CREDIT AGREEMENT
DATED AS OF FEBRUARY 27,
2004
COLE WW II, LLC, COLE WW IV,
LLC,
CONWA PROPERTY II LLC, CONWA
PROPERTY IV LLC,
SWA REMAINDER II LLC, SWA REMAINDER
IV LLC
and
SOUTHTRUST BANK
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is dated as of
February 27, 2004, among COLE WW II, LLC, an Arizona limited
liability company (“Cole WW II”), COLE WW IV, LLC, an
Arizona limited liability company (“Cole WW IV”), CONWA
PROPERTY II LLC, a Delaware limited liability company (“Conwa
Property II”), CONWA PROPERTY IV LLC, a Delaware limited
liability company (“Conwa Property IV”), SWA REMAINDER
II LLC, a Delaware limited liability company (“SWA Remainder
II”), SWA REMAINDER IV LLC, a Delaware limited liability
company (“SWA Remainder IV”) (Cole WW II and Cole WW IV
hereinafter referred to as the “Borrowers”, and Conwa
Property II, Conwa Property IV, SWA Remainder II and SWA Remainder
IV hereinafter referred to as the “Mortgagors”), and
SOUTHTRUST BANK, an Alabama banking corporation (the
“Bank”). As used in this Agreement, capitalized words
and phrases shall have the meanings ascribed thereto in Article I
of this Agreement.
W I T N E S S E T H:
WHEREAS, Borrowers have applied to
Bank for loans to be used for the purpose hereinafter described,
and Bank has agreed to make such loans on the terms and conditions
hereinafter provided.
NOW, THEREFORE, in consideration of
the promises herein contained, and each intending to be legally
bound hereby, the parties hereto agree as follows:
ARTICLE I
1.1 Defined
Terms. As used herein, the following terms shall have the meanings
set forth below (such meanings to be equally applicable to the
singular and plural forms thereof):
“Advance” means each
loan of money or credit made or extended to or for the benefit of
Borrower by Bank pursuant to Article 2 or Article 3 of this
Agreement.
“Affiliate” means, as to
any Person, each other Person that directly or indirectly through
one or more intermediaries, controls, or is controlled by, or under
common control with, such Person.
“Aggregate Loan Amount”
means Fourteen Million Nine Hundred Twenty-Three Thousand
Thirty-Five and No/100 Dollars ($14,923,035.00).
“Agreement” means this
Credit Agreement, as amended or supplemented from time to
time.
“Applicable Margin”
means two and two tenths percent (2.2%).
“Approved REIT” means
Cole Credit Property Trust, Inc., Cole Credit Property Trust II,
Inc., any other REIT with Cole REIT Advisors, LLC as its advisor,
or any other REIT approved by Bank.
“Approved Transfers of the
Equity Interests” means a transfer of the Equity Interests if
all of the following conditions are met: (i) there is not existing
a Default, (ii) the transfer is to an Approved REIT; and (iii)
Borrower shall pay all fees and costs of Bank incurred in
connection with such transfer, if any, including Attorneys'
Fees.
“Assignments of Rents”
means (i) that certain Assignment of Rents and Leases of even date
herewith given by Mortgagors in favor of Bank with respect to the
Mortgaged Property located in the State of Delaware; (ii) that
certain Assignment of Rents and Leases of even date herewith given
by Mortgagors in favor of Bank with respect to the Mortgaged
Property located in the State of New Jersey; and (iii) that certain
Assignment of Rents and Leases of even date herewith given by
Mortgagors in favor of Bank with respect to the Mortgaged Property
located in the State of Pennsylvania; and includes any and all
extensions, revisions, modifications or amendments at any time made
to any of the foregoing.
“Assigned Documents”
means (i) the Assigned Leases; (ii) the Cole WW II Purchase
Agreement; (iii) the Cole WW IV Purchase Agreement; (iv) any and
all other agreements entered into by or for the benefit of Borrower
Party with any Person with respect to the acquisition (including,
without limitation, all documents delivered to or for the benefit
of Borrower Party in connection with the closing of the Purchase
under and as defined in the Cole WW II Purchase Agreement and the
Cole WW IV Purchase Agreement), use, management, leasing, sale or
operation of any part of the Mortgaged Property; (v) any and all
Governmental Approvals with respect to any part of the Mortgaged
Property; and (vi) any and all operating, service, supply,
maintenance and similar contracts with respect to any part of the
Mortgaged Property.
“Assigned Leases” means
all leases presently existing or hereafter made, whether written or
verbal, or any letting of, or agreement for the use or occupancy
of, any part of the Mortgaged Property, and each modification,
extension, renewal and guarantee thereof, including the Rents (a
current listing of such Assigned Leases being attached to this
Agreement as Exhibit “A” ).
“Attorneys’ Fees”
means attorneys’ fees actually incurred at ordinary and
customary rates.
“Bankruptcy Law” means
Title 11, U.S. Code, or any similar Laws of any Jurisdiction for
the relief of debtors, and “Bankruptcy” means the
commencement of any case or other action for relief under
Bankruptcy Law.
“Borrowers” means Cole
WW II and Cole WW IV.
“Borrower Parties” means
Borrowers, Mortgagors, and any other Person who may from time to
time guarantee or otherwise become responsible for all or any part
of the Obligations.
“Borrower's Party's
Interest” means all right, title and interest of Borrower
Party of whatever kind, nature or description.
“Borrower's
Representatives” means the president, chief executive
officer, and chief financial officer, and any other person
designated by Borrower as Borrower's Representatives under this
Agreement.
“Business Day” means any
day of the Year, other than Saturday or Sunday, on which dealings
in United States Dollars are carried on in the London interbank
market and banks open for business in Atlanta, Georgia are not
required or authorized to close.
“Cash Management
Agreement” means any and all cash management agreements or
related agreements entered into or in effect among Borrower Parties
and Bank during the term of this Agreement.
“Change in Control”
means a change in the Equity Interests and/or the Voting Power of
any Borrower Party so that, after the change, one or more Persons
affiliated with Cole Capital Advisors, Inc. directly or indirectly
own collectively less than sixty-six and two-thirds percent
(66.67%) of the outstanding Equity Interests and Voting Power of
each Borrower Party.
“Closing” means the time
and place of actual execution and delivery of this Agreement, the
Notes, and except as waived by Bank, the other documents,
instruments, and things required by Section 5.1 hereof.
“Closing Certificates”
means certificates of even date herewith in form and substance
acceptable to Bank, and duly executed and delivered by each
Borrower Party and each Pledgor.
“Cole WW II” means Cole
WW II, LLC, an Arizona limited liability company.
