REVOLVING CREDIT AGREEMENT

Exhibit 10.8.1

REVOLVING CREDIT AGREEMENT

THIS REVOLVING CREDIT AGREEMENT (this “ Credit Agreement ”) is dated as of November 12, 2003 by and among MUNIMAE MIDLAND CONSTRUCTION FINANCE , LLC , a Maryland limited liability company (the “ Borrower ”), the banks and financial institutions listed on the signature page hereof as the Initial Lenders (the “ Initial Lenders ”), and BANK OF AMERICA, N.A. , a national banking association (in its individual capacity, “ Bank of America ”), as administrative agent (together with any successor appointed pursuant to Section 11 below, the “ Administrative Agent ”) for the Lenders, and each of the other lending institutions that becomes a lender hereunder (herein collectively referred to as the “ Lenders ”; and each individually referred to as a “ Lender ”), and B ANC OF A MERICA S ECURITIES LLC , as sole lead arranger and sole book manager.

A. Borrower has requested that Lenders make Loans and cause the issuance of letters of credit for the principal purpose of financing certain constructions loans made by Borrower, to provide working capital, and for other purposes permitted under Borrower’s Operating Memorandum; and

B. Lenders are willing to make Loans and to cause the issuance of letters of credit upon the terms and subject to the conditions set forth in this Credit Agreement.

NOW, THEREFORE , in consideration of the mutual promises herein contained and for other valuable consideration the parties hereto do hereby agree as follows:

SECTION 1. DEFINITIONS

1.1 Defined Terms. For the purposes of this Credit Agreement, unless otherwise expressly defined, the following terms shall have the respective meanings assigned to them in this Section 1 or in the Section or recital referred to:

“ Acknowledgement and Consent ” means the Acknowledgement and Consent to the Assignment of Forward Commitment Agreement of even date herewith made by MAHGT in favor of Administrative Agent for the benefit of Lenders, pursuant to which MAHGT has made certain acknowledgements, consents and agreements with respect to the assignment of the Forward Commitment Agreement, the MAHGT Security Agreement, the MAHGT Account Assignment and the rights thereunder.

“ Adjusted LIBOR Rate ” means, for any LIBOR Loan for any Interest Period therefor, the rate per annum (rounded upwards to the next higher 1/100 of 1%) determined by Administrative Agent to be equal to: (a) the quotient obtained by dividing: (i) the LIBOR Rate for such LIBOR Loan for such Interest Period; by (ii) one (1) minus the LIBOR Reserve Requirement for such LIBOR Loan for such Interest Period; plus (b) the Applicable Margin.

“ Administrative Agent ” is defined in the preamble to this Credit Agreement.

“ Administrative Agent Funding Request ” is defined in the Acknowledgement and Consent.

“ Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Person specified. For the purpose of this definition, “control” and the correlative meanings of the terms “controlled by” and “under common control with” means the possession, directly or indirectly, of the

power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting shares or partnership interests or by contract or otherwise.

“ Applicable Lending Office ” means, for each Lender and for each Type of Loan, the “ lending office ” of such Lender (or of an affiliate of such Lender) designated for such Type of Loan on the signature pages hereof or such other office of such Lender (or an affiliate of such Lender) as such Lender may from time to time specify to Administrative Agent and Borrower by written notice in accordance with the terms hereof as the office by which Type of Loans are to be made and maintained.

“ Applicable Margin ” means eighty-seven and one-half basis points (0.875%) per annum.

“ Applicable Requirement ” means for any Included Investor that is: (a) a Governmental Plan Investor, or the Responsible Party with respect to such Governmental Plan Investor, in addition to a Rating of A-/A3 or higher, a minimum Funding Ratio for the Governmental Plan Investor based on the Rating of the Responsible Party as follows:

 

and (b) otherwise a Rated Investor, a Rating of A-/A3 or higher.

The first rating indicated in each case above is the S&P rating and the second rating indicated in each case above is the Moody’s rating. In the event that the S&P and Moody’s ratings are not equivalent, the Applicable Requirement shall be based on the lower of the two. If any such Person has only one Rating, from either S&P or Moody’s, that Rating shall apply. If a Governmental Plan Investor and its Responsible Party both have ratings, then the higher of the two shall apply.

“ Application and Agreement for Letter of Credit ” means an application and agreement for standby letter of credit by, between and among all or any of Borrower, on the one hand, and the Letter of Credit Issuer, on the other hand, in a form provided by the Letter of Credit Issuer (and customarily used by it in similar circumstances) and conformed to the terms of this Credit Agreement, either as originally executed or as it may from time to time be supplemented, modified, amended, renewed, or extended, provided, however , to the extent that the terms of such Application and Agreement are inconsistent with or otherwise more onerous than the terms of this Credit Agreement, the terms of this Credit Agreement shall control.

