and when the prime
lending rate of the Agent changes. "Federal Funds Effective Rate" shall mean,
for any period, a fluctuating interest rate per annum equal for each day during
such period to the weighted average of the rates on overnight Federal funds
transactions with members or the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by the
Agent from three (3) Federal funds brokers of recognized standing selected by
it. Any change in the ABR due to a change in the Prime Lending Rate or the
Federal Funds Effective Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Lending Rate or the Federal Funds
Effective Rate, respectively. If for any reason the Agent shall have determined
(which determination shall be conclusive in the absence of manifest error) that
it is unable to ascertain the Federal Funds Effective Rate, for any reason,
including the inability or failure of the Agent to obtain sufficient quotations
in accordance with the terms thereof, the Alternate Base Rate shall be
determined without regard to clause (b) of the first sentence of this
definition, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change
in the Prime Lending Rate or the Federal Funds Effective Rate shall be effective
on the opening of business on the date of such change.
"ABR Lessor Advance" shall mean a Lessor Advance bearing a Lessor Yield
based on the ABR.
"ABR Loans" shall mean Loans the rate of interest applicable to which
is based upon the ABR.
"Acceleration" shall have the meaning given to such term in Section 6
of the Credit Agreement.
"Accounts" shall have the meaning given to such term in Section 1 of
the Security Agreement.
4
"Acquired Company" shall mean ITC Holding Company, Inc., a Delaware
corporation.
"Acquisition" shall mean the acquisition of the Acquired Company by the
Parent pursuant to the Acquisition Documents.
"Acquisition Documents" shall mean that certain Agreement and Plan of
Merger dated as of March 27, 2003, as amended as of April 11, 2003, and as
further amended as of May 9, 2003, among the Parent, Dialing Acquisition Corp.,
a Delaware corporation, and the Acquired Company, as amended, modified or
supplemented from time to time.
"Additional Credit Party" shall mean each Person that becomes a
Guarantor under the Operative Agreements by execution of a Joinder Agreement in
accordance with Section 8A.10 of the Participation Agreement.
"Advance" shall have the meaning given to such term in Section 5.3 of
the Participation Agreement.
"Affiliate" shall mean, with respect to any Person, any Person or group
acting in concert in respect of the Person in question that, directly or
indirectly, controls or is controlled by or is under common control with such
Person.
"After Tax Basis" shall mean, with respect to any payment to be
received, the amount of such payment increased so that, after deduction of the
amount of all Federal, state and local taxes required to be paid by the
recipient calculated at the then maximum marginal income tax rates generally
applicable to Persons of the same type as the recipients with respect to the
receipt by the recipient of such amounts (less any tax savings realized as a
result of any deduction attributable to the payment of the indemnified amount or
the event or circumstances giving rise to the obligation to make such payment),
such increased payment (as so reduced) is equal to the payment otherwise
required to be made.
"Agent" shall mean Wachovia Bank, National Association, as agent for
the Primary Financing Parties, or any successor agent appointed in accordance
with the terms of the Participation Agreement and respecting the Security
Documents, as agent for the Secured Parties.
"Aggregate Revolving Committed Amount" shall mean one hundred
twenty-five million dollars ($125,000,000.00) as such amount may be reduced from
time to time as provided in Section 2.6, or such other applicable sections, of
the Guarantor Credit Agreement.
"Applicable Percentage" shall mean, for any day, the rate per annum set
forth below opposite the applicable level then in effect:
5
APPLICABLE PERCENTAGE APPLICABLE PERCENTAGE APPLICABLE
FOR EURODOLLAR LESSOR APPLICABLE PERCENTAGE FOR ABR LESSOR PERCENTAGE FOR ABR
ADVANCES IN EXCESS OF FOR EURODOLLAR LESSOR ADVANCE IN EXCESS OF LESSOR ADVANCES NOT
12% OF THE AGGREGATE ADVANCE NOT IN 12% OF THE AGGREGATE IN EXCESS OF 12% OF
CONSOLIDATED PROPERTY COST FOR ALL EXCESS OF 12% OF THE PROPERTY COST FOR ALL THE AGGREGATE
LEVERAGE PROPERTIES AND AGGREGATE PROPERTY PROPERTIES AND PROPERTY COST FOR ALL
LEVEL RATIO EURODOLLAR LOAN COST FOR ALL PROPERTIES ABR LOANS PROPERTIES
- ------- ---------------- --------------------- ----------------------- ---------------------- ---------------------
I < 0.50x 1.00 % 1.50 % 0.00 % 0.50%
- ------- ---------------- --------------------- ------------------------ ---------------------- ---------------------
II > or = 0.50x but 1.25 % 1.75 % 0.00 % 0.50%
< 1.00x
- ------- ---------------- --------------------- ------------------------ ---------------------- ---------------------
III > or = 1.00x but 1.50 % 2.00 % 0.25 % 0.75%
< 1.50x
- ------- ---------------- --------------------- ------------------------ ---------------------- ---------------------
IV > or = 1.50x 2.00 % 2.50 % 0.75 % 1.25%
- ------- ---------------- --------------------- ------------------------ ---------------------- ---------------------
The Applicable Percentage shall be determined and adjusted
quarterly on the date five (5) Business Days after the date on which
the Agent has received from the Parent the quarterly financial
information and certifications required to be delivered to the Agent
and the Primary Financing Parties in accordance with the provisions of
Sections 8A.1(b) and 8A.2(b) pursuant to which the Parent notifies the
Agent of a change in the applicable pricing level based on the
financial information contained therein (each an "Interest
Determination Date"). Such Applicable Percentage shall be effective
from such Interest Determination Date until the next such Interest
Determination Date. If the Parent shall fail to provide the quarterly
financial information and certifications in accordance with the
provisions of Sections 8A.1(b) and 8A.2(b), the Applicable Percentage
from such Interest Determination Date shall, on the date five (5)
Business Days after the date by which the Parent was so required to
provide such financial information and certifications to the Agent and
the Primary Financing Parties, be based on Level IV until such time as
such information and certifications are provided, whereupon the Level
shall be determined by the then current Consolidated Leverage Ratio.
"Appraisal" shall mean, with respect to any Property, an as-built
appraisal to be delivered in connection with the Participation Agreement or in
accordance with the terms of the Lease, in each case prepared by a reputable
appraiser reasonably acceptable to the Agent, which in the reasonable judgment
of counsel to the Agent, complies with all of the provisions of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, as amended, the rules
and regulations adopted pursuant thereto, and all other applicable Legal
Requirements.
"Appraisal Procedure" shall have the meaning given to such term in
Section 22.4 of the Lease.
"Approved Bank" shall have the meaning given to such term in the
definition of Cash Equivalents.
"Approved State" shall mean each of the following: Nebraska, Texas and
any other state within the continental United States proposed by the Lessee and
consented to in writing by the Agent.
6
"Appurtenant Rights" shall mean (a) all agreements, easements, rights
of way or use, rights of ingress or egress, privileges, appurtenances,
tenements, hereditaments and other rights and benefits at any time belonging or
pertaining to the Land underlying the Improvements or the Improvements,
including without limitation the use of any streets, ways, alleys, vaults or
strips of land adjoining, abutting, adjacent or contiguous to the Land and (b)
all permits, licenses and rights, whether or not of record, appurtenant to such
Land or the Improvements.
"Arranger" shall mean Wachovia Securities, Inc.
"Asset Disposition" shall mean the disposition of any or all of the
assets (including, without limitation, the Capital Stock of a GCA Subsidiary or
any ownership interest in a joint venture) of any GCA Credit Party or any GCA
Subsidiary whether by sale, lease, transfer or otherwise. The term "Asset
Disposition" shall not include (i) Specified Sales, (ii) the sale, lease or
transfer of assets permitted by Section 8B.4(a)(iii) or (iv) hereof, or (iii)
any Equity Issuance.
"Assigned Facility" shall have the meaning provided therefor in Section
3 of the Assignment and Recharacterization Agreement.
"Assigning Parties" shall mean the Existing Lenders and the Existing
Holders.
"Assignment and Acceptance" shall mean the Assignment and Acceptance in
the form attached to the Credit Agreement as Exhibit B.
"Assignment and Recharacterization Agreement" shall mean that certain
Assignment and Recharacterization Agreement dated on or about the Initial
Closing Date by and among the parties to the Participation Agreement and the
parties to the Existing Participation Agreement, as specified therein.
"Available Lender Commitment" shall mean, as to any Lender at any time,
an amount equal to the excess, if any, of (a) the amount of the Lender
Commitment of such Lender over (b) the aggregate principal amount of all Loans
made by such Lender as of such date after giving effect to Section 5.2(d) of the
Participation Agreement (but without giving effect to any other repayments or
prepayments of any Loans).
"Available Lessor Commitments" shall mean, as to the Lessor at any
time, an amount equal to the excess, if any, of (a) the amount of the Lessor
Commitment of the Lessor over (b) the aggregate principal amount of all Lessor
Advances as of such date after giving effect to Section 5.2(d) of the
Participation Agreement (but without giving effect to any other repayments or
prepayments of any Lessor Advances).
"Bankruptcy Code" shall mean Title 11 of the U. S. Code entitled
"Bankruptcy," as now or hereafter in effect or any successor thereto.
7
"Basic Documents" shall mean the following: the Participation
Agreement, the Guaranty, the Credit Agreement, the Notes, the Lease and the
Security Agreement.
"Basic Rent" shall mean an amount equal to the scheduled interest and
Lessor Yield due on any Scheduled Interest Payment Date (but not including
interest on any overdue amounts under Section 2.8(b) of the Credit Agreement or
otherwise, or any yield on overdue amounts calculated at the Lessor Overdue
Rate) payable in accordance with the Lease and the Participation Agreement.
"Basic Term" shall commence on the Initial Closing Date and shall
terminate on the fifth annual anniversary of the Initial Closing Date unless
earlier terminated.
"Basic Term Expiration Date" shall have the meaning specified in
Section 2.2 of the Lease.
"Beneficiaries" shall have the meaning specified in the Guaranty.
"Benefitted Lender" shall have the meaning specified in Section 9.10(a)
of the Credit Agreement.
"Bill of Sale" shall mean a Bill of Sale regarding Equipment in form
and substance reasonably satisfactory to the Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrower" shall mean Wachovia Development Corporation, a North
Carolina corporation, as the borrower under the Credit Agreement.
"Borrower's Interest" shall mean the Borrower's rights in, to and under
any Property, the Operative Agreements, any other property contributed on behalf
of the Lessee and any and all other property or assets from time to time of the
Borrower obtained with respect to the Operative Agreements, including, without
limitation, Modifications, and all amounts of Rent, insurance proceeds and
condemnation awards, indemnity or other payments of any kind received by the
Borrower pursuant to the Operative Agreements; provided, the term "Borrower's
Interest" shall not include any Lessor Advance or Lessor Yield.
"Borrowing Date" shall mean any Business Day specified in a notice
delivered pursuant to Section 2.3 of the Credit Agreement as a date on which the
Borrower requests the Lenders to make Loans thereunder.
"Business" shall have the meaning set forth in Section 6.3(i).
8
"Business Day" shall mean a day other than a Saturday, Sunday or other
day on which commercial banks in North Carolina, Nebraska and Texas or any other
states from which the Agent, any Lender or the Lessor funds or engages in
administrative activities with respect to the transactions under the Operative
Agreements are authorized or required by law to close; provided, however, that
when used in connection with a Eurodollar Loan or a Lessor Advance based on the
Eurodollar Rate, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Lease" shall mean any lease of property, real or personal, the
obligations with respect to which are required to be capitalized on a balance
sheet of the lessee in accordance with GAAP.