“Cole WW II Loan” means
the loan which Bank has agreed to advance to Cole WW II in
accordance with the terms of Article 2 of this
Agreement.
“Cole WW II Loan Amount”
means Seven Million Two Hundred Thirty-Four Thousand Seven Hundred
Eighty-Seven and No/100 Dollars ($7,234,787.00).
“Cole WW II Loan Maturity
Date” means February 26, 2010 (viz., the date six years from
the date of this Agreement).
“Cole WW II Mortgaged
Property” means the Mortgaged Property located in Hockessin,
Delaware, Manahawin, New Jersey and Narberth,
Pennsylvania.
“Cole WW II Note” means
that certain Promissory Note of even date herewith in the principal
amount of $7,234,787.00 and made by Cole WW II to Bank, and
includes any amendment to or modification of such note and any
promissory note given in extension or renewal of, or in
substitution for, such note.
“Cole WW II Purchase
Agreement” means that certain Purchase and Sale Agreement
dated December 11, 2003 between Conwa Investors II, LLC (as Seller)
and Cole Capital Partners, LLC (as Purchaser), and which Purchase
and Sale Agreement has been assigned to Cole WW II pursuant to that
certain Assignment of Purchase and Sale Agreement dated January 20,
2004, and includes any amendment to or modification of such
Purchase and Sale Agreement.
“Cole WW IV” means Cole
WW IV, LLC, an Arizona limited liability company.
“Cole WW IV Loan” means
the loan which Bank has agreed to advance to Cole WW IV in
accordance with the terms of Article 3 of this
Agreement.
“Cole WW IV Loan Amount”
means Seven Million Six Hundred Eighty-Eight Thousand Two Hundred
Forty-Eight and No/100 Dollars ($7,688,248.00).
“Cole WW IV Loan Maturity
Date” means February 26, 2010 (viz., the date six years from
the date of this Agreement).
“Cole WW IV Mortgaged
Property” means the Mortgaged Property located in Newark,
Delaware, Clifton Heights, Pennsylvania and Vineland, New
Jersey.
“Cole WW IV Note” means
that certain Promissory Note of even date herewith in the principal
amount of $7,688,248.00 and made by Cole WW IV to Bank, and
includes any amendment to or modification of such note and any
promissory note given in extension or renewal of, or in
substitution for, such note.
“Cole WW IV Purchase
Agreement” means that certain Purchase and Sale Agreement
dated December 11, 2003 between Conwa Investors IV, LLC (as Seller)
and Cole Capital Partners, LLC (as Purchaser), and which Purchase
and Sale Agreement has been assigned to Cole WW IV pursuant to that
certain Assignment of Purchase and Sale Agreement dated January 20,
2004, and includes any amendment to or modification of such
Purchase and Sale Agreement.
“Collateral” means the
following assets of Borrower Parties, wherever located, whether now
owned or hereafter acquired:
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(A)
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The Mortgaged Property;
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(B)
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The Assigned Leases, the Rents and the other
Assigned Documents;
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(C) The
Lease Payment Accounts and the other Pledged Collateral (as defined
in the Pledge Agreement - Lease Payment Accounts);
(D) The
Pledged Equity Interests and the other Pledged Collateral (as
defined in the Pledge Agreement - Equity Interests);
(E) All
amounts that may be owing from time to time by Bank to Borrower
Party in any capacity, including, without limitation, any balance
or share belonging to Borrower Party of any Deposit Accounts or
other account with Bank;
(F) Any
and all other assets of Borrower Party of any kind, nature or
description and which are intended to serve as Collateral under any
one or more of the Security Documents; and
(G) All
interest, dividends, Proceeds (including, but without limitation,
insurance proceeds), products, rents, royalties, issues and profits
of any of the property described above and all notes, certificates
of deposit, checks and other instruments from time to time
delivered to or otherwise possessed by Bank for or on behalf of
Borrower Party in substitution for or in addition to any of said
property.
“Commitment Letter”
means that certain commitment letter dated January 16, 2004, from
Bank to Mr. Blair Koblenz and Mr. Chris Robertson.
“Conwa Property II”
means Conwa Property II LLC, a Delaware limited liability
company.
“Conwa Property IV”
means Conwa Property IV LLC, a Delaware limited liability
company.
“Debt Service” means
debt service computed at each Quarter-End based on (i) the monthly
payments due under the Loans for the immediately succeeding
applicable twelve-month period; or (ii) if Borrowers enter into a
Swap Transaction at Closing, and so long as such Swap Transaction
remains in effect, the payments due under such Swap Transaction for
the immediately succeeding twelve-month period.
“Debt Service Coverage”
means the ratio of (i) Net Operating Income to (ii) Debt
Service.
“Default” means the
occurrence of an event described in Section 9.1 hereof regardless
of whether there shall have occurred any passage of time or giving
of notice that would be necessary in order to constitute such event
as an Event of Default.
“Default Costs” means
all Indemnified Losses incurred by Bank by reason of a
Default.
“Default Rate” means a
variable per annum rate of interest equal to the lesser of (1) five
percent (5%) in excess of the Interest Rate otherwise payable
hereunder, or (2) the maximum rate allowed by applicable
Laws.
“Deposit Accounts” means
all bank accounts and other deposit accounts and lock boxes
included in the Collateral or established for the benefit of Bank
pursuant to the terms of any of the Loan Documents.
“Disability Laws” means
all Laws of any Jurisdiction relating to access and facilities for
disabled individuals, including without limitation the Americans
With Disabilities Act of 1990 (“ADA”), as amended (42
U.S.C. Sections 12101, et. seq.), and the rules and regulations
adopted and publications promulgated pursuant thereto.
“Environmental Laws”
means all Laws of any Jurisdiction relating to the governance or
protection of the environment, including without limitation, the
Comprehensive Environmental Response Compensation and Liability Act
of 1980 (“CERCLA”), as amended (42 U.S.C. Sections
9601, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Sections 1801, et seq.), the Resource
Conservation and Recovery Act (“RCRA”), as amended (42
U.S.C. Sections 6901, et seq.), the Clean Water Act, as amended (42
U.S.C. Sections 7401, et seq.), the Toxic Substances Control Act,
as amended (15 U.S.C. Sections 2601, et seq.), and the rules and
regulations adopted and publications promulgated pursuant
thereto.
“Equity Interests” means
any and all ownership or other equitable interests in the
applicable Person, including any interest represented by any
capital stock, membership interest, partnership interest, or
similar interest, but specifically excluding any interest of any
Person solely as a creditor of the applicable Person.
“Equity Owner” means any
Person owning an Equity Interest.
“Event of Default” means
the occurrence of an event described in Section 9.1 hereof provided
that there shall have occurred any passage of time or giving of
notice that would be necessary in order to constitute such event as
an Event of Default under Section 9.1.