“ Approved Lending Entity ” means any Lending Entity that is administered or managed by: (a) a Lender, (b) an affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“ Assignee ” is defined in Section 12.11(c) hereof.

“ Assignment and Assumption Agreement ” means an assignment and assumption agreement entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 12.11(c) hereof), and accepted by the Administrative Agent, pursuant to which any Lender assigns all or any portion of its rights and obligations hereunder, which assignment and assumption

 

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agreement shall be in the form of Exhibit G attached hereto or any other form approved by the Administrative Agent.

“ Available Commitment ” means the lesser of: (a) the Maximum Commitment, or such lesser amount after giving effect to reductions in the Commitments pursuant to Section 3.6 hereof; or (b) ninety percent (90%) of the Remaining Subscription Amount of the Included Investors.

“ Bank of America ” is defined in the preamble to this Credit Agreement.

“ Borrower ” is defined in the first paragraph hereof.

“ Borrower Funding Request ” is defined in the Forward Commitment Agreement.

“ Borrower Party ” is defined in Section 11.1(a) hereof.

“ Borrower Security Agreement ” is defined in Section 5.1 .

“ Borrowing ” means a disbursement made by Lenders of any of the proceeds of the Loans when such disbursement increases the outstanding principal amount of the Loans, and “ Borrowings ” means the plural thereof.

“ Business Day ” means any day of the year except a Saturday, Sunday or other day on which commercial banks in the State of New York are authorized or required by law to close.

“ Capital Leases ” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee which, in accordance with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person and the amount of such obligation shall be the capitalized amount thereof determined in accordance with GAAP.

“ CERCLIS ” means the Comprehensive Environmental Response, Compensation and Liability Information System.

“ Closing Date ” means the date on which all of the conditions precedent set forth in Section 6.1 hereof are satisfied or waived.

“ Code ” means the Uniform Commercial Code as adopted in the State of Florida and any other state, which governs creation or perfection (and the effect thereof) of security interests in any Collateral for the Obligation.

“ Collateral ” is defined in Section 5.1 .

“ Collateral Documents ” means the security agreements, financing statements, assignments, and other documents and instruments from time to time executed and delivered pursuant to this Credit Agreement and any documents or instruments amending or supplementing the same, including, without limitation, the MAHGT Security Agreement, the MAHGT Account Assignment, the Borrower Security Agreement and Investor Confirmation.

 

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“ Commitment ” means, for each Lender, the amount set forth opposite its signature on this Credit Agreement or on its respective Assignment and Assumption Agreement, as the same may be reduced from time to time by Borrower, pursuant to Section 3.6 hereof, or by further assignment by such Lender pursuant to Section 12.11(c) hereof.

“ Commitment Fee Letter ” is defined in the Forward Commitment Agreement.

“ Commitment Period ” means the period commencing on the Closing Date and ending on the Maturity Date.

“ Compliance Certificate ” is defined in Section 8.1(b) .

“ Confidential Information ” means, at any time, all data, reports, interpretations, forecasts and records containing or otherwise reflecting information and concerning any or all of Borrower or its Investors which is not available to the general public, together with analyses, compilations, studies or other documents, which contain or otherwise reflect such information made available by or on behalf of Borrower or its Investors pursuant to this Credit Agreement orally or in writing to Administrative Agent or any Lender or their respective employees, advisors, attorneys, certified public accountants or agents, but shall not include any data or information that: (a) was or became generally available to the public at or prior to such time (unless divulged by Administrative Agent or such Lender or Administrative Agent’s or Lender’s respective employees, advisors, attorneys, certified public accountants or agents); or (b) was or became available to Administrative Agent or a Lender or to Administrative Agent’s or Lender’s respective attorneys, certified public accountants or agents on a non-confidential basis from Borrower or its Investors or any other source at or prior to such time.

“ Constituent Documents ” means, for any entity, its constituent or organizational documents, including: (a) in the case of a limited partnership, its certificate of limited partnership and its limited partnership agreement; (ii) in the case of a limited liability company, its certificate of formation or organization and its operating agreement or limited liability company agreement; (iii) in the case of a corporation, its articles or certificate of incorporation and its bylaws; and (iv) in the case of a trust, its declaration of trust and its bylaws.

“ Construction Loan Facility ” means the $70,000,000 revolving credit facility for warehouse, construction and permanent loans for multi-family projects which have received or are encumbered by low housing tax credits, as evidenced by that certain Credit Agreement dated as of December 4, 2001, as same has been amended pursuant to amendments dated November 4, 2002, and November 4, 2003, and as same may be further amended, restated, supplemented or restructured from time to time, and arranged and provided by Bank of America, N.A., as administrative agent, Fleet National Bank, as co-agent, and the other lenders named therein.