"Capital Stock" shall mean (i) in the case of a corporation, capital
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of capital stock, (iii) in the case of a partnership, partnership
interests (whether general or limited), (iv) in the case of a limited liability
company, membership interests and (v) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
"Cash Equivalents" shall mean (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition ("Government Obligations"), (ii)
U.S. dollar denominated (or foreign currency fully hedged or other non-hedged
foreign currency in an aggregate amount not to exceed $5,000,000) time deposits,
certificates of deposit, Eurodollar time deposits and Eurodollar certificates of
deposit of (x) any domestic commercial bank of recognized standing having
capital, surplus and retained earnings in excess of $250,000,000, (y) any
domestic commercial bank having capital and surplus of less than $250,000,000,
provided that no more than $25,000,000 of such investments shall be deemed "Cash
Equivalents" at any time, or (z) any bank whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from Moody's is at
least P-1 or the equivalent thereof (any such bank being an "Approved Bank"), in
each case with maturities of not more than 364 days from the date of
acquisition, (iii) commercial paper and variable or fixed rate notes issued by
any Approved Bank (or by the parent company thereof) or any variable rate notes
issued by, or guaranteed by any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
better by Moody's and maturing within six months of the date of acquisition,
(iv) repurchase agreements with a bank or trust company (including a Primary
Financing Party) or a recognized securities dealer having capital, surplus and
retained earnings in excess of $500,000,000 for direct obligations issued by or
fully guaranteed by the United States of America and (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.
9
"Casualty" shall mean any damage or destruction of all or any portion
of the Property as a result of a fire or other casualty.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., as
amended by the Superfund Amendments and Reauthorization Act of 1986.
"Change of Control" shall mean (a) any Person or two or more Persons
acting in concert (other than members of the West Family Group) shall have
acquired "beneficial ownership," directly or indirectly, of, or shall have
acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their acquisition of,
or control over, Voting Stock of the Parent (or other securities convertible
into such Voting Stock) representing 50% or more of the combined voting power of
all Voting Stock of the Parent, or (b) Continuing Directors shall cease for any
reason to constitute a majority of the members of the board of directors of the
Parent then in office. As used herein, "beneficial ownership" shall have the
meaning provided in Rule 13d-3 of the Securities and Exchange Commission under
the Securities Exchange Act of 1934.
"Chattel Paper" shall have the meaning given to such term in Section 1
of the Security Agreement.
"Claims" shall mean any and all obligations, liabilities, losses,
actions, suits, penalties, claims, demands, costs and expenses (including
without limitation reasonable attorney's fees and expenses) of any nature
whatsoever.
"Clarke Sublease" shall mean the Lease Agreement dated as of September
19, 1988 between Woodway Phase II, Ltd., a Texas limited partnership, as
landlord, and Clarke Checks, Inc., a Delaware corporation, as tenant, as amended
by the First Amendment to Lease Agreement dated January 12, 1989, a Second
Amendment and Modification of Lease Amendment dated November 21, 1989, a Third
Amendment to Lease Agreement dated September 1, 1997 and a Fourth Amendment to
Lease Agreement dated February 15, 2001. Notwithstanding the Rules of Usage set
forth in Section I of this Appendix A, the Clarke Sublease shall not include any
amendment, modification, restatement and/or replacement except those referenced
above in this definition of the "Clarke Sublease" and each other amendment,
modification, restatement and/or replacement which is consented to in writing by
the Agent (acting upon direction from the Majority Secured Parties).
"Closing Date" shall mean the Initial Closing Date and the Property
Closing Date.
"Code" shall mean the Internal Revenue Code of 1986 together with rules
and regulations promulgated thereunder, as amended from time to time, or any
successor statute thereto.
10
"Collateral" shall mean all assets of the Lessor and the Lessee, now
owned or hereafter acquired, upon which a Lien is purported to be created by one
or more of the Security Documents.
"Commencement Date" shall have the meaning specified in Section 2.2 of
the Lease.
"Commercial Tort Claims" shall have the meaning given to such term in
Section 1 of the Security Agreement.
"Commitment" shall mean the Lender Commitment of each Lender and the
Lessor Commitment of the Lessor.
"Commitment Percentage" shall mean, as to any Primary Financing Party
at any time, the percentage which such Primary Financing Party's Commitment then
constitutes of the aggregate Commitments (or, at any time after the Commitments
shall have expired or terminated, the percentage which the aggregate principal
amount of such Primary Financing Party's Financing then outstanding constitutes
of the aggregate principal amount of all of the Financing then outstanding).
"Commitment Period" shall mean the Initial Closing Date only.
"Commonly Controlled Entity" shall mean an entity, whether or not
incorporated, which is under common control with the Parent within the meaning
of Section 4001 of ERISA or is part of a group which includes the Parent and
which is treated as a single employer under Section 414 of the Code.
"Condemnation" shall mean any taking or sale of the use, access,
occupancy, easement rights or title to any Property or any part thereof, wholly
or partially (temporarily or permanently), by or on account of any actual or
threatened eminent domain proceeding or other taking of action by any Person
having the power of eminent domain, including without limitation an action by a
Governmental Authority to change the grade of, or widen the streets adjacent to,
any Property or alter the pedestrian or vehicular traffic flow to any Property
so as to result in a change in access to such Property, or by or on account of
an eviction by paramount title or any transfer made in lieu of any such
proceeding or action.
"Consolidated Capital Expenditures" shall mean, for any period, all
capital expenditures of the Consolidated Group on a consolidated basis for such
period, as determined in accordance with GAAP. The term "Consolidated Capital
Expenditures" shall not include capital expenditures in respect of the
reinvestment of proceeds derived from Recovery Events received by the Parent and
the GCA Subsidiaries to the extent that such reinvestment is permitted under the
Operative Agreements.
"Consolidated EBITDA" shall mean, as of any date for the four fiscal
quarter period ending on such date with respect to the Consolidated Group on a
consolidated basis, the sum of (i)
11
Consolidated Net Income, plus (ii) an amount which, in the determination of
Consolidated Net Income, has been deducted for (A) Consolidated Interest
Expense, (B) total federal, state, local and foreign income, value added and
similar taxes and (C) depreciation and amortization expense, all as determined
in accordance with GAAP; provided that Consolidated EBITDA shall include
add-backs relating to the Acquisition of up to $26,000,000, as calculated by the
Agent. Notwithstanding the above, Consolidated EBITDA shall be (i) for the
fiscal quarter ending June 30, 2002, $63,156,000, (ii) for the fiscal quarter
ending September 30, 2002, $57,190,000, (iii) for the fiscal quarter ending
December 31, 2002, $70,782,000, and (iv) for the fiscal quarter ending March 31,
2003, $66,360,000.
"Consolidated Fixed Charge Coverage Ratio" shall mean, as of the end of
each fiscal quarter of the Consolidated Group for the four fiscal quarter period
ending on such date with respect to the Consolidated Group on a consolidated
basis, the ratio of (i) Consolidated EBITDA for the applicable period minus
Consolidated Capital Expenditures for the applicable period to (ii) the sum of
Consolidated Interest Expense for the applicable period plus Scheduled Funded
Debt Payments for the applicable period plus payments made in connection with
earnout obligations for the applicable period to the extent permitted hereunder
plus cash taxes paid during the applicable period. Notwithstanding the
foregoing, for purposes of calculating the Consolidated Fixed Charge Coverage
Ratio for the first three complete fiscal quarters to occur after the Closing
Date, the Consolidated Fixed Charge Coverage Ratio shall be determined by
annualizing the components of the denominator thereof such that for the first
complete fiscal quarter to occur after the Closing Date such components would be
multiplied by four (4), the first two complete fiscal quarters would be
multiplied by two (2) and the first three complete fiscal quarters would be
multiplied by one and one-third (1 1/3).
"Consolidated Group" shall mean the Parent and its Consolidated
Subsidiaries.
"Consolidated Interest Expense" shall mean, for any period, all cash
interest expense of the Consolidated Group (including, without limitation, the
interest component under Capital Leases), as determined in accordance with GAAP.
For purposes hereof, Consolidated Interest Expense for the first three complete
fiscal quarters to occur after the Closing Date shall be determined by
annualizing Consolidated Interest Expense such that for the first complete
fiscal quarter to occur after the Closing Date such components would be
multiplied by four (4), the first two complete fiscal quarters would be
multiplied by two (2) and the first three fiscal quarters would be multiplied by
one and one-third (1 1/3).
"Consolidated Leverage Ratio" shall mean, as of the end of any fiscal
quarter of the Consolidated Group for the four fiscal quarter period ending on
such date with respect to the Consolidated Group on a consolidated basis, the
ratio of (a) Funded Debt of the Consolidated Group on a consolidated basis on
the last day of such period to (b) the sum of (i) Consolidated EBITDA for such
period plus (ii) any payments made by the GCA Credit Parties during such period
under Synthetic Leases (including, without limitation, pursuant to the Operative
Agreements).
12
"Consolidated Net Income" shall mean, as of any date for the four
fiscal quarter period ending on such date with respect to the Consolidated Group
on a consolidated basis, net income (excluding extraordinary items) after
Consolidated Interest Expense, income taxes and depreciation and amortization,
all as determined in accordance with GAAP.
"Consolidated Subsidiary" shall mean, as to any Person, any subsidiary
of such Person which under the rules of GAAP consistently applied should have
its financial results consolidated with those of such Person for purposes of
financial accounting statements.
"Continuing Directors" shall mean during any period of up to 24
consecutive months commencing after the Closing Date, individuals who at the
beginning of such 24 month period were directors of the Parent (together with
any new director whose election by the Parent's board of directors or whose
nomination for election by the Parent's shareholders was approved by a vote of
at least two-thirds of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination for
election was previously so approved).
"Contractor" shall mean each entity with whom the Lessee contracts to
construct any Improvements or any portion thereof on the Property.
"Contractual Obligation" shall mean, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Controlled Group" shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Lessee, are treated as a single employer
under Section 414 of the Code.
"Credit Agreement" shall mean the Credit Agreement, dated on or about
the Initial Closing Date, among the Borrower, the Agent and the Lenders, as
specified therein.
"Credit Agreement Default" shall mean any event or condition which,
with the lapse of time or the giving of notice, or both, would constitute a
Credit Agreement Event of Default.
"Credit Agreement Event of Default" shall mean any event or condition
defined as an "Event of Default" in Section 6 of the Credit Agreement.
"Credit Documents" shall mean the Participation Agreement, the Credit
Agreement, the Notes, the Security Documents and any other Operative Agreement
which relates to or governs the relationship among the Agent, the Lenders and/or
the Borrower.
"Credit Parties" shall mean the Lessee, the Parent and each other
entity party to the Participation Agreement from time to time as a Guarantor,
including without limitation entities joined as Guarantors pursuant to Section
8A.10 of the Participation Agreement.
13
"Debt Issuance" shall mean the issuance of any Indebtedness for
borrowed money by any Credit Party or any of its GCA Subsidiaries (excluding,
for purposes hereof, any Equity Issuance or any Indebtedness of the Parent and
the GCA Subsidiaries permitted to be incurred pursuant to Section 8B.1 hereof).
"Debt Rating" shall mean, as of any date of determination thereof and
with respect to any Person, the ratings most recently published by the Rating
Agencies relating to the unsecured, unsupported senior long-term debt
obligations of such Person.
"Deed" shall mean a warranty deed regarding the Land and/or
Improvements in form and substance satisfactory to the Agent.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Primary Financing Party" shall mean, at any time, any
Primary Financing Party that, at such time (a) has failed to make a Loan or
Lessor Advance required pursuant to the terms of the Operative Agreements, (b)
has failed to pay to the Agent or any Primary Financing Party an amount owed by
such Primary Financing Party pursuant to the terms of the Operative Agreements,
or (c) has been deemed insolvent or has become subject to a bankruptcy or
insolvency proceeding or to a receiver, trustee or similar official.
"Deficiency Balance" shall have the meaning given in Section 22.1(b) of
the Lease Agreement.
"Deposit Accounts" shall have the meaning given to such term in Section
1 of the Security Agreement.