“Existing Indebtedness”
means Indebtedness of Borrower Parties as reflected on the
Financial Statements.
“Financial Reporting
Agreement” means that certain Financial Reporting Agreement
of even date herewith among Borrower Parties, Wawa and Bank, and
includes any and all extensions, revisions, modifications or
amendments at any time made thereto.
“Financial Statements”
means the most recent balance sheets and income statements of
Borrower Parties delivered to Bank.
“Financing Statements”
means any UCC-1 financing statements and UCC-3 financing statements
(including any amendments and continuations) required under this
Agreement or any other Loan Document.
“Fiscal Year” means a
twelve-month period of time commencing on the first day of
January.
“Fiscal Year-End” means
the end of each Fiscal Year.
“Generally Accepted Accounting
Principles” means generally accepted principles of accounting
in effect from time to time in the United States applied in a
manner consistent with those used in preparing such financial
statements as have theretofore been furnished to Bank by the
applicable Person.
“Governing Body” means
the board of directors of a Person (or any Person or group of
Persons exercising similar authority).
“Governmental Approvals”
means all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and reports to, any
Governmental Authority.
“Governmental Authority”
means any nation or government and any political subdivision
thereof, and any governmental or quasi-governmental agency,
authority, board, bureau, commission, department, instrumentality,
or public body, or any court or administrative tribunal thereof
exercising executive, legislative, judicial, regulatory, or
administrative functions pertaining thereto, which has or asserts
jurisdiction over Bank, any Borrower Party, or any property of any
of them.
“Hazardous Materials”
and “Hazardous Substances” means “hazardous
materials” and “hazardous substances” as defined
under any applicable Environmental Law.
“Improvements” means the
“Improvements” as defined in the Mortgages.
“Indebtedness” means, as
to any Person, all items of indebtedness, obligation or liability,
whether matured or unmatured, liquidated or unliquidated, direct or
contingent, joint or several, including, but without limitation or
duplication:
(A) All
indebtedness guaranteed, directly or indirectly, in any manner, or
endorsed (other than for collection or deposit in the Ordinary
Course of Business) or discounted with recourse;
(B) All
indebtedness in effect guaranteed, directly or indirectly, through
agreements, contingent or otherwise:
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(1)
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to purchase such indebtedness; or
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(2) to
purchase, sell or lease (as lessee or lessor) property, products,
materials or supplies or to purchase or sell services, primarily
for the purpose of enabling the debtor to make payment of such
indebtedness or to assure the owner of the indebtedness against
loss; or
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(3)
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to supply funds to or in any other manner invest
in the applicable Person;
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(C) All
indebtedness secured by (or which the holder of such indebtedness
has a right, contingent or otherwise, to be secured by) any Lien
upon property owned or acquired subject thereto, whether or not the
liabilities secured thereby have been assumed; and
(D) All
indebtedness incurred as the lessee of goods or services under
leases that, in accordance with Generally Accepted Accounting
Principles, should not be reflected on the lessee's balance
sheet.
“Indemnified Losses”
means all damages, dues, penalties, fines, costs (including costs
of collection and court fees), amounts paid in settlement, taxes,
losses, expenses, and fees (including Attorneys' Fees and
expenses).
“Interest Rate” means
the actual interest rate at which the outstanding principal amount
of a Note bears interest from time to time during the term of such
Note.
“Jurisdiction” means
each and every nation or any political subdivision
thereof.
“Land” means the
“Land” as defined in the Mortgages.
“Laws” means each and
all laws, treaties, ordinances, statutes, rules, regulations,
orders, injunctions, writs or decrees of any Governmental
Authority, or any court or similar entity established by any
thereof, and any requirement of Licenses and Permits, whether now
in effect or hereafter enacted, including, without limitation,
Disability Laws and Environmental Laws.
“Lease Payment Accounts”
means the “Pledged Accounts” as defined in the Pledge
Agreement - Lease Payment Accounts.
“LIBOR Rate Interest
Period” means any applicable 30-Day LIBOR Rate Interest
Period, 60-Day LIBOR Rate Interest Period, or 90-Day LIBOR Rate
Interest Period.
“LIBOR Rate Notice”
means any applicable 60-Day LIBOR Rate Notice or 90-Day LIBOR Rate
Notice.
“Licenses and Permits”
means all building permits, certificates of occupancy, and other
permits, licenses, approvals, and authorizations of any
Governmental Authority necessary to own, use, occupy, operate, or
maintain the Mortgaged Property or any part thereof.
“Lien” means any
mortgage, pledge, encumbrance, charge, security interest,
assignment or other preferential arrangement of any nature
whatsoever, including any conditional sale agreement or other title
retention agreement.
“Loan Documents” means
this Agreement, the Notes, each of the Security Documents, the Cash
Management Agreement, the Financial Reporting Agreement, the
Closing Certificates, the Commitment Letter and any and all other
agreements, documents and instruments of any kind heretofore,
contemporaneously herewith or hereafter executed or delivered in
connection with, or evidencing, securing, guaranteeing or relating
to, the Loans, whether heretofore, simultaneously herewith or
hereafter delivered by any Borrower Party or any Pledgor, together
with any and all extensions, revisions, modifications or amendments
at any time made to any of the foregoing.
“Loan Fee” means a fee
in the amount of one and two-tenths percent (1.2%) of the Aggregate
Loan Amount (viz., $179,076.42), $50,000.00 of which has been
previously paid by the Borrower Parties simultaneously with the
execution and delivery of the Commitment Letter.
“Loans” means the Cole
WW II Loan and the Cole WW IV Loan.
“Material Adverse
Change” means the occurrence of an event giving rise to a
Material Adverse Effect.
“Material Adverse
Effect” means a material adverse effect on (i) the
business, condition (financial or otherwise), operations,
performance, properties or prospects of any Borrower Party or any
Pledgor, (ii) the rights and remedies of Bank under any Loan
Document, (iii) the ability of any Borrower Party or any
Pledgor to perform its Obligations under any Loan Document to which
it is or is to be a party, or (iv) the validity, priority,
perfection or enforceability of any Lien of Bank under any Security
Document.
“Maturity Date” means,
as applicable, the Cole WW II Loan Maturity Date or the Cole WW IV
Loan Maturity Date.
“Mortgages” means (i)
that certain Mortgage and Security Agreement of even date herewith
given by Mortgagors in favor of Bank with respect to the Mortgaged
Property located in the State of Delaware; (ii) that certain
Mortgage and Security Agreement of even date herewith given by
Mortgagors in favor of Bank with respect to the Mortgaged Property
located in the State of New Jersey; and (iii) that certain Mortgage
and Security Agreement of even date herewith given by Mortgagors in
favor of Bank with respect to the Mortgaged Property located in the
State of Pennsylvania; and includes any and all extensions,
revisions, modifications or amendments at any time made to any of
the foregoing.