“ Continue ,” “ Continuation ,” and “ Continued ” shall refer to the continuation pursuant to a Rollover of a LIBOR Loan as a LIBOR Loan from one Interest Period to the next Interest Period.

“ Controlled Group ” means: (a) the controlled group of corporations as defined in Section 1563 of the Internal Revenue Code; or (b) the group of trades or businesses under common control as defined in Section 414(c) of the Internal Revenue Code, in each case of which Borrower is a part or may become a part.

 

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“ Conversion Date ” is any LIBOR Conversion Date, or Reference Rate Conversion Date, as applicable.

“ Conversion Notice ” is defined in Section 2.3(d) hereof.

“ Convert ,” “ Conversion ,” and “ Converted ” shall refer to a conversion pursuant to Section 2.3(d) or Section 4 of one Type of Loan into another Type of Loan.

“ Corporation Documents ” means, for any corporation, a true copy of the articles of incorporation or organization, as the case may be, evidencing the creation of such corporation, with all amendments thereto, certified by an duly authorized officer of such corporation as being true, correct and complete, together with: (a) a certificate of incorporation (or other similar instruments) and all amendments thereto currently certified by the applicable authority for the state or country (as the case may be) of incorporation; (b) a current bylaws; (c) a current certificate of existence and good standing (or other similar instruments) of such corporation issued by the applicable authority for the state or country (as the case may be) of incorporation; and (d) if appropriate, a current certificate of qualification and good standing (or other similar instruments) from the appropriate authority of each state in which it must be qualified to do business.

“ Covered Plan ” means an “ employee benefit plan ” as defined in Section 3(3) of ERISA and covered by Section 4 of ERISA.

“ Credit Agreement ” means this Revolving Credit Agreement, of which this Section 1 forms a part, together with all amendments and modifications hereof and supplements and attachments hereto.

“ Current Party ” is defined in Section 12.12 .

“ Debtor Relief Laws ” means any applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, insolvency, fraudulent conveyance, reorganization, or similar laws affecting the rights, remedies, or recourse of creditors generally, including without limitation the United States Bankruptcy Code and all amendments thereto, as are in effect from time to time during the term of the Loans.

“ Default Rate ” means on any day the lesser of: (a) the Reference Rate in effect on such day, plus four percent (4%); or (b) the Maximum Rate.

“ Defaulting Investor ” is defined in Section 2.1(c) hereof.

“ Detroit Pension Plan Investors ” means (a) the General Retirement System of the City of Detroit, (b) the Wayne County Employees’ Retirement System, and (c) the Policemen and Firemen System of the City of Detroit, and “ Detroit Pension Plan Investor ” means any of them.

“ Dollars ” and the sign “ $ ” means lawful currency of the United States of America.

“ Eligible Assignee ” means: (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Lending Entity; and (d) any other Person (other than natural person) approved by: (i) Administrative Agent, (ii) in the case of any assignment of a Commitment, and (iii) unless an Event of Default has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed); provided that

 

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notwithstanding the foregoing, “ Eligible Assignee ” shall not include the Borrower or any of Borrower’s Affiliates or subsidiaries.

“ Environmental Complaint ” means any complaint, order, demand, citation or notice threatened or issued in writing to Borrower by any Person with regard to air emissions, water discharges, Releases, or disposal of any Hazardous Material, noise emissions or any other environmental, health or safety matter affecting Borrower or any of Borrower’s Properties.

“ Environmental Laws ” means: (a) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Re-authorization Act of 1986, 42 U.S.C. §9601 et seq .; (b) the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §6901 et seq .; (c) the Clean Air Act, 42 U.S.C. §7401 et seq ., as amended by the Clean Air Act Amendments of 1990; (d) the Clean Water Act of 1977, 33 U.S.C. §1251 et seq .; (e) the Toxic Substances Control Act, 15 U.S.C.A. §2601 et seq .; (f) all other federal, state and local laws, or ordinances relating to pollution or protection of human health or the environment including without limitation, air pollution, water pollution, noise control, or the use, handling, discharge, disposal or Release of Hazardous Materials, as each of the foregoing may be amended from time to time, applicable to Borrower, and (g) any and all regulations promulgated under or pursuant to any of the foregoing statutes.

“ Environmental Liability ” means any written claim, demand, obligation, cause of action, accusation or allegation, or any order, violation, damage (including, without limitation, to any Person, property or natural resources), injury, judgment, penalty or fine