"Documents" shall have the meaning given to such term in Section 1 of
the Security Agreement.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Domestic GCA Subsidiary" shall mean any GCA Subsidiary that is
organized and existing under the laws of the United States or any state or
commonwealth thereof or under the laws of the District of Columbia.
"Election Date" shall have the meaning given to such term in Section
20.1 of the Lease.
"Election Notice" shall have the meaning given to such term in Section
20.1 of the Lease.
"Eligible Lessor" shall mean a Person with a minimum net worth of at
least $200,000,000.00 and a Debt Rating of a Rating Agency of "A" (or its
equivalent) or higher.
14
"Employee Benefit Plan" or "Plan" shall mean an employee benefit plan
(within the meaning of Section 3(3) of ERISA, including without limitation any
Multiemployer Plan), or any "plan" as defined in Section 4975(e)(1) of the Code
and as interpreted by the Internal Revenue Service and the Department of Labor
in rules, regulations, releases or bulletins in effect on any Closing Date.
"Environmental Claims" shall mean any investigation, notice, violation,
demand, allegation, action, suit, injunction, judgment, order, consent decree,
penalty, fine, lien, proceeding, or claim (whether administrative, judicial, or
private in nature) arising (a) pursuant to, or in connection with, an actual or
alleged violation of, any Environmental Law, (b) in connection with any
Hazardous Substance, (c) from any abatement, removal, remedial, corrective, or
other response action in connection with a Hazardous Substance, Environmental
Law, or other order of a Tribunal or (d) from any actual or alleged damage,
injury, threat, or harm to health, safety, natural resources, or the
environment.
"Environmental Laws" shall mean any Law, permit, consent, approval,
license, award, or other authorization or requirement of any Tribunal relating
to emissions, discharges, releases, threatened releases of any Hazardous
Substance into ambient air, surface water, ground water, publicly owned
treatment works, septic system, or land, or otherwise relating to the handling,
storage, treatment, generation, use, or disposal of Hazardous Substances,
pollution or to the protection of health or the environment, including without
limitation CERCLA, the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901, et seq., and state statutes analogous thereto.
"Environmental Violation" shall mean any activity, occurrence or
condition that violates or threatens (if the threat requires remediation under
any Environmental Law and is not remediated during any grace period allowed
under such Environmental Law) to violate or results in or threatens (if the
threat requires remediation under any Environmental Law and is not remediated
during any grace period allowed under such Environmental Law) to result in
noncompliance with any Environmental Law.
"Equipment" shall mean equipment, apparatus, furnishings, fittings and
personal property of every kind and nature whatsoever purchased, leased or
otherwise acquired using the proceeds of the Loans or the Lessor Advances by the
Lessee or the Lessor and all improvements and modifications thereto and
replacements thereof, whether or not now owned or hereafter acquired or now or
subsequently attached to, contained in or used or usable in any way in
connection with any operation of any Improvements, including but without
limiting the generality of the foregoing, all equipment described in the
Appraisal including without limitation all heating, electrical, and mechanical
equipment, lighting, switchboards, plumbing, ventilation, air conditioning and
air-cooling apparatus, refrigerating, and incinerating equipment, escalators,
elevators, loading and unloading equipment and systems, cleaning systems
(including without limitation window cleaning apparatus), telephones,
communication systems (including without limitation telecommunications switches,
satellite dishes and antennae), televisions, computers, sprinkler systems and
other fire prevention and extinguishing apparatus and materials, security
15
systems, motors, engines, machinery, pipes, pumps, tanks, conduits, appliances,
fittings and fixtures of every kind and description.
"Equipment Schedule" shall mean (a) each Equipment Schedule attached to
the applicable Requisition and (b) each Equipment Schedule attached to the
applicable Lease Supplement.
"Equity Issuance" shall mean any issuance by any Credit Party or any
GCA Subsidiary to any Person which is not a Credit Party of (a) shares of its
Capital Stock, (b) any shares of its Capital Stock pursuant to the exercise of
options or warrants or (c) any shares of its Capital Stock pursuant to the
conversion of any debt securities to equity. The term "Equity Issuance" shall
not include any equity issued in connection with the Acquisition, any Asset
Disposition or any Debt Issuance.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"ERISA Affiliate" shall mean each entity required to be aggregated with
any Credit Party pursuant to the requirements of Section 414(b) or (c) of the
Code.
"Eurodollar Lessor Advance" shall mean a Lessor Advance bearing a
Lessor Yield based on the Eurodollar Rate.
"Eurodollar Loans" shall mean Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate" shall mean for the Interest Period for any applicable
Loan or Lessor Advance (including without limitation conversions, extensions and
renewals), a per annum interest rate (rounded upwards, if necessary, to the
nearest one hundredth (1/100th) of one percent (1%)) determined by the Agent
that is equal to a fraction (a) expressed as a percentage (rounded upwards, if
necessary, to the nearest one hundredth (1/100th) of one percent (1%)) (i) with
the numerator equal to a per annum interest rate determined by the Agent on the
basis of the offered rates for deposits in Dollars for a period of time
corresponding to such Interest Period (and commencing on the first day of such
Interest Period), reported on Telerate page 3750 as of 11:00 a.m. (London time)
two (2) Business Days before the first day of such Interest Period and (ii) the
denominator equal to 100% minus the Eurodollar Reserve Percentage. In the event
no such offered rates appear on Telerate page 3750 or such rate is otherwise not
available, the term "Eurodollar Rate" shall mean for the Interest Period for any
applicable Loan or Lessor Advance (including without limitation conversions,
extensions and renewals), a per annum interest rate equal to a fraction (b)
expressed as a percentage (rounded upwards, if necessary, to the nearest one
hundredth (1/100th) of one percent (1%)) (i) with the numerator equal to a per
annum interest rate determined by the Agent on the basis of the offered rates
for deposits in dollars for a period of time corresponding to such Interest
Period (and commencing on the first day of such Interest Period), which appear
on the Reuters Screen LIBO Page as of 11:00 a.m. (London time) two (2)
16
Business Days before the first day of such Interest Period (provided that if
more than one rate is specified on the Reuters Screen LIBO Page, the rate in
respect of such Interest Period will be the arithmetic mean of such offered
rates (rounded upwards, if necessary, to the nearest one hundredth (1/100th) of
one percent (1%)) and (ii) the denominator equal to 100% minus the Eurodollar
Reserve Percentage. As used herein, "Reuters Screen LIBO Page" means the display
designated as page "LIBO" on the Reuters Monitor Money Rates Service (or such
other page as may replace the LIBO page on that service for the purpose of
displaying London interbank offered rates of major banks) ("RMMRS"). If, for any
reason, neither of such rates is available, then "Eurodollar Rate" shall mean
for the Interest Period for any applicable Loan or Lessor Advance (including
without limitation conversions, extensions and renewals), a per annum interest
rate equal to a fraction (c) expressed as a percentage (rounded upwards, if
necessary, to the nearest one hundredth (1/100th) of one percent (1%)) (i) with
the numerator equal to the average per annum rate of interest determined by the
office of the Agent (each such determination to be conclusive and binding) as of
two (2) Business Days prior to the first day of such Interest Period, as the
effective rate at which deposits in immediately available funds in Dollars are
being, have been, or would be offered or quoted by the Agent to major banks in
the applicable interbank market for Eurodollar deposits at any time during the
Business Day which is the second Business Day immediately preceding the first
day of such Interest Period, for a term comparable to such Interest Period and
in the amount of such Loan or Lessor Advance and (ii) the denominator equal to
100% minus the Eurodollar Reserve Percentage. If no such offers or quotes are
generally available for such amount, then the Agent shall be entitled to
determine the Eurodollar Rate from another recognized service or interbank
quotation, or by estimating in its reasonable judgment the per annum rate (as
described above) that would be applicable if such quote or offers were generally
available.
"Eurodollar Reserve Percentage" shall mean for any day as applied to a
Eurodollar Loan or a Eurodollar Lessor Advance, the aggregate (without
duplication) of the maximum rates (expressed as a decimal) of reserve
requirements in effect on such day (including without limitation basic,
supplemental, marginal and emergency reserves under any regulations of the Board
or other Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed on eurocurrency funding (currently
referred to as "Eurocurrency liabilities" in Regulation D) maintained by a
member bank of the Federal Reserve System.
"Event of Default" shall mean a Lease Event of Default, a Guaranty
Event of Default or a Credit Agreement Event of Default.
"Excepted Payments" shall mean:
(a) all indemnity payments (including without limitation
indemnity payments made pursuant to Section 11 of the Participation
Agreement), whether made by adjustment to Basic Rent or otherwise, to
which any Financing Party or any of its Affiliates, agents, officers,
directors or employees is entitled;
17
(b) any amounts (other than Basic Rent or Termination
Value) payable under any Operative Agreement to reimburse any Financing
Party or any of its Affiliates (including without limitation the
reasonable expenses of any Financing Party incurred in connection with
any such payment) for performing or complying with any of the
obligations of the Lessee under and as permitted by any Operative
Agreement;
(c) any amount payable to the Lessor or any other Primary
Financing Party by a transferee permitted under the Operative
Agreements of the Lessor or such other Primary Financing Party as the
purchase price of the Lessor's interest in the Borrower's Interest
(which amount shall not include any amounts necessary to pay the
principal and interest on the Notes or any other amount payable to the
Agent or the Primary Financing Parties) or such Primary Financing
Party's interest in the transactions contemplated by the Operative
Agreements (or a portion thereof);
(d) any insurance proceeds (or payments with respect to
risks self-insured or policy deductibles) under liability policies
other than such proceeds or payments payable or any Financing Party;
(e) any insurance proceeds under policies maintained by
the Lessor or any other Financing Party pursuant to or in accordance
with the terms of the Operative Agreements;
(f) Transaction Expenses or other amounts, fees,
disbursements or expenses paid or payable to or for the benefit of the
Lessor or any other Financing Party;
(g) any payments in respect of interest to the extent
attributable to payments referred to in clauses (a) through (f) above;
and
(h) any rights of the Financing Parties to demand,
collect, sue for or otherwise receive and enforce payment of any of the
foregoing amounts, provided that such rights shall not include the
right to terminate the Lease.
"Excess Proceeds" shall mean the excess, if any, of the aggregate of
all awards, compensation or insurance proceeds payable in connection with a
Casualty or Condemnation over the Termination Value paid by the Lessee pursuant
to the Lease with respect to such Casualty or Condemnation.
"Exculpated Persons" shall mean the Lessor (except with respect to the
representations and warranties and the other obligations of the Lessor pursuant
to the Operative Agreements expressly undertaken by it in its capacity as a
Primary Financing Party), its successors, assigns, trustees, officers,
directors, shareholders, partners, employees, agents and Affiliates.
"Exempt Payments" shall have the meaning specified in Section 11.2(e)
of the Participation Agreement.
18
"Existing Agent" shall have the meaning specified in the recitals to
the Assignment and Recharacterization Agreement.
"Existing Construction Agent" shall have the meaning specified in the
recitals to the Assignment and Recharacterization Agreement.
"Existing Guarantor" shall have the meaning specified in the recitals
to the Assignment and Recharacterization Agreement.
"Existing Guaranty" shall have the meaning provided for the term
"Guaranty" in Appendix A to the Existing Participation Agreement.
"Existing Holder" shall have the meaning specified in the recitals to
the Assignment and Recharacterization Agreement.
"Existing Holder Certificates" shall have the meaning specified in
Section 2 of the Participation Agreement.
"Existing Lender" shall have the meaning specified in the recitals to
the Assignment and Recharacterization Agreement.
"Existing Lessee" shall have the meaning specified in the recitals to
the Assignment and Recharacterization Agreement.
"Existing Notes" shall have the meaning specified in Section 2 of the
Participation Agreement.
"Existing Operative Agreements" shall mean the "Operative Agreements"
as such term is defined in the Existing Participation Agreement.
"Existing Participation Agreement" shall have the meaning specified in
Section 2 of the Participation Agreement.