“Mortgaged Property”
means the “Mortgaged Property” as defined in the
Mortgages.
“Mortgagors” means Conwa
Property II, Conwa Property IV, SWA Remainder II and SWA Remainder
IV.
“Net Operating Income”
means, as determined by Bank for any applicable period, actual
gross revenues arising from the Wawa Leases, less actual expenses
and allocations for (i) taxes, (ii) insurance, and (iii) reserves
for replacement.
“Notes” means the Cole
WW II Note and the Cole WW IV Note.
“Obligations” means the
obligations (including obligations of performance) and liabilities
of any Borrower Party and any Pledgor to Bank of every kind and
description whatsoever, direct or indirect, absolute or contingent,
due or to become due, now existing or hereafter incurred,
contracted or arising, or acquired by Bank from any source, joint
or several, liquidated or unliquidated, regardless of how they
arise or by what agreement or instrument they may be evidenced or
whether they are evidenced by any agreement or instrument, and
whether incurred as maker, endorser, surety, guarantor, general
partner, drawer, tort-feasor, indemnitor, account party with
respect to a letter of credit or otherwise, and which obligations
are incurred pursuant to or in connection with any Loan Document,
and any and all extensions and renewals of any of the same,
including but not limited to the obligation:
(A) To
pay the principal of and interest on the Notes in accordance with
the respective terms thereof and/or hereof, including any and all
extensions, modifications, and renewals thereof and substitutions
therefor;
(B) To
repay to Bank all amounts advanced by Bank hereunder, under any of
the Loan Documents or otherwise on behalf of any Borrower Party or
any Pledgor, including, but without limitation, future advances and
advances for principal or interest payments to prior secured
parties, mortgagees, or lienors, or for taxes, levies, insurance,
rent, or repairs to or maintenance or storage of, any of the
Collateral;
(C) To
pay, repay or reimburse to Bank all obligations under any
agreements designed to provide protection for fluctuations in
interest rates, exchange rates, or forward rates, including,
without limitation, interest rate exchange agreements, foreign
currency exchange agreements, foreign rate currency or interest
rate options, puts, warrants, and those commonly known as interest
rate “swap” agreements, and any interest rate cap or
collar protection agreements; (including, without limitation, Swap
Documents); and
(D) To
reimburse Bank, on demand, for all of Bank's expenses and costs,
including Attorneys’ Fees and expenses, in connection with
the preparation, administration, amendment, modification, or
enforcement of this Agreement and the other Loan Documents,
including, without limitation, any proceeding
brought or threatened to enforce
payment of any of the obligations referred to in the foregoing
paragraphs (A), (B) and (C).
“Ordinary Course of
Business” means an action taken by a Person only
if:
(A) Such
action is consistent with the past practices of such Person and is
taken in the ordinary course of the normal day-to-day operations of
such Person;
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(B)
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Such action is not required to be authorized by
the Governing Body of such Person; and
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(C) Such
action is similar in nature and magnitude to actions customarily
taken, without any authorization by any Governing Body, in the
ordinary course of the normal day-to-day operations of other
Persons that are in the same line of business as such
Person.
“Organizational
Documents” means (i) the articles of incorporation and the
bylaws of a corporation, (ii) the partnership agreement and any
statement of partnership of a general partnership, (iii) the
limited partnership agreement and the certificate of limited
partnership of a limited partnership, (iv) the articles of
organization and the operating agreement of a limited liability
company, (v) any charter or similar document adopted or filed in
connection with the creation, formation, or organization of a
Person, and (vi) any amendment to any of the foregoing.
“Participant” means any
bank, financial institution, Affiliate of Bank, or other entity
which enters into a participation agreement with Bank and/or to
whom Bank assigns all or a portion of its rights and obligations
under this Agreement.
“Payment Due Date” means
the eleventh (11th) day of each calendar month during the term of
this Agreement.
“Permitted Leases and Other
Transfers of Collateral” means (i) the Wawa Leases, (ii)
transfers of the Pledged Equity Interests (provided such transfer
does not result in a Change in Control) or Approved Transfers of
Equity Interests, and (iii) any other leases or other transfers of
Collateral approved by Bank in its discretion.
“Permitted Liens”
means:
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(A)
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Liens granted to Bank pursuant to the Loan
Documents;
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(B)
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Liens as set forth in the Title Insurance
Policies;
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(C) The
following Liens, if the granting of such Lien or the attachment of
such Lien to the Collateral (i) does not otherwise constitute a
Default under the terms of this Agreement, and (ii) does not give
rise to a Material Adverse Change:
(1) if
the validity or amount thereof is being contested in good faith by
appropriate and lawful proceedings, so long as levy and execution
thereon have been stayed and continue to be stayed:
a. Liens
for taxes, assessments or charges due and payable and subject to
interest or penalty;
b. Liens
upon, and defects of title to, real or personal property, including
any attachment of personal or real property or other legal process
prior to adjudication of a dispute on the merits;
c. Liens
of mechanics, materialmen, warehousemen, carriers, or other like
Liens; and
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d.
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Adverse judgments on appeal;
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(2) Pledges
or deposits made in the Ordinary Course of Business to secure
payment of workmen's compensation, or to participate in any fund in
connection with workmen's compensation, unemployment insurance,
old-age pensions or other social security programs;
(3) Good
faith pledges or deposits made in the Ordinary Course of Business
to secure performance of bids, tenders, Contracts (other than for
the repayment of borrowed money) or leases, not in excess of ten
percent (10%) of the aggregate amount due thereunder, or to secure
statutory obligations, or surety, appeal, indemnity, performance or
other similar bonds required in the Ordinary Course of Business;
and
(4) Purchase
money security interests granted in the Ordinary Course of Business
to secure not more than one hundred percent (100%) of the purchase
price of assets.
“Person” means any
individual, corporation, limited liability company, partnership,
association, joint-stock company, trust, unincorporated
organization, joint venture, court or Governmental
Authority.
“Petroleum Products”
means “petroleum products” as defined under any
applicable Environmental Law.
“Place for Payment”
means a place for payment as from time to time designated by Bank,
which place for payment currently is at the address of Bank as
hereinafter provided for with respect to notices.
“Pledge Agreement - Equity
Interests” means that certain Pledge Agreement (Equity
Interests) of even date herewith among Pledgors and Bank, and
includes any and all extensions, revisions, modifications or
amendments at any time made thereto.