"Existing Parties" shall mean collectively the Financing Parties, the
Lessee and the Guarantor, as each term is defined in Appendix A to the Existing
Participation Agreement.
"Existing Security Documents" shall have the meaning provided for the
term "Security Documents" in Appendix A to the Existing Participation Agreement.
"Existing Security Filings" shall mean collectively the "Lender
Financing Statements," the "Lessor Financing Statements" and the "Mortgage
Instruments" as such terms are defined in Appendix A to the Existing
Participation Agreement.
19
"Expiration Date" shall mean the last day of the Term; provided, in no
event shall the Expiration Date be later than the fifth anniversary of the
Initial Closing Date, unless a later date has been expressly agreed to in
writing by each of the Lessor, the Lessee, the Agent, and the other Primary
Financing Parties in accordance with the terms and conditions set forth in
Section 2.2 of the Lease.
"Fair Market Sales Value" shall mean, with respect to any Property, the
amount, which in any event, shall not be less than zero (0), that would be paid
in cash in an arms-length transaction between an informed and willing purchaser
and an informed and willing seller, neither of whom is under any compulsion to
purchase or sell, respectively, such Property. Fair Market Sales Value of any
Property shall be determined based on the assumption that, except for purposes
of Section 17 of the Lease, such Property is in the condition and state of
repair required under Section 10.1 of the Lease and the Lessee is in compliance
with the other requirements of the Operative Agreements.
"Federal Funds Effective Rate" shall have the meaning given to such
term in the definition of ABR.
"Financial Statements" shall mean financial statements of the Parent
prepared on a consolidated and consolidating basis, in accordance with GAAP, and
containing a balance sheet, statement of income and retained earnings and a
statement of cash flows as at the close of the relevant period. Any Financial
Statements provided to the Financing Parties which are required to be audited
hereunder shall be accompanied by (i) any management letter prepared by such
accountants and (ii) a certificate of such accountants that, in the course of
their examination necessary for their certification of the foregoing, they have
obtained no knowledge of any Default or Event of Default or, if, in the opinion
of such accountants, any Default or Event of Default shall exist, stating the
nature and status thereof.
"Financing" shall mean the financing extended pursuant to the Credit
Agreement and the amount of the Lessor Advances.
"Financing Parties" shall mean the Lessor, the Agent and the Lenders
(each, a "Financing Party").
"Fixtures" shall mean all fixtures relating to the Improvements,
including without limitation all components thereof, located in or on the
Improvements, together with all replacements, modifications, alterations and
additions thereto.
"Foreign GCA Subsidiary" shall mean any GCA Subsidiary that is not a
Domestic GCA Subsidiary.
"Foreign Target" shall have the meaning set forth in the definition of
Permitted Acquisition.
20
"Form W-8BEN" shall have the meaning specified in Section 11.2(e) of the
Participation Agreement.
"Form W-8ECI" shall have the meaning specified in Section 11.2(e) of
the Participation Agreement.
"Funded Debt" shall mean, with respect to any Person, without
duplication, (i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (iii) all
obligations of such Person under conditional sale or other title retention
agreements relating to property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered into
in the ordinary course of business), (iv) all obligations of such Person issued
or assumed as the deferred purchase price of property or services purchased by
such Person (other than (A) trade debt incurred in the ordinary course of
business and due within six months of the incurrence thereof and (B) obligations
under earnout agreements in existence as of the Closing Date) which would appear
as liabilities on a balance sheet of such Person, (v) the principal portion of
all obligations of such Person under Capital Leases, (vi) all Guaranty
Obligations of such Person with respect to Funded Debt of another Person, (vii)
the maximum available amount of all letters of credit or acceptances issued or
created for the account of such Person, (viii) all Funded Debt of another Person
secured by a GCA Lien on any property of such Person, whether or not such Funded
Debt has been assumed, provided that for purposes hereof the amount of such
Funded Debt shall be limited to the greater of (A) the amount of such Funded
Debt as to which there is recourse to such Person and (B) the fair market value
of the property which is subject to such GCA Lien, (ix) the outstanding
attributed principal amount under any securitization transaction, (x) the
principal balance outstanding under any Synthetic Lease to which such Person is
a party, and (xi) all preferred Capital Stock issued by such Person and which by
the terms thereof could be (at the request of the holders thereof or otherwise)
subject to mandatory sinking fund payments, redemption or other acceleration
prior to the date that is 6 months after the Maturity Date. The Funded Debt of
any Person shall include the Funded Debt of any partnership or joint venture in
which such Person is a general partner or joint venturer, but only to the extent
to which there is recourse to such Person for the payment of such Funded Debt.
"GAAP" shall mean generally accepted accounting principles,
consistently applied, set forth in the opinions and pronouncements of the
accounting principles board of the American Institute of Certified Public
Accountants, and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession, that are
applicable to the circumstances as of the date of determination, subject,
however, in the case of determination of compliance with the financial covenants
set out in Section 8A.9 to the provisions of Section (n) in the rules of usage
in Appendix A to the Participation Agreement.
"GCA Affiliate" shall mean as to any Person, any other Person
(excluding any GCA Subsidiary) which, directly or indirectly, is in control of,
is controlled by, or is under common control with, such Person. For purposes of
this definition, a Person shall be deemed to be
21
"controlled by" a Person if such Person possesses, directly or indirectly, power
either (a) to vote ten percent (10%) or more of the securities having ordinary
voting power for the election of directors of such Person or (b) to direct or
cause the direction of the management and policies of such Person whether by
contract or otherwise.
"GCA Agent" shall mean the administrative agent under the Guarantor
Credit Agreement.
"GCA Credit Documents" shall mean the Guarantor Credit Agreement, each
of the Notes related thereto, any Joinder Agreement, the Letters of Credit, LOC
Documents, the Security Documents and all other agreements, documents,
certificates and instruments delivered to the Agent or any Lender by any Credit
Party in connection therewith (other than any agreement, document, certificate
or instrument related to a Hedging Agreement), as the capitalized terms used in
this definition (other than Guarantor Credit Agreement) are defined in the
Guarantor Credit Agreement.
"GCA Credit Party" shall mean any of the borrowers or guarantors under
the Guarantor Credit Agreement.
"GCA Credit Party Obligations" shall mean, without duplication, (i) all
of the obligations of the GCA Credit Parties to the GCA Lenders and the
GCA Agent, whenever arising, under the GCA Credit Documents (including,
but not limited to, any interest accruing after the occurrence of a
filing of a petition of bankruptcy under the Bankruptcy Code with
respect to any GCA Credit Party, regardless of whether such interest is
an allowed claim under the Bankruptcy Code) and (b) all liabilities and
obligations, whenever arising, of the Parent or any of the GCA
Subsidiaries to any GCA Lender, or any Affiliate of any GCA Lender,
arising under any Hedging Agreement permitted pursuant to the
applicable sections of the Guarantor Credit Agreement,
"GCA Lender" shall mean the banks and financial institutions which,
from time to time, are party to the Guarantor Credit Agreement as lenders
thereunder.
"GCA Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
Capital Lease having substantially the same economic effect as any of the
foregoing).
"GCA Material Adverse Effect" shall mean a GCA Material Adverse Effect
on (a) the business, operations, property, condition (financial or otherwise) or
prospects of any of the Parent and the GCA Subsidiaries taken as a whole, (b)
the ability of the Parent or any other GCA Credit Party to perform its
obligations, when such obligations are required to be performed, under this
Participation Agreement, any of the Notes, or any other Operative Agreement or
(c) the validity or enforceability of this Participation Agreement, any of the
Notes, the Lessor
22
Advance or any of the other Operative Agreements or the rights or remedies of
the Agent or the Primary Financing Parties hereunder or thereunder.
"GCA Permitted Liens" shall mean:
(i) GCA Liens created by or otherwise existing, under or
in connection with (A) the Participation Agreement or the other
Operative Agreements in favor of the Primary Financing Parties or (B)
the Guarantor Credit Agreement or the other GCA Credit Documents;
(ii) GCA Liens in favor of a GCA Lender in connection with
Hedging Agreements, but only (A) to the extent such GCA Liens secure
obligations under Hedging Agreements with any GCA Lender, or any GCA
Affiliate of any GCA Lender, (B) to the extent such GCA Liens are on
the same collateral as to which the agent under the Guarantor Credit
Agreement, on behalf of the GCA Lenders, also has a GCA Lien and (C) if
such provider and the GCA Lenders shall share pari passu in the
collateral subject to such GCA Liens;
(iii) purchase money GCA Liens securing purchase money
indebtedness (and refinancings thereof) to the extent permitted under
Section 8B.1(c);
(iv) GCA Liens for taxes, assessments, charges or other
governmental levies not yet due or as to which the period of grace (not
to exceed 60 days), if any, related thereto has not expired or which
are being contested in good faith by appropriate proceedings, provided
that adequate reserves with respect thereto are maintained on the books
of the Parent or the GCA Subsidiaries, as the case may be, in
conformity with GAAP (or, in the case of GCA Subsidiaries with
significant operations outside of the United States of America,
generally accepted accounting principles in effect from time to time in
their respective jurisdictions of incorporation);
(v) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like GCA Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(vi) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(vii) deposits to secure the performance of bids, trade
contracts, (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
23
(viii) GCA Liens on the real property and fixtures of the
Parent located at or on Lots 19 and 20, Miracle Hills Park, Douglas
County, Nebraska and all personal property located on or at such real
property that is integral to the operation of such real property and
fixtures.
(ix) any extension, renewal or replacement (or successive
extensions, renewals or replacements) , in whole or in part, of any GCA
Lien referred to in the foregoing clauses; provided that such
extension, renewal or replacement GCA Lien shall be limited to all or a
part of the property which secured the GCA Lien so extended, renewed or
replaced (plus improvements on such property);
(x) GCA Liens existing on the Closing Date and set forth
on Schedule 1 to the Participation Agreement; provided that (a) no such
GCA Lien shall at any time be extended to cover GCA Property or assets
other than the property or assets subject thereto on the Closing Date
and (b) the principal amount of the Indebtedness secured by such GCA
Liens shall not be extended, renewed, refunded or refinanced;
(xi) GCA Liens arising in connection with Capital Leases
to the extent permitted under Section 8B.1(c);
(xii) other GCA Liens in addition to those permitted by the
foregoing clauses securing Indebtedness not exceeding $500,000 on an
individual basis and $5,000,000 in the aggregate; and
(xiii) easements, rights-of-way, restrictions,
encroachments, and other minor defects or irregularities in title to
real property, in each case which do not and will not interfere in any
material respect with the operation of such real property or the
ordinary conduct of the business of the Parent or any of the GCA
Subsidiaries.
"GCA Properties" shall have the meaning set forth in Section 6.3(h).
"GCA Subsidiary" shall mean, as to any Person, a corporation,
partnership, limited liability company or other entity of which shares of stock
or other ownership interests having ordinary voting power (other than stock or
such other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time owned,
or the management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a "GCA Subsidiary" or to "GCA Subsidiaries" in this
Participation Agreement shall refer to a GCA Subsidiary or GCA Subsidiaries of
the Parent, excluding West Interactive Canada, Inc., West International
Corporation, West Telemarketing Insurance Agency, Inc., West Marketing Services
Corporation, Telecommunications Resources, Inc. and two subsidiaries of
Attention, LLC formed or organized for the purpose of purchasing third party
debt obligations.
24
"General Intangibles" shall have the meaning given to such term in
Section 1 of the Security Agreement.
"Governmental Action" shall mean all permits, authorizations,
registrations, consents, approvals, waivers, exceptions, variances, orders,
judgments, written interpretations, decrees, licenses, exemptions, publications,
filings, notices to and declarations of or with, or required by, any
Governmental Authority, or required by any Legal Requirement, and shall include,
without limitation, all environmental and operating permits and licenses that
are required for the full use, occupancy, zoning and operating of any Property.
"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Ground Lease" shall mean a ground lease (in form and substance
reasonably satisfactory to the Agent) respecting any Property (a) owned by any
Credit Party (or a parent corporation or any Subsidiary of any Credit Party) and
leased to the Lessor where such lease has at least a ninety-nine (99) year term
and payments set at no more than $1.00 per year, or (b) where such lease is
subject to such other terms and conditions as are reasonably satisfactory to the
Agent.
"Guaranteed Obligations" shall have the meaning given to such term in
Section 1 of the Guaranty.
"Guarantor" shall mean individually, West Corporation, a Delaware
corporation or any of the entities which are party to the Participation
Agreement either as an original signatory or as a joinder party from time to
time as guarantors.
"Guarantor Credit Agreement" shall mean that certain Credit Agreement
dated as of May 9, 2003 among West Corporation, as the borrower; certain
domestic subsidiaries of West Corporation party thereto from time to time as
guarantors; the lenders party thereto from time to time; Wachovia Bank, National
Association, as the administrative agent; and Wachovia Securities, Inc., as lead
arranger and sole book runner.
"Guarantor Credit Agreement Event of Default" shall mean an Event of
Default as defined in Article VII of the Guarantor Credit Agreement.
"Guaranty" shall mean the Guaranty dated on about the Initial Closing
Date provided by each of the Guarantors in favor of the Financing Parties.
"Guaranty Event of Default" shall mean an "Event of Default", as such
term is used in the Guaranty.
"Guaranty Obligations" shall mean, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable
25
instruments for deposit or collection) guaranteeing or intended to guarantee any
Indebtedness of any other Person in any manner, whether direct or indirect, and
including without limitation any obligation, whether or not contingent, (i) to
purchase any such Indebtedness or any property constituting security therefor,
(ii) to advance or provide funds or other support for the payment or purchase of
any such Indebtedness or to maintain working capital, solvency or other balance
sheet condition of such other Person (including without limitation keep well
agreements, maintenance agreements, comfort letters or similar agreements or
arrangements) for the benefit of any holder of Indebtedness of such other
Person, (iii) to lease or purchase GCA Property, securities or services
primarily for the purpose of assuring the holder of such Indebtedness, or (iv)
to otherwise assure or hold harmless the holder of such Indebtedness against
loss in respect thereof. The amount of any Guaranty Obligation hereunder shall
(subject to any limitations set forth therein) be deemed to be an amount equal
to the outstanding principal amount (or maximum principal amount, if larger) of
the Indebtedness in respect of which such Guaranty Obligation is made.
"Hard Costs" shall mean all costs and expenses payable for supplies,
materials, labor and profit with respect to the Improvements under any
construction contract.
"Hazardous Substance" shall mean any of the following: (a) any
petroleum or petroleum product, explosives, radioactive materials, asbestos,
formaldehyde, polychlorinated biphenyls, lead and radon gas; (b) any substance,
material, product, derivative, compound or mixture, mineral, chemical, waste,
gas, medical waste, or pollutant, in each case whether naturally occurring,
man-made or the by-product of any process, that is toxic, harmful or hazardous
to the environment or human health or safety as determined in accordance with
any Environmental Law; or (c) any substance, material, product, derivative,
compound or mixture, mineral, chemical, waste, gas, medical waste or pollutant
that would support the assertion of any claim under any Environmental Law,
whether or not defined as hazardous as such under any Environmental Law.
"Hedging Agreements" shall mean, with respect to any Person, any
agreement entered into to protect such Person against fluctuations in interest
rates, or currency or raw materials values, including, without limitation, any
interest rate swap, cap or collar agreement or similar arrangement between such
Person and one or more counterparties, any foreign currency exchange agreement,
currency protection agreements, commodity purchase or option agreements or other
interest or exchange rate or commodity price hedging agreements.
"Impositions" shall mean any and all liabilities, expenses, costs and
charges of any kind whatsoever for fees, taxes, levies, imposts, duties,
charges, assessments or withholdings ("Taxes") including but not limited to (i)
real and personal property taxes, including without limitation personal property
taxes on any property covered by the Lease that is classified by Governmental
Authorities as personal property, and real estate or ad valorem taxes in the
nature of property taxes; (ii) sales taxes, use taxes and other similar taxes
(including rent taxes and intangibles taxes); (iii) excise taxes; (iv) real
estate transfer taxes, conveyance taxes, stamp taxes and documentary recording
taxes and fees; (v) taxes that are or are in the nature of franchise, income,
value added, privilege and doing business taxes, license and registration fees;
26
(vi) assessments on any Property, including without limitation all assessments
for public Improvements or benefits, whether or not such improvements are
commenced or completed within the Term; and (vii) taxes, assessments or charges
asserted, imposed or assessed by the PBGC or any governmental authority
succeeding to or performing functions similar to, the PBGC; and in each case all
interest, additions to tax and penalties thereon, which at any time prior to,
during or with respect to the Term or in respect of any period for which the
Lessee shall be obligated to pay Supplemental Rent, may be levied, assessed or
imposed by any Governmental Authority upon or with respect to (a) any Property
or any part thereof or interest therein; (b) the leasing, financing,
refinancing, demolition, construction, substitution, subleasing, assignment,
control, condition, occupancy, servicing, maintenance, repair, ownership,
possession, activity conducted on, delivery, insuring, use, operation,
improvement, sale, transfer of title, return or other disposition of such
Property or any part thereof or interest therein; (c) the Notes, other
indebtedness with respect to any Property, or the Lessor Advances, or any part
thereof or interest therein; (d) the rentals, receipts or earnings arising from
any Property or any part thereof or interest therein; (e) the Operative
Agreements, the performance thereof, or any payment made or accrued pursuant
thereto; (f) the income or other proceeds received with respect to any Property
or any part thereof or interest therein upon the sale or disposition thereof;
(g) any contract relating to the construction, acquisition or delivery of the
Improvements or any part thereof or interest therein; (h) the issuance of the
Notes; (i) the Borrower or the Borrower's Interest; or (j) otherwise in
connection with the transactions contemplated by the Operative Agreements.
"Improvements" shall mean, with respect to any Land, all buildings,
structures, Fixtures, and other improvements of every kind existing at any time
and from time to time on or under the Land purchased or otherwise acquired using
the proceeds of the Advances or which is subject to a Ground Lease, together
with any and all appurtenances to such buildings, structures or improvements,
including without limitation sidewalks, utility pipes, conduits and lines,
parking areas and roadways, and including without limitation all Modifications
and other additions to or changes in the Improvements at any time, including
without limitation (a) any Improvements existing as of the Property Closing Date
as such Improvements may be referenced on the applicable Requisition and (b) any
Improvements made subsequent to such Property Closing Date.
"Indebtedness" shall mean, with respect to any Person, without
duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to GCA Property purchased by such Person (other than
customary reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (d) all obligations of such
Person issued or assumed as the deferred purchase price of GCA Property or
services purchased by such Person (other than trade debt incurred in the
ordinary course of business and due within six months of the incurrence thereof)
which would appear as liabilities on a balance sheet of such Person, (e) all
obligations of such Person under take-or-pay or similar arrangements or under
commodities agreements, (f) all Indebtedness of others secured by (or for which
the holder of
27
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any GCA Lien on, or payable out of the proceeds of production from, GCA
Property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (g) all Guaranty Obligations of such Person
with respect to Indebtedness of another Person, (h) the principal portion of all
obligations of such Person under Capital Leases, (i) all obligations of such
Person under Hedging Agreements, (j) the maximum amount of all letters of credit
issued or bankers' acceptances facilities created for the account of such Person
and, without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (k) all preferred Capital Stock issued by such Person and which
by the terms thereof could be (at the request of the holders thereof or
otherwise) subject to mandatory sinking fund payments, redemption or other
acceleration, (l) the principal balance outstanding under any Synthetic Lease,
and (m) the Indebtedness of any partnership or unincorporated joint venture in
which such Person is a general partner or a joint venturer.
"Indemnified Person" shall mean the Agent, the Primary Financing
Parties and their respective successors, assigns, directors, trustees,
shareholders, partners, officers, employees, agents and Affiliates.
"Indemnity Provider" shall mean the Lessee.
"Initial Closing Date" shall mean May 9, 2003.
"Insolvency" shall mean, with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of such term as used in
Section 4245 of ERISA.
"Insolvent" shall mean being in a condition of Insolvency.
"Instruments" shall have the meaning given to such term in Section 1 of
the Security Agreement.
"Insurance Requirements" shall mean all terms and conditions of any
insurance policy either required by the Lease to be maintained by the Lessee and
all requirements of the issuer of any such policy and, regarding self insurance,
any other requirements of the Lessee.
"Interest Determination Date" shall have the meaning assigned thereto
in the definition of "Applicable Percentage".
"Interest Period" shall mean as to any Loan or Lessor Advance based on
the Eurodollar Rate (i) with respect to the initial Interest Period, the period
beginning on the Initial Closing Date and ending one (1) month, two (2) months,
three (3) months or to the extent available to the Lessor and all Lenders six
(6) months thereafter, as selected in accordance with the applicable provisions
of the Operative Agreements and (ii) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to such Eurodollar
Loan or Eurodollar Lessor Advance and ending one (1) month, two (2) months,
three (3) months or to the extent available to the Lessor and all Lenders six
(6) months thereafter, as selected; provided, however,
28
that all of the foregoing provisions relating to Interest Periods are subject to
the following: (A) if any Interest Period would end on a day which is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day (except that where the next succeeding Business Day falls in the
next succeeding calendar month, then on the next preceding Business Day), (B) no
Interest Period shall extend beyond the Expiration Date, (C) where an Interest
Period begins on a day for which there is no numerically corresponding day in
the calendar month in which the Interest Period is to end, such Interest Period
shall end on the last Business Day of such calendar month and (D) there shall
not be more than four (4) Interest Periods outstanding at any one time.
"Investment Company Act" shall mean the Investment Company Act of 1940,
as amended, together with the rules and regulations promulgated thereunder.
"Investment Property" shall have the meaning given to such term in
Section 1 of the Security Agreement.
"Joinder Agreement" shall mean a Joinder Agreement substantially in the
form of Exhibit G, executed and delivered by an Additional Credit Party in
accordance with the provisions of Section 8A.10 of the Participation Agreement.
"Land" shall mean a parcel of real property described on (a) the
Requisition issued by the Lessee on the Property Closing Date relating to such
parcel and (b) the schedules to each applicable Lease Supplement executed and
delivered in accordance with the requirements of Section 2.4 of the Lease.
"Law" shall mean any statute, law, ordinance, regulation, rule,
directive, order, writ, injunction or decree of any Tribunal.
"Lease" or "Lease Agreement" shall mean the Amended and Restated Lease
Agreement dated on or about the Initial Closing Date, between the Lessor and the
Lessee, together with any Lease Supplements thereto.
"Lease Default" shall mean any event or condition which, with the lapse
of time or the giving of notice, or both, would constitute a Lease Event of
Default.
"Lease Event of Default" shall have the meaning specified in Section
17.1 of the Lease.
"Lease Supplement" shall mean each Amended and Restated Lease
Supplement substantially in the form of Exhibit A to the Lease, together with
all attachments and schedules thereto.
"Legal Requirements" shall mean all foreign, federal, state, county,
municipal and other governmental statutes, laws, rules, orders, regulations,
ordinances, judgments, decrees and injunctions affecting the Lessor, the Lessee,
the Agent, any Lender or any Property, Land,
29
Improvement, Equipment or the taxation, demolition, construction, use or
alteration of such Property, Land, Improvements or Equipment, whether now or
hereafter enacted and in force, including without limitation any that require
repairs, modifications or alterations in or to any Property or in any way limit
the use and enjoyment thereof (including without limitation all building, zoning
and fire codes and the Americans with Disabilities Act of 1990, 42 U.S.C.