“Pledge Agreement - Lease
Payment Accounts” means that certain Pledge Agreement (Lease
Payment Accounts) of even date herewith among Conwa Property II,
Conwa Property IV and Bank, and includes any and all extensions,
revisions, modifications or amendments at any time made
thereto.
“Pledged Equity
Interests” means the “Pledged Equity Interests”
as defined in the Pledge Agreement - Equity Interests.
“Pledgors” means
Borrowers, Conwa Equity II LLC, Conwa Equity IV LLC, SWA Remeq II
LLC and SWA Remeq IV LLC.
“Quarter” means a period
of time of three consecutive calendar months.
“Quarter-End” means the
last day of each of March, June, September, and
December.
“Records” means
correspondence, memoranda, tapes, discs, microfilm, microfiche,
papers, books and other documents, or transcribed information of
any type, whether expressed in ordinary or machine language, and
all filing cabinets and other containers in which any of the
foregoing is stored or maintained.
“Regulation D” means
Regulation D of the Board of Governors of the Federal Reserve
System from time to time in effect and shall include any successor
or other regulation or official interpretation of said Board of
Governors relating to reserve requirements applicable to member
banks of the Federal Reserve System.
“Regulation “T”,
Regulation “U”, and Regulation “X”“
means Regulation T, Regulation U, and Regulation X, respectively,
of the Board of Governors of the Federal Reserve System as now or
from time to time hereafter in effect and shall include any
successor or other regulation or official interpretation of said
Board of Governors relating to the extension of credit by banks for
the purpose of purchasing or carrying margin stocks applicable to
member banks of the Federal Reserve System.
“Rents” means all the
rents, issues, and profits now due and which may hereafter become
due under or by virtue of the Assigned Leases, together with all
claims and rights to the payment of money at any time arising in
connection with any rejection or breach of any of the Assigned
Leases under Bankruptcy Law, including
without limitation, all rights to
recover damages arising out of such breach or rejection, all rights
to charges payable by a tenant or trustee in respect of the leased
premises following the entry of an order for relief under
Bankruptcy Law in respect of a tenant and all rentals and charges
outstanding under the Assigned Leases as of the date of entry of
such order for relief.
“Required Endorsements”
means an ALTA Comprehensive 1 endorsement, an ALTA Form 3.0 zoning
endorsement, a variable rate endorsement, a survey endorsement
specifically insuring Bank that the surveys required herein are
accurate and accurately depict the same real estate covered by the
applicable Title Insurance Policy, an access endorsement, a usury
endorsement, endorsements for future advances under the Mortgages,
endorsements for mechanics' and materialmen's Liens, and any other
endorsements of the Title Insurance Policies required by
Bank.
“Reserve Requirement”
with respect to a LIBOR Rate Interest Period, means the weighted
average during the LIBOR Rate Interest Period of the maximum
aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve
requirements during the LIBOR Rate Interest Period) which is
imposed under Regulation D.
“Security Documents”
means all documents or instruments of any kind executed or
delivered in connection with the Loans, whether delivered prior to,
at, or after the Closing, wherein Bank is granted a Lien on, upon
or in any Borrower Party's or Pledgor's assets, and all documents
and instruments executed and delivered in connection with any of
the foregoing, together with any and all extensions, revisions,
modifications or amendments at any time made to any of such
documents or instruments, including but not limited to this
Agreement, the Mortgages, the Assignments of Rents, the Pledge
Agreement - Equity Interests, the Pledge Agreement - Lease Payment
Accounts, and the Financing Statements.
“Solid Wastes” means
“solid wastes” as defined under any applicable
Environmental Law.
“Solvent” and
“Solvency” mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the
property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities,
of such Person, (b) the present fair salable value of the
assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts
as they become absolute and matured, (c) such Person does not
intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay such debts and
liabilities as they mature and (d) such Person is not engaged
in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in
the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an
actual or matured liability.
“Swap Documents” means
any ISDA Master Agreement and any other documents and instruments
attached thereto or referred to therein, including any Schedules
and Confirmations, and entered into with respect to a Swap
Transaction.
“Swap Transaction” means
a transaction to exchange cash flows based on a predetermined
schedule of amounts and terms pursuant to Swap Documents and
relating to the Loans and the payments thereunder.
“SWA Remainder II” means
SWA Remainder II LLC, a Delaware limited liability
company.
“SWA Remainder IV” means
SWA Remainder IV LLC, a Delaware limited liability
company.
“Third Party” means a
Person not a party to this Agreement.
“Title Insurance
Company” means a title insurance company acceptable to Bank
in its discretion and authorized under applicable Law to issue a
Title Insurance Policy.
“Title Insurance
Policies” means standard American Land Title Association form
title insurance policies with respect to each parcel of the
Mortgaged Property, each issued by a Title Insurance Company to
Bank upon the applicable Mortgaged Property.
“Unsecured Indebtedness”
means Indebtedness not secured by any Lien.
“Voting Power” means,
with respect to any Person, the right to vote for the election of
the Governing Body of such Person under ordinary
circumstances.
“Wawa” means Wawa, Inc.,
a New Jersey corporation.
“Wawa Leases” means (i)
that certain Master Lease between Conwa Property II and Wawa, with
respect to the Mortgaged Property located in Narberth,
Pennsylvania, Hockessin, Delaware and Manahawkin, New Jersey; and
(ii) that certain Master Lease between Conwa Property IV and Wawa,
with respect to the Mortgaged Property located in Clifton Heights,
Pennsylvania, Vineland, New Jersey and Newark, Delaware.
“Without Notice” means
without demand of performance or other demand, advertisement, or
notice of any kind to or upon the applicable Person, except as may
be expressly required by applicable Law or the Loan
Documents.
“Year” means a period of
time of twelve consecutive calendar months.
“30-Day Adjusted LIBOR
Rate” means, for each respective 30-Day LIBOR Rate Interest
Period, an interest rate equal to the sum of (i) the applicable
30-Day LIBOR Rate, plus (ii) the Applicable Margin.
“30-Day LIBOR Rate”
means, as applicable to each respective 30-Day LIBOR Rate Interest
Period, a per annum rate of interest equal to the quotient obtained
(stated as an annual percentage rate rounded upward to the next
higher 100th of 1%) by dividing (A) the London Interbank Offered
Rate (“LIBOR”) for a period of one month as determined
by Bank from Telerate (or such other source as Bank may select if
such a rate index is not available from Telerate), by (B) 1.00
minus any Reserve Requirement for the 30-Day LIBOR Rate Interest
Period (expressed as a decimal).
“30-Day LIBOR Rate Interest
Period” means a period of one month from the first day of the
applicable 30-Day LIBOR Rate Interest Period to the date one month
thereafter.