Section 12101 et. seq., and any other similar federal, state or local laws or
ordinances and the regulations promulgated thereunder) and any that may relate
to environmental requirements (including without limitation all Environmental
Laws), and all permits, certificates of occupancy, licenses, authorizations and
regulations relating thereto, and all covenants, agreements, restrictions and
encumbrances contained in any instruments which are either of record or known to
the Lessee affecting any Property or the Appurtenant Rights.
"Lender Commitments" shall mean the Lender Commitment of each Lender as
set forth in Schedule 2.1 to the Credit Agreement as such Schedule 2.1 may be
amended and replaced from time to time.
"Lender Financing Statements" shall mean UCC financing statements and
fixture filings appropriately completed and executed for filing in the
applicable jurisdiction in order to procure a security interest in favor of the
Agent in the Collateral subject to the Security Documents.
"Lenders" shall mean Wachovia Capital Investments, Inc., and shall
include the other banks and financial institutions which may be from time to
time party to the Participation Agreement and the Credit Agreement.
"Lessee" shall have the meaning set forth in the Lease.
"Lessor" shall mean Wachovia Development Corporation, a North Carolina
corporation, as the lessor under the Lease.
"Lessor Advance" shall mean any advance made by the Lessor pursuant to
the terms of the Participation Agreement.
"Lessor Basic Rent" shall mean the scheduled Lessor Yield due on the
Lessor Advances on any Scheduled Interest Payment Date pursuant to the
Participation Agreement (but not including interest on overdue amounts under the
Participation Agreement or otherwise).
"Lessor Commitments" shall mean the obligation of the Lessor to make
the Lessor Advance in an amount not to exceed $30,750,000.00.
"Lessor Financing Statements" shall mean UCC financing statements and
fixture filings appropriately completed and executed for filing in the
applicable jurisdictions in order to protect the Lessor's interest under the
Lease to the extent the Lease is a security agreement or a mortgage.
30
"Lessor Lien" shall mean any Lien, true lease or sublease or
disposition of title arising as a result of (a) any claim against the Lessor not
resulting from the transactions contemplated by the Operative Agreements, (b)
any act or omission of the Lessor which is not required by the Operative
Agreements or is in violation of any of the terms of the Operative Agreements,
(c) any claim against the Lessor with respect to Taxes or Transaction Expenses
against which the Lessee is not required to indemnify the Lessor pursuant to
Section 11 of the Participation Agreement or (d) any claim against the Lessor
arising out of any transfer by the Lessor of all or any portion of the interest
of the Lessor in any Property, the Borrower's Interest or the Operative
Agreements other than the transfer of title to or possession of any Property by
the Lessor pursuant to and in accordance with the Lease, the Credit Agreement,
the Security Agreement or the Participation Agreement or pursuant to the
exercise of the remedies set forth in Article XVII of the Lease.
"Lessor Overdue Rate" shall mean the lesser of (a) the then-current
rate of Lessor Yield plus four percent (4%) and (b) the highest rate permitted
by applicable Law.
"Lessor Property Cost" shall mean, with respect to each Property at any
date of determination, an amount equal to (a) the aggregate principal amount of
all Lessor Advances made on or prior to such date with respect to such Property
minus (b) the aggregate amount of prepayments or repayments as the case may be
of the Lessor Advances allocated to reduce the Lessor Property Cost of such
Property pursuant to Section 5B.4(c) of the Participation Agreement.
"Lessor Yield" shall mean with respect to the Lessor Advance from time
to time either the Eurodollar Rate plus the Applicable Percentage or the ABR
plus the Applicable Percentage, as elected by the Lessor (subject to Section 9
of the Participation Agreement); provided, however, (a) in the event the Agent
is unable to determine the Eurodollar Rate as provided in Section 5B.6(c) of the
Participation Agreement, the outstanding Lessor Advance shall bear a yield at
the ABR plus the Applicable Percentage applicable from time to time from and
after the dates and during the periods specified in Section 5B.6(c) of the
Participation Agreement, and (b) upon the delivery by Lessor of the notice
described in Section 11.3(e) of the Participation Agreement, the Lessor Advance
shall bear a yield at the ABR plus the Applicable Percentage applicable from
time to time after the dates and during the periods specified in Section 11.3(e)
of the Participation Agreement.
"Letter-of-Credit Rights" shall have the meaning given to such term in
Section 1 of the Security Agreement.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien, option or charge of any kind.
"Limited Recourse Amount" shall mean with respect to all the Properties
on an aggregate basis, an amount equal to the sum of the Termination Values with
respect to all the Properties on an aggregate basis on each Payment Date, less
the Maximum Residual Guarantee Amount as of such date with respect to all the
Properties on an aggregate basis.
31
"Limited Recourse Event of Default" shall have the meaning given to
such term in Section 17.12 of the Lease.
"Loan Basic Rent" shall mean the scheduled interest due on the Loans on
any Scheduled Interest Payment Date pursuant to the Credit Agreement (but not
including interest on any overdue amounts under Section 2.8(b) of the Credit
Agreement or otherwise).
"Loan Property Cost" shall mean, with respect to each Property at any
date of determination, an amount equal to (a) the aggregate principal amount of
all Loans made on or prior to such date with respect to such Property minus (b)
the aggregate amount of prepayments or repayments as the case may be of the
Loans allocated to reduce the Loan Property Cost of such Property pursuant to
Section 2.6(c) of the Credit Agreement.
"Loans" shall mean the loans extended pursuant to the Credit Agreement.
"Majority Lenders" shall mean at any time, Lenders whose Loans
outstanding represent at least fifty-one percent (51%) of (a) the aggregate
Loans outstanding or (b) to the extent there are no Loans outstanding, the
aggregate of the Lender Commitments.
"Majority Secured Parties" shall mean at any time, Lenders and the
Lessor whose Loans and Lessor Advances outstanding represent at least fifty-one
percent (51%) of (a) the aggregate Advances outstanding or (b) to the extent
there are no Advances outstanding, the sum of the aggregate Lessor Commitments
plus the aggregate Lender Commitments.
"Marketing Period" shall mean, if the Lessee has given a Sale Notice in
accordance with Section 20.1 of the Lease, the period commencing on the date
such Sale Notice is given and ending on the Expiration Date.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the business, operations, property, condition (financial or otherwise), or
prospects of the Parent and the other Credit Parties taken as a whole, (b) the
ability of the Parent or any Credit Party to perform its obligations, when such
obligations are required to be performed, under the Participation Agreement, the
Notes or any other Operative Agreement, (c) the validity or enforceability of
the Participation Agreement, the Notes or any other Operative Agreement or the
rights or remedies of the Agent, the Lenders or the Lessor thereunder, (d) the
validity, priority or enforceability of any Lien on any Property created by any
of the Operative Agreements, or (e) the value, utility or useful life of any
Property or the use, or ability of the Lessee to use, any Property for the
purpose for which it was intended.
"Material Agreements" shall mean contracts, notes, securities,
instruments and other agreements to which any Credit Party or any of their
Subsidiaries is a party or by which it is bound which, if violated or breached,
could have a Material Adverse Effect.
32
"Material Law" shall mean any law whose violation by any Credit Party
or any of their respective Subsidiaries could result in a Material Adverse
Effect.
"Material License" shall mean (i) all licenses, franchises, permits and
consents from Governmental Authorities and other Persons and all registrations
and filings with Governmental Authorities and other Persons which if not
obtained, held or made by the Credit Parties and their respective Subsidiaries
could have a Material Adverse Effect and (ii) all licenses, franchises, permits
and consents from Governmental Authorities or other Persons and all
registrations and filings with Governmental Authorities and other Persons that
are required in connection with the execution, delivery or performance by the
Credit Parties and their respective Subsidiaries, or the validity or
enforceability against the Credit Parties, of this Agreement and the other
Operative Agreements to which any Credit Party is a party.
"Material Proceedings" shall mean any litigation, investigation or
other proceeding by or before any Governmental Authority (i) which involves any
of the Operative Agreements or any of the transactions contemplated thereby, or
involves any Credit Party or any of their respective Subsidiaries as a party or
the property of any Credit Party or any of their respective Subsidiaries, and
could reasonably be expected to have a Material Adverse Effect if adversely
determined, (ii) in which there has been issued an injunction, writ, temporary
restraining order or any other order of any nature which purports to restrain or
enjoin the making of any requested Advance, the consummation of any other
transaction contemplated by the Operative Agreements, or the enforceability of
any provision of any of the Operative Agreements, (iii) which involves the
actual or alleged breach or violation by any Credit Party or any of their
respective Subsidiaries of, or default by any Credit Party or any of their
respective Subsidiaries under, any Material Agreement or (iv) which involves the
actual or alleged violation by any Credit Party or any of their respective
Subsidiaries of any Material Law.
"Materials of Environmental Concern" shall mean any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date" shall mean the Expiration Date.
"Maximum Residual Guarantee Amount" shall mean an amount equal to the
product of the aggregate Property Cost for all of the Properties times
eighty-eight percent (88%).
"Modifications" shall have the meaning specified in Section 11.1(a) of
the Lease.
"Moody's" shall mean Moody's Investors Service, Inc.
"Mortgage Instrument" shall mean any mortgage, deed of trust or any
other instrument executed by the Lessor and the Lessee (or regarding any
Property subject to a Ground Lease, the applicable Affiliate of the Lessee) in
favor of the Agent (for the benefit of the Secured Parties)
33
and evidencing a Lien on the Property, in form and substance reasonably
acceptable to the Agent.
"Mortgage Obligations" shall mean any obligations owing to the Lessor
pursuant to the Operative Agreements.
"Multiemployer Plan" shall mean any plan described in Section
4001(a)(3) of ERISA to which contributions are or have been made or required by
any Credit Party or any of its Subsidiaries or ERISA Affiliates.
"Multiple Employer Plan" shall mean a plan to which any Credit Party or
any ERISA Affiliate and at least one (1) other employer other than an ERISA
Affiliate is making or accruing an obligation to make, or has made or accrued an
obligation to make, contributions.
"Net Cash Proceeds" shall mean the aggregate cash proceeds received by
any GCA Credit Party or any GCA Subsidiary in respect of any Asset Disposition,
Equity Issuance or Debt Issuance, net of (a) direct costs (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions) and (b) taxes paid or payable as a result thereof; it being
understood that "Net Cash Proceeds" shall include, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration
received by any GCA Credit Party or any GCA Subsidiary in any Asset Disposition,
Equity Issuance or Debt Issuance.
"New Facility" shall have the meaning given to such term in Section 3A
of the Guaranty.
"Non-Integral Equipment" shall mean Equipment which (a) is personal
property that is readily removable without causing material damage to the
applicable Property and (b) is not integral or necessary, respecting the
applicable Property, for compliance with Section 8.3 of the Lease or otherwise
to the structure thereof, the mechanical operation thereof, the electrical
systems thereof or otherwise with respect to any aspect of the physical plant
thereof.
"Notes" shall mean those notes issued to the Lenders pursuant to the
Credit Agreement.
"Obligations" shall have the meaning given to such term in Section 1 of
the Security Agreement.
"Officer's Certificate" with respect to any person shall mean a
certificate executed on behalf of such person by a Responsible Officer who has
made or caused to be made such examination or investigation as is necessary to
enable such Responsible Officer to express an informed opinion with respect to
the subject matter of such Officer's Certificate.
"Operative Agreements" shall mean the following: the Participation
Agreement, the Guaranty, the Credit Agreement, the Notes, the Lease, the Lease
Supplements (and memoranda of the Lease and each Lease Supplement in a form
reasonably acceptable to the Agent), the Security Agreement, the Mortgage
Instruments, the other Security Documents, the Ground
34
Leases, the Deeds and the Bills of Sale, the Assignment and Recharacterization
Agreement and any and all other agreements, documents and instruments executed
in connection with any of the foregoing.
"Original Executed Counterpart" shall have the meaning given to such
term in Section 5 of Exhibit A to the Lease.
"Overdue Interest" shall mean any interest payable pursuant to Section
2.8(b) of the Credit Agreement.
"Overdue Rate" shall mean (a) with respect to the Loan Basic Rent, and
any other amount owed under or with respect to the Credit Agreement or the
Security Documents, the rate specified in Section 2.8(b) of the Credit
Agreement, (b) with respect to the Lessor Basic Rent, the Lessor Yield and any
other amount owing to the Lessor pursuant to the Operative Agreements, the
Lessor Overdue Rate, and (c) with respect to any other amount, the amount
referred to in clause (y) of Section 2.8(b) of the Credit Agreement.
"Owner Trustee" shall mean Wells Fargo Bank Northwest, National
Association (as successor to First Security Bank, National Association), not
individually, except as expressly stated in the Existing Operative Agreements,
but solely in its capacity as the owner trustee of the Trust, and any successor,
replacement or additional Owner Trustee expressly permitted under the Existing
Operative Agreement or this Agreement.
"Parent" shall mean West Corporation, a Delaware corporation.
"Participant" shall have the meaning given to such term in Section 9.7
of the Credit Agreement.
"Participation Agreement" shall mean the Participation Agreement dated
on or about the Initial Closing Date, among the Lessee, the Lessor, the Lenders
and the Agent.
"Payment Date" shall mean any Scheduled Interest Payment Date and any
date on which interest or Lessor Yield in connection with a prepayment of
principal on the Loans or of the Lessor Advances is due under the Credit
Agreement or the Participation Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation created by
Section 4002(a) of ERISA or any successor thereto.
"Pension Plan" shall mean a "pension plan", as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
Multiemployer Plan), and to which any Credit Party or any ERISA Affiliate may
have any liability, including without limitation any liability by reason of
having been a substantial employer within the meaning of Section 4063 of ERISA
at any time during the preceding five (5) years, or by reason of being deemed to
be a contributing sponsor under Section 4069 of ERISA.
35
"Permitted Acquisition" shall mean an acquisition or any series of
related acquisitions by a GCA Credit Party of the assets or all of the Capital
Stock of a Person or any division, line of business or other business unit of a
Person (such Person or such division, line of business or other business unit of
such Person referred to herein as the "Target"), in each case that is in the
same line of business (or assets used in the same line of business) as the GCA
Credit Parties and their GCA Subsidiaries or whereby a substantial portion of
the acquired business relies upon automated transactions, telephone
representatives or telephony technology, so long as (a) no Default or Event of
Default shall then exist or would exist after giving effect thereto; (b) the GCA
Credit Parties shall demonstrate to the reasonable satisfaction of the Agent
that the GCA Credit Parties will be in compliance on a pro forma basis with all
of the terms and provisions of the financial covenants set forth in Section
8A.9; (c) the agent under the Guarantor Credit Agreement, on behalf of the GCA
Lenders, shall have received (or shall receive in connection with the closing of
such acquisition) a first priority perfected security interest in all of the
Capital Stock acquired with respect to the Target and the Target, if a Person,
shall have executed a Joinder Agreement in accordance with the terms of the
applicable section of the Guarantor Credit Agreement; (d) such acquisition is
not a "hostile" public company acquisition and has been approved by the Board of
Directors and/or shareholders of the applicable GCA Credit Party and the public
company Target; (e) after giving effect to such acquisition, the sum of (1) the
unused availability under the Aggregate Revolving Committed Amount plus (2) the
Cash and Cash Equivalents held by the GCA Credit Parties is greater than or
equal to $25,000,000; and (f) with respect to any acquisition where the total
consideration shall be greater than $20,000,000, the Parent shall have delivered
to the Agent and each of the Primary Financing Parties not less than twenty (20)
Business Days prior to the consummation of such acquisition (i) a reasonably
detailed description of the material terms of such acquisition (including,
without limitation, the purchase price and method and structure of payment) and
of each Target, (ii) audited financial statements of the Target for its two (2)
most recent fiscal years prepared by independent certified public accountants
acceptable to the Agent and unaudited fiscal year-to-date statements for the
most recent interim periods, (iii) consolidated projected income statements of
the Parent and its consolidated subsidiaries (giving effect to such Permitted
Acquisition and the consolidation with the Parent of each relevant Target) for
the three (3) year period following the consummation of such Permitted
Acquisition, in reasonable detail, together with any appropriate statement of
assumptions, and (iv) a certificate, in form and substance reasonably
satisfactory to the Agent, executed by a Responsible Officer of the Parent (A)
certifying that such Permitted Acquisition complies with the requirements of
this Participation Agreement and (B) demonstrating compliance with subsections
(b), and (e) of this definition; provided, however, that an acquisition of a
Target that is not incorporated, formed or organized in the United States (a
"Foreign Target") shall only qualify as a Permitted Acquisition if each of the
other requirements set forth in this definition shall have been satisfied and
the total consideration for all such Foreign Targets does not exceed $50,000,000
in the aggregate during the term of this Participation Agreement.
"Permitted Facility" shall mean the leasehold estate known as Lot 1, in
the Miracle Hills Subdivision in Douglas County, Nebraska and the fee simple
estate known as Building 7000, at 10931 Laureate Drive in Bexar County, Texas.
36
"Permitted Investments" shall mean:
(i) cash and Cash Equivalents;
(ii) receivables owing to the Parent or any of the GCA
Subsidiaries or any receivables and advances to suppliers, in each case
if created, acquired or made in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms;
(iii) investments in and loans to any GCA Credit Parties;
(iv) investments in and loans to domestic subsidiaries of the
Parent that are not guarantors under the Guarantor Credit Agreement
solely for the purpose of purchasing third party debt obligations;
provided, that, the aggregate amount of investments and loans made
pursuant to this clause (iv), together with the aggregate amount of
Indebtedness incurred pursuant to Section 8B.1(d)(iii) shall not exceed
$25,000,000 at any time outstanding;
(v) investments in and loans to subsidiaries of the Parent
that are not guarantors under the Guarantor Credit Agreement (other
than investments and loans pursuant to clause (iv) above); provided,
that the aggregate amount of such investments and loans, together with
the aggregate amount of Indebtedness incurred pursuant to Section
8B.1(d)(iv) shall not exceed $5,000,000 at any time outstanding;
(vi) investments (including debt obligations) received in
connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course
of business;
(vii) investments, acquisitions or transactions permitted
under Section 8B.4(b);
(viii) the Parent may enter into Hedging Agreements to the
extent permitted pursuant to Section 8B.1; and
(ix) Permitted Acquisitions.
As used herein, "investment" shall mean all investments, in cash or by
delivery of property made, directly or indirectly in, to or from any Person,
whether by acquisition of shares of Capital Stock, property, assets,
indebtedness or other obligations or securities or by loan advance, capital
contribution or otherwise.
37
"Permitted Liens" shall mean:
(a) as of the Property Closing Date for a Property, Liens
that are expressly set forth as title exceptions on the title
commitment issued under Section 5.3(g) of the Participation Agreement
with request to the applicable Property and
(b) after the Property Closing Date for a Property,
(i) Liens that are expressly set forth as title
exceptions on the title commitment issued under Section 5.3(g)
of the Participation Agreement with request to the applicable
Property;
(ii) the respective rights and interests of the
parties to the Operative Agreements as provided in the
Operative Agreements;
(iii) the rights of any sublessee or assignee
under a sublease or an assignment expressly permitted by the
terms of the Lease for no longer than the duration of the
Lease;
(iv) Liens for Taxes that either are not yet due
or are being contested in accordance with the provisions of
Section 13.1 of the Lease;
(v) Liens arising by operation of law,
materialmen's, mechanics', workmen's, repairmen's, employees',
carriers', warehousemen's and other like Liens relating to the
construction of the Improvements or in connection with any
Modifications or arising in the ordinary course of business
for amounts that either are not more than thirty (30) days
past due or are being diligently contested in good faith by
appropriate proceedings, so long as such proceedings satisfy
the conditions for the continuation of proceedings to contest
Taxes set forth in Section 13.1 of the Lease;
(vi) Liens of any of the types referred to in
clause (d) above that have been bonded for not less than the
full amount in dispute (or as to which other security
arrangements satisfactory to the Lessor and the Agent have
been made), which bonding (or arrangements) shall comply with
applicable Legal Requirements, and shall have effectively
stayed any execution or enforcement of such Liens;
(vii) Liens arising out of judgments or awards
with respect to which appeals or other proceedings for review
are being prosecuted in good faith and for the payment of
which adequate reserves have been provided as required by GAAP
or other appropriate provisions have been made, so long as
such proceedings have the effect of staying the execution of
such judgments or awards and satisfy the
38
conditions for the continuation of proceedings to contest Taxes set
forth in Section 13.1 of the Lease;
(viii) Liens in favor of municipalities to the extent agreed
to by the Lessor; and
(ix) Lessor Liens.
"Person" shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, governmental authority or any other entity.
"Plan" shall mean, at any particular time, any employee benefit plan
which is covered by Title IV of ERISA and in respect of which the Parent or a
Commonly Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pledge Agreement" shall mean the Pledge Agreement dated as of the
Closing Date to be executed in favor of the agent under the Guarantor Credit
Agreement by the Parent and each of the other GCA Credit Parties, as amended,
modified, restated or supplemented from time to time.
"Primary Financing Parties" shall mean the Lessor, the Lenders and any
other banks, financial institutions or other institutional investors which may
be from time to time Lenders.
"Prime Lending Rate" shall have the meaning given to such term in the
definition of ABR.
"Proceeds" shall have the meaning given to such term in Section 1 of
the Security Agreement.
"Property" shall mean, with respect to each Permitted Facility that is
acquired pursuant to the terms of the Operative Agreements, the Land and each
item of Equipment and the various Improvements, in each case located on such
Land, including without limitation each Property subject to a Ground Lease and
each Property for which the Term has commenced.
"Property Acquisition Cost" shall mean the cost to the Lessor to
purchase a Property or to acquire, through an assignment of the Existing Notes
and the Existing Holder Certificates, title to or a ground lease interest in a
Property, in either case, on a Property Closing Date.
"Property Closing Date" shall mean the Initial Closing Date.
"Property Cost" shall mean, with respect to any Property at any date of
determination, an amount equal to the aggregate sum of the Lessor Property Costs
plus the Loan Property Cost for such Property.
39
"Purchase Option" shall have the meaning given to such term in Section
20.1 of the Lease.
"Purchasing Lender" shall have the meaning given to such term in
Section 9.8(a) of the Credit Agreement.
"Rating Agencies" shall mean Moody's, S&P and Fitch Investors Service,
L.P. or, in each case, any successor nationally recognized statistical rating
organization.
"Recovery Event" shall mean the receipt by the Parent or any of the GCA
Subsidiaries of any cash insurance proceeds or condemnation award payable by
reason of theft, loss, physical destruction or damage, taking or similar event
with respect to any of their respective GCA Property or assets.
"Register" shall have the meaning given to such term in Section 9.9(a)
of the Credit Agreement.
"Regulation D" shall mean Regulation D of the Board, as the same may be
modified and supplemented and in effect from time to time.
"Regulation T" shall mean Regulation T of the Board, as the same may be
modified and supplemented and in effect from time to time.
"Regulation U" shall mean Regulation U of the Board, as the same may be
modified and supplemented and in effect from time to time.
"Regulation X" shall mean Regulation X of the Board, as the same may be
modified and supplemented and in effect from time to time.
"Release" shall mean any release, pumping, pouring, emptying,
injecting, escaping, leaching, dumping, seepage, spill, leak, flow, discharge,
disposal or emission of a Hazardous Substance.
"Reorganization" shall mean, with respect to any Multiemployer Plan,
the condition that such Plan is in reorganization within the meaning of such
term as used in Section 4241 of ERISA.
"Renewal Term" shall mean each renewal term of the Lease effectuated in
accordance with Section 2.2 of the Lease.
"Rent" shall mean, collectively, the Basic Rent and the Supplemental
Rent, in each case payable under the Lease.