“60-Day Adjusted LIBOR
Rate” means, for each respective 60-Day LIBOR Rate Interest
Period, an interest rate equal to the sum of (i) the applicable
60-Day LIBOR Rate, plus (ii) the Applicable Margin.
“60-Day LIBOR Rate”
means, as applicable to each respective 60-Day LIBOR Rate Interest
Period, a per annum rate of interest equal to the quotient obtained
(stated as an annual percentage rate rounded upward to the next
higher 100th of 1%) by dividing (A) the London Interbank Offered
Rate (“LIBOR”) for a period of two (2) months as
determined by Bank from Telerate (or such other source as Bank may
select if such a rate index is not available from Telerate), by (B)
1.00 minus any Reserve Requirement for the 60-Day LIBOR Rate
Interest Period (expressed as a decimal).
“60-Day LIBOR Rate Interest
Period” means a period of two months from the first day of
the applicable 60-Day LIBOR Rate Interest Period to the date two
months thereafter, and with respect to which a 60-Day LIBOR Rate
Notice has been given.
“60-Day LIBOR Rate
Notice” means a written notice given to Bank by a Borrower's
Representative providing for Borrower's election for the
outstanding principal balance of a Note to bear interest at the
applicable 60-Day Adjusted LIBOR Rate for a 60-Day LIBOR Rate
Interest Period, such notice to be given at least two (2) Business
Days prior to and specifying the date of the commencement of the
applicable 60-Day LIBOR Rate Interest Period; provided, however,
that, except as may be waived by Bank in Bank's discretion, (i) in
no event may any 60-Day LIBOR Rate Interest Period begin until the
expiration of any current LIBOR Rate Interest Period, (ii) in no
event may a 60-Day Adjusted LIBOR Rate be elected at any time when
the corresponding 60-Day LIBOR Rate Interest Period would extend
beyond the applicable Maturity Date, and (iii) if any such 60-Day
LIBOR Rate Notice is not timely received or is otherwise not
properly made, such 60-Day LIBOR Rate Notice, at Bank's election,
shall not be effective.
“90-Day Adjusted LIBOR
Rate” means, for each respective 90-Day LIBOR Rate Interest
Period, an interest rate equal to the sum of (i) the applicable
90-Day LIBOR Rate, plus (ii) the Applicable Margin.
“90-Day LIBOR Rate”
means, as applicable to each respective 90-Day LIBOR Rate Interest
Period, a per annum rate of interest equal to the quotient obtained
(stated as an annual percentage rate rounded upward to the next
higher 100th of 1%) by dividing (A) the London Interbank Offered
Rate (“LIBOR”) for a period of three (3) months as
determined by Bank from Telerate (or such other source as Bank may
select if such a rate index is not available from Telerate), by (B)
1.00 minus any Reserve Requirement for the 90-Day LIBOR Rate
Interest Period (expressed as a decimal).
“90-Day LIBOR Rate Interest
Period” means a period of three months from the first day of
the applicable 90-Day LIBOR Rate Interest Period to the date three
months thereafter, and with respect to which a 90-Day LIBOR Rate
Notice has been given.
“90-Day LIBOR Rate
Notice” means a written notice given to Bank by a Borrower's
Representative providing for Borrower's election for the
outstanding principal balance of a Note to bear interest at the
applicable 90-Day Adjusted LIBOR Rate for a 90-Day LIBOR Rate
Interest Period, such notice to be given at least two (2) Business
Days prior to and specifying the date of the commencement of the
applicable 90-Day LIBOR Rate Interest Period; provided, however,
that, except as may be waived by Bank in Bank's discretion, (i) in
no event may any 90-Day LIBOR Rate Interest Period begin until the
expiration of any current LIBOR Rate Interest Period, (ii) in no
event may a 90-Day Adjusted LIBOR Rate be elected at any time when
the corresponding 90-Day LIBOR Rate Interest Period would extend
beyond the applicable Maturity Date, and (iii) if any such 90-Day
LIBOR Rate Notice is not timely received or is otherwise not
properly made, such 90-Day LIBOR Rate Notice, at Bank's election,
shall not be effective.
1.2 Accounting
Terms. Accounting terms used and not otherwise defined in this
Agreement have the meanings determined by, and all calculations
with respect to accounting or financial matters unless otherwise
provided herein shall be computed in accordance with, Generally
Accepted Accounting Principles.
1.3 Construction
of Terms. Whenever used in this Agreement, the singular number
shall include the plural and the plural the singular, pronouns of
one gender shall include all genders, and use of the terms
“herein”, “hereof”, and
“hereunder” shall be deemed to be references to this
Agreement in its entirety unless otherwise specifically
provided.
1.4 Computation
of Time Periods. For purposes of computation of periods of time
hereunder, the word “from” means “from and
including”, the words “to” and
“until” each mean “to but excluding”, and
the word “through” means “through and
including”.
1.5 Reference
to Borrowers, Mortgagors, Pledgors and Borrower Parties. Any
reference in this Agreement to “Borrower” shall mean
each and any Borrower, singularly, and any reference to
“Borrowers” shall mean all the Borrowers, collectively;
any reference in this Agreement to “Mortgagor” shall
mean each and any Mortgagor, singularly, and any reference to
“Mortgagors” shall mean all the Mortgagors,
collectively; any reference in this Agreement to
“Pledgor” shall mean each and any Pledgor, singularly,
and any reference to “Pledgors” shall mean all the
Pledgors, collectively; and any reference in this Agreement to
“Borrower Party” shall mean each and any Borrower
Party, singularly, and any reference to “Borrower
Parties” shall mean all the Borrower Parties, collectively;
and all the Obligations of each Borrower and all Borrowers under
this Agreement and the other Loan Documents shall be the joint and
several obligations of all Borrowers.
ARTICLE II
2.1 General
Terms. Subject to the terms hereof, Bank will lend Cole WW II in a
single Advance at the Closing the Cole WW II Loan
Amount.
2.2 Disbursement
of the Cole WW II Loan. Bank will credit or pay the proceeds of the
Advance of the Cole WW II Loan to Cole WW II’s deposit
account with Bank, or in such other manner as Cole WW II and Bank
may agree.
2.3 The
Cole WW II Note. Cole WW II’s obligation to repay the Cole WW
II Loan shall be evidenced by the Cole WW II Note.
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2.4
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Interest Rate(A)
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. Interest on the Cole WW II Loan shall be
calculated as follows:
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(A) During
the entire term of the Cole WW II Note, except during any
applicable 60-Day LIBOR Rate Interest Period or 90-Day LIBOR Rate
Interest Period, the outstanding principal balance of the Cole WW
II Note shall bear interest at the applicable 30-Day Adjusted LIBOR
Rate during each applicable 30-Day LIBOR Rate Interest
Period.
(B) A
Borrower's Representative of Cole WW II may from time to time
deliver to Bank (i) a 60-Day LIBOR Rate Notice, in which case the
outstanding principal balance of the Cole WW II Note shall bear
interest at the applicable 60-Day Adjusted LIBOR Rate during the
applicable 60-Day LIBOR Rate Interest Period, or (ii) a 90-Day
LIBOR Rate Notice, in which case the outstanding principal balance
of the Cole WW II Note shall bear interest at the applicable 90-Day
Adjusted LIBOR Rate during the applicable 90-Day LIBOR Rate
Interest Period. Following the expiration of any applicable LIBOR
Rate Interest Period, if a Borrower's Representative of Cole WW II
shall not have timely and properly delivered a LIBOR Rate Notice
for a LIBOR Rate Interest Period to commence as of the expiration
of the applicable expiring LIBOR Rate Interest Period, then the
outstanding principal balance of the Cole WW II Note shall
automatically bear interest at the 30-Day Adjusted LIBOR Rate until
the commencement of the next 60-Day LIBOR Rate Interest Period or
90-Day LIBOR Rate Interest Period, if any.
2.5 Payments
of Principal and Interest. Principal and interest on the Cole WW II
Loan shall be payable as follows:
(A) On
the first Payment Due Date following the date of the Cole WW II
Note, on each successive Payment Due Date thereafter until the Cole
WW II Loan is paid in full, Cole WW II shall pay to Bank all
accrued and unpaid interest on the outstanding principal balance of
the Cole WW II Note.
(B) If
not earlier demanded pursuant to Section 9.2 hereof, the
outstanding principal balance of the Cole WW II Loan, together with
all accrued and unpaid interest thereon, shall be due and payable
to Bank on the Cole WW II Loan Maturity Date.
2.6 Use
of Proceeds of Cole WW II Loan. The proceeds of the Cole WW II Loan
shall be used to pay a portion of the Purchase Price under and as
defined in the Cole WW II Purchase Agreement, and to pay costs and
expenses in connection with the closing of the Loans.
ARTICLE III
3.1 General
Terms. Subject to the terms hereof, Bank will lend Cole WW IV in a
single Advance at the Closing the Cole WW IV Loan
Amount.
3.2 Disbursement
of the Cole WW IV Loan. Bank will credit or pay the proceeds of the
Advance of the Cole WW IV Loan to Cole WW IV’s deposit
account with Bank, or in such other manner as Cole WW IV and Bank
may agree.
3.3 The
Cole WW IV Note. Cole WW IV’s obligation to repay the Cole WW
IV Loan shall be evidenced by the Cole WW IV Note.
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3.4
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Interest Rate(A)
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. Interest on the Cole WW IV Loan shall be
calculated as follows:
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(B) During
the entire term of the Cole WW IV Note, except during any
applicable 60-Day LIBOR Rate Interest Period or 90-Day LIBOR Rate
Interest Period, the outstanding principal balance of the Cole WW
IV Note shall bear interest at the applicable 30-Day Adjusted LIBOR
Rate during each applicable 30-Day LIBOR Rate Interest
Period.
(C) A
Borrower's Representative of Cole WW IV may from time to time
deliver to Bank (i) a 60-Day LIBOR Rate Notice, in which case the
outstanding principal balance of the Cole WW IV Note shall bear
interest at the applicable 60-Day Adjusted LIBOR Rate during the
applicable 60-Day LIBOR Rate Interest Period, or (ii) a 90-Day
LIBOR Rate Notice, in which case the outstanding principal balance
of the Cole WW IV Note shall bear interest at the applicable 90-Day
Adjusted LIBOR Rate during the applicable 90-Day LIBOR Rate
Interest Period. Following the expiration of any applicable LIBOR
Rate Interest Period, if a Borrower's Representative of Cole WW IV
shall not have timely and properly delivered a LIBOR Rate Notice
for a LIBOR Rate Interest Period to commence as of the expiration
of the applicable expiring LIBOR Rate Interest Period, then the
outstanding principal balance of the Cole WW IV Note shall
automatically bear interest at the 30-Day Adjusted LIBOR Rate until
the commencement of the next 60-Day LIBOR Rate Interest Period or
90-Day LIBOR Rate Interest Period, if any.
3.5 Payments
of Principal and Interest. Principal and interest on the Cole WW IV
Loan shall be payable as follows:
(A) On
the first Payment Due Date following the date of the Cole WW IV
Note, on each successive Payment Due Date thereafter until the Cole
WW IV Loan is paid in full, Cole WW IV shall pay to Bank all
accrued and unpaid interest on the outstanding principal balance of
the Cole WW IV Note.
(B) If
not earlier demanded pursuant to Section 9.2 hereof, the
outstanding principal balance of the Cole WW IV Loan, together with
all accrued and unpaid interest thereon, shall be due and payable
to Bank on the Cole WW IV Loan Maturity Date.
3.6 Use
of Proceeds of Cole WW IV Loan. The proceeds of the Cole WW IV Loan
shall be used to pay a portion of the Purchase Price under and as
defined in the Cole WW IV Purchase Agreement, and to pay costs and
expenses in connection with the closing of the Loans.
ARTICLE IV
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4.
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PAYMENTS, ADDITIONAL COSTS, ETC.
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4.1 Default
Rate. Notwithstanding any provision herein or in any other Loan
Document to the contrary, upon the occurrence and during the
continuance of an Event of Default, the Interest Rate payable on
the Loans shall be the Default Rate.
4.2 Late
Payments. If any scheduled payment, whether principal, interest or
principal and interest, is late ten (10) days or more, Borrower
agrees to pay a late charge equal to five percent (5%) of the
amount of the payment which is late, but not more than the maximum
amount allowed by applicable Laws. The foregoing provision shall
not be deemed to excuse a late payment or be deemed a waiver of any
other rights Bank may have under this Agreement, including, subject
to the terms hereof, the right to declare the entire unpaid
principal and interest immediately due and payable.
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4.3
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Payment to Bank. Except as provided in Section
8.1(U):
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(A) All
sums payable to Bank under this Agreement or under any other Loan
Document shall be paid directly to Bank in immediately available
funds or by good check at the Place for Payment. If Bank shall send
Borrower statements of amounts due hereunder, such statements shall
be considered correct and conclusively binding on Borrower unless
Borrower notifies Bank to the contrary within thirty (30) days of
its receipt of any statement which it deems to be incorrect.
Alternatively, at its discretion, Bank may charge against any
deposit account of Borrower all or any part of any amount owed by
Borrower hereunder.
(B) All
payments to be made by Borrower hereunder will be made to Bank not
later than 1:00 p.m. at the Place for Payment. Payments received
after 1:00 p.m. at the Place for Payment shall be deemed to
be
payments made prior to 1:00 p.m. at
the Place for Payment on the next succeeding Business Day. Borrower
hereby authorizes Bank to charge its accounts with Bank in order to
cause timely payment of amounts due hereunder to be made (subject
to sufficient funds being available in such account for that
purpose).
(C) At
the time of making each such payment, Borrower shall, subject to
the other terms and conditions of this Agreement, specify to Bank
the Loan or other obligation of Borrower hereunder to which such
payment is to be applied. In the event that Borrower fails to so
specify the relevant Loan or if an Event of Default shall have
occurred and be continuing, Bank may apply such payments as it may
determine in its discretion.
4.4 Prepayment.
Borrower may pre-pay any Loan in full or, from time to time, in
part, without premium or penalty. In the case of any partial
prepayment, Bank shall have the right to require and shall permit
the remaining principal balance to be re-amortized over the
remaining term of the applicable Loan. All partial prepayments,
whether voluntary or mandatory, shall (except as may be directed by
Borrower to the contrary) be applied against the next principal
payment of the applicable Loan next coming due and in the inverse
order of maturity, and no prepayment shall entitle Borrower to
cease making any payment as otherwise scheduled
hereunder.
4.5 No
Setoff or Deduction. All payments of principal and interest on the
Loans and other amounts payable by Borrower hereunder shall be made
by Borrower without setoff or counterclaim, and, subject to the
next succeeding sentence, free and clear of, and without deduction
or withholding for, or on account of, any present or future taxes,
levies, imposts, duties, fees, assessments, or other charges of
whatever nature, imposed by any Governmental Authority. If any such
taxes, levies, imposts, duties, fees, assessments or other charges
are imposed, Borrower will pay such additional amounts as may be
necessary so that payment of principal of and interest on the Loans
and other amounts payable hereunder, after withholding or deduction
for or on account thereof, will not be less than any amount
provided to be paid hereunder and, in any such case, Borrower will
furnish to Bank certified copies of all tax receipts evidencing the
payment of such amounts within 30 days after the date any such
payment is due pursuant to applicable Laws.
4.6 Payment
on Non-Business Day; Payment Computations. Except as otherwise
provided in this Agreement to the contrary, whenever any
installment of principal of, or interest on, the Loans or other
amount due hereunder becomes due and payable on a day which is not
a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, in the case of any installment of
principal, interest shall be payable thereon at the rate per annum
determined in accordance with this Agreement during such
extension.
4.7 Additional
Costs. In the event that any applicable Law now or hereafter in
effect and whether or not presently applicable to Bank, or any
interpretation or administration thereof by any Governmental
Authority charged with the interpretation or administration
thereof, or compliance by Bank with any guideline, request or
directive of any such Governmental Authority (whether or not having
the force of law), shall (i) affect the basis of taxation of
payments to Bank of any amounts payable by Borrower under this
Agreement (other than taxes imposed on the income of Bank), or (ii)
shall impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by Bank, or (iii) impose any
other condition with respect to this Agreement, any other Loan
Document or the Loans, and the result of any of the foregoing is to
increase the cost to Bank of making, funding or maintaining the
Loans or to reduce the amount of any sum receivable by Bank
thereon, then Borrower shall pay to Bank from time to time, upon
request by Bank, additional amounts sufficient to compensate Bank
for such increased cost or reduced sum receivable to the extent
Bank is not compensated therefor in the computation of the Interest
Rate applicable to the Loans. A written statement as to the amount
of such increased cost or reduced sum receivable, prepared in good
faith and in reasonable detail by Bank and submitted by Bank to
Borrower, shall be conclusive and binding for all purposes absent
manifest error in computation.
4.8 Illegality
and Impossibility. In the event that any applicable Law now or
hereafter in effect and whether or not presently applicable to
Bank, or any interpretation or administration thereof by any
Governmental Authority charged with the interpretation or
administration thereof, or compliance by Bank with any guideline,
request or directive of such Governmental Authority (whether or not
having the force of law), including without limitation exchange
controls, shall make it unlawful or impossible for Bank to maintain
any Loan under this Agreement, Borrower shall upon receipt of
notice thereof from Bank repay in full the then outstanding
principal amount of such Loan, together with all accrued interest
thereon to the date of payment and all amounts owing to such Bank,
(a) on the last day of the then current interest period applicable
to such Loan if such Bank may lawfully
continue to maintain such Loan to
such day, or (b) immediately if Bank may not continue to maintain
such Loan to such day.
4.9 Indemnification.
If Borrower makes any payment of principal with respect to any Loan
on any other date than the last day of a LIBOR Rate Interest Period
applicable thereto, or if Borrower fails to borrow any Loan after
notice has been given to Bank in accordance with this Agreement, or
if Borrower fails to make any payment of principal or interest in
respect of any Loan when due, Borrower shall reimburse Bank on
demand for all Indemnified Losses incurred by Bank, including
without limitation any loss incurred in obtaining, liquidating or
employing deposits from a Third Party, whether or not Bank shall
have funded or committed to fund such Loan. A written statement as
to the amount of such loss or expense, prepared in good faith and
in reasonable detail by Bank and submitted by Bank to Borrower,
shall be conclusive and binding for all purposes absent manifest
error in computation. Calculation of all amounts payable to Bank
under this Section shall be made as though Bank shall have actually
funded or committed to fund the applicable Loan through the
purchase of an underlying deposit in an amount equal to the amount
of such Loan in the relevant market and having a maturity
comparable to the related interest period and through the transfer
of such deposit to a domestic office of such Bank in the United
States; provided, however, that Bank may fund the Loans in any
manner it sees fit and the foregoing assumption shall be utilized
only for the purpose of calculation of amounts payable under this
Section.
4.10 360-Day
Year. All interest payable under the Notes shall be calculated on
the basis of a 360-day Year by multiplying the outstanding
principal amount by the applicable per annum rate, multiplying the
product thereof by the actual number of days elapsed, and dividing
the product so obtained by 360.
4.11 No
Requirement to Actually Obtain Funds. Notwithstanding the fact that
the Interest Rate pursuant to the Loans may be calculated based
upon Bank's cost of funds, Borrower agrees that Bank shall not be
required actually to obtain funds from such source at any
time.
4.12 Usury
Limitation. If, at any time, the Interest Rate payable on any Loan
shall be deemed by any competent court of law or any Governmental
Authority