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"Reportable Event" shall mean any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty-day notice
period is waived under PBGC Reg. Section 4043.
"Requested Funds" shall mean any funds requested by the Lessee in
accordance with Section 5 of the Participation Agreement.
"Requirement of Law" shall mean, as to any Person, the Certificate of
Incorporation and By-laws or other organizational or governing documents of such
Person, and each law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Requisition" shall have the meaning specified in Section 4.2 of the
Participation Agreement.
"Responsible Officer" shall mean the Chairman or Vice Chairman of the
Board of Directors, the Chief Executive Officer, the President, any Senior Vice
President or Executive Vice President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer, or any Assistant Treasurer.
"Restricted Payment" shall mean (a) any dividend or other distribution,
direct or indirect, on account of any shares of any class of Capital Stock of
the Parent or any of its subsidiaries, now or hereafter outstanding, (b) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of Capital
Stock of the Parent or any of its subsidiaries, now or hereafter outstanding,
(c) any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of Capital
Stock of the Parent or any of its subsidiaries, now or hereafter outstanding, or
(d) any payment or prepayment of principal of, premium, if any, or interest on,
redemption, purchase, retirement, defeasance, sinking fund or similar payment
with respect to, any Subordinated Debt.
"Reuters Screen LIBO Page" shall have the meaning given to such term in
the definition of Eurodollar Rate.
"RMMRS" shall have the meaning given to such term in the definition of
Eurodollar Rate.
"S&P" shall mean Standard and Poor's Rating Group, a division of The
McGraw-Hill Companies, Inc.
"Sale Date" shall have the meaning given to such term in Section
20.3(a) of the Lease.
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"Sale Notice" shall mean a notice given to the Lessor in connection
with the election by the Lessee of its Sale Option.
"Sale Option" shall have the meaning given to such term in Section 20.1
of the Lease.
"Sale Proceeds Shortfall" shall mean the amount by which the proceeds
of a sale described in Section 22.1 of the Lease are less than the Limited
Recourse Amount with respect to the Properties if it has been determined that
the Fair Market Sales Value of the Properties at the expiration of the term of
the Lease has been impaired by greater than ordinary wear and tear during the
Term of the Lease.
"Scheduled Funded Debt Payments" shall mean, as of any date of
determination for the Parent and the GCA Subsidiaries, the sum of all scheduled
payments of principal on Funded Debt for the applied period ending on the date
of determination (including the principal component of payments due on Capital
Leases during the applicable period ending on the date of determination).
"Scheduled Interest Payment Date" shall mean (a) as to any Eurodollar
Loan or Eurodollar Lessor Advance, the last day of the Interest Period
applicable to such Eurodollar Loan or Eurodollar Lessor Advance, (b) as to any
ABR Loan or any ABR Lessor Advance, the fifteenth day of each month, unless such
day is not a Business Day and in such case on the next occurring Business Day
and (c) as to all Loans and Lessor Advances, the date of any voluntary or
involuntary payment, prepayment, return or redemption, and the Maturity Date or
the Expiration Date, as the case may be.
"Secured Parties" shall have the meaning given to such term in the
Security Agreement.
"Secured Party Financing Statements" shall mean UCC financing
statements and fixture filings appropriately completed and executed for filing
in the applicable jurisdiction in order to procure a security interest in favor
of the Agent in the Collateral subject to the Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.
"Security Agreement" shall mean the Security Agreement dated on or
about the Initial Closing Date between the Borrower and the Agent, for the
benefit of the Secured Parties, and accepted and agreed to by the Lessee.
"Security Documents" shall mean the collective reference to the
Security Agreement, the Mortgage Instruments, (to the extent the Lease is
construed as a security instrument) the Lease, the UCC Financing Statements and
all other security documents hereafter delivered to the Agent granting a Lien on
any asset or assets of any Person to secure the obligations and liabilities of
the Lessor under the Credit Agreement and/or under any of the other Credit
Documents or to secure any guarantee of any such obligations and liabilities.
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"Single Employer Plan" shall mean any Plan which is not a Multiemployer
Plan.
"Soft Costs" shall mean all costs which are ordinarily and reasonably
incurred in relation to the acquisition of the Properties other than Hard Costs,
including without limitation structuring fees, administrative fees, upfront
fees, legal fees, upfront fees, fees and expenses related to appraisals, title
examinations, title insurance, document recordation, surveys, environmental site
assessments, geotechnical soil investigations and similar costs and professional
fees customarily associated with a real estate closing, fees and expenses of the
Lessor payable or reimbursable under the Operative Agreements and costs and
expenses incurred pursuant to Sections 7.3(a) and 7.3(b) of the Participation
Agreement.
"Specified Sales" shall mean (a) the sale, transfer, lease or other
disposition of inventory and materials in the ordinary course of business and
(b) the sale, transfer or other disposition of Permitted Investments described
in clause (i) of the definition thereof.
"Subordinated Debt" shall mean any Indebtedness incurred by any Credit
Party which by its terms is specifically subordinated in right of payment to the
prior payment of the Credit Party obligations under the Operative Agreements,
including without limitation, the Guaranteed Obligations, on terms satisfactory
to the Majority Secured Parties.
"subsidiary" shall mean, as to any Credit Party, any corporation,
partnership, limited liability company or other entity which under the rules of
GAAP consistently applied should have its financial results consolidated with
those of such Credit Party for purposes of financial accounting statements.
"Subsidiary" shall mean, as to any Person, any corporation of which at
least a majority of the outstanding stock having by the terms thereof ordinary
voting power to elect a majority of the board of directors of such corporation
(irrespective of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person, or by one (1)
or more Subsidiaries, or by such Person and one (1) or more Subsidiaries.
"Supplemental Amounts" shall have the meaning given to such term in
Section 9.18 of the Credit Agreement.
"Supplemental Rent" shall mean all amounts, liabilities and obligations
(other than Basic Rent) which the Lessee assumes or agrees to pay to the Lessor,
the Agent, the Lenders or any other Person under the Lease or under any of the
other Operative Agreements including without limitation payments of the
Termination Value and the Maximum Residual Guarantee Amount and all
indemnification amounts, liabilities and obligations.
"Synthetic Lease" shall mean any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet financing
product where such product is
43
considered borrowed money indebtedness for tax purposes but is classified as an
operating lease in accordance with GAAP.
"Target" shall have the meaning set forth in the definition of
"Permitted Acquisitions."
"Taxes" shall have the meaning specified in the definition of
"Impositions."
"Term" shall have the meaning specified in Section 2.2 of the Lease.
"Termination Date" shall have the meaning specified in Section 16.2(a)
of the Lease.
"Termination Event" shall mean (a) with respect to any Pension Plan,
the occurrence of a Reportable Event or an event described in Section 4062(e) of
ERISA, (b) the withdrawal of any Credit Party or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a substantial employer
(as such term is defined in Section 4001(a)(2) of ERISA), or the termination of
a Multiple Employer Plan, (c) the distribution of a notice of intent to
terminate a Plan or Multiemployer Plan pursuant to Section 4041(a)(2) or 4041A
of ERISA, (d) the institution of proceedings to terminate a Plan or
Multiemployer Plan by the PBGC under Section 4042 of ERISA, (e) any other event
or condition which might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan or
Multiemployer Plan, or (f) the complete or partial withdrawal of any Credit
Party or any ERISA Affiliate from a Multiemployer Plan.
"Termination Notice" shall have the meaning specified in Section 16.1
of the Lease.
"Termination Value" shall mean the sum of (a) either (i) with respect
to all Properties, an amount equal to the aggregate outstanding Property Cost
for all the Properties, or (ii) with respect to a particular Property, an amount
equal to the Property Cost allocable to such Property, plus (b) respecting the
amounts described in each of the foregoing subclause (i) or (ii), as applicable,
any and all accrued but unpaid interest on the Loans and any and all Lessor
Yield on the Lessor Advances related to the applicable Property Cost, plus (c)
to the extent the same is not duplicative of the amounts payable under clause
(b) above, all other Rent and other amounts then due and payable or accrued
under the Operative Agreements (including without limitation amounts under
Sections 11.1 and 11.2 of the Participation Agreement and all costs and expenses
referred to in Sections 22.1(a) and 22.3 of the Lease).
"Transaction Expenses" shall mean all Soft Costs and all other fees,
costs, disbursements and expenses incurred in connection with the preparation,
execution and delivery of the Operative Agreements and the transactions
contemplated by the Operative Agreements including without limitation all costs
and expenses described in Section 7 of the Participation Agreement and the
following:
(a) the reasonable fees, out-of-pocket expenses and
disbursements of counsel in negotiating the terms of the Operative
Agreements and the other transaction
44
documents, preparing for the closings under, and rendering opinions in
connection with, such transactions and in rendering other services
customary for counsel representing parties to transactions of the types
involved in the transactions contemplated by the Operative Agreements;
(b) the reasonable fees, out-of-pocket expenses and
disbursements of accountants for the Lessee in connection with the
transaction contemplated by the Operative Agreements;
(c) any and all other reasonable fees, charges or other
amounts payable to the Lenders, the Agent, the Lessor or any broker
which arises under any of the Operative Agreements;
(d) any other reasonable fee, out-of-pocket expenses,
disbursement or cost of any party to the Operative Agreements or any of
the other transaction documents; and
(e) any and all Taxes and fees incurred in recording or filing
any Operative Agreement or any other transaction document, any deed,
declaration, mortgage, security agreement, notice or financing
statement with any public office, registry or governmental agency in
connection with the transactions contemplated by the Operative
Agreements.
"Tribunal" shall mean any state, commonwealth, federal, foreign,
territorial, or other court or government body, subdivision agency, department,
commission, board, bureau or instrumentality of a governmental body.
"Trust" shall mean the Green Real Estate Trust 2001-1, which was part
of the financing provided by the Existing Operative Agreements.
"Trust Company" shall mean Wells Fargo Bank Northwest, National
Association (as successor to First Security Bank, National Association), in its
individual capacity.
"Type" shall mean, as to any Loan, whether it is an ABR Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code in effect in the State of
New York, as the same may be amended from time to time.
"UCC Financing Statements" shall mean collectively the Lender Financing
Statements and the Lessor Financing Statements.
"Unanimous Vote Matters" shall have the meaning given it in Section
12.4 of the Participation Agreement.
"Unfunded Liability" shall mean, with respect to any Plan, at any time,
the amount (if any) by which (a) the present value of all benefits under such
Plan exceeds (b) the fair market
45
value of all Plan assets allocable to such benefits, all determined as of the
then most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of the Company or any member of the
Controlled Group to the PBGC or such Plan under Title IV of ERISA.
"Uniform Commercial Code" and "UCC" shall mean the Uniform Commercial
Code as in effect in any applicable jurisdiction.
"United States Bankruptcy Code" shall mean Title 11 of the United
States Code.
"U.S. Person" shall have the meaning specified in Section 11.2(e) of
the Participation Agreement.
"U.S. Taxes" shall have the meaning specified in Section 11.2(e) of the
Participation Agreement.
"Voting Stock" shall mean, with respect to any Person, Capital Stock
issued by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
"Wachovia" shall mean Wachovia Bank, National Association.
"West Family Group" shall mean Gary L. West and Mary E. West and any
charitable foundation or trust created by Gary L. West or Mary E. West to the
extent the board of trustees of any such charitable foundation or trust is
controlled by Thomas B. Barker and Roland J. Santoni (or any replacement of
Thomas B. Barker or Roland J. Santoni on the board of trustees that is a
Responsible Officer of the Parent and/or a person designated by Gary L. West and
Mary E. West).
"Wholly-Owned Entity" shall mean a Person all of the shares of capital
stock or other ownership interest of which are owned by a referent Person and/or
one of such referent Person's wholly-owned Subsidiaries or other wholly-owned
entities.
"Withholdings" shall have the meaning specified in Section 11.2(e) of
the Participation Agreement.
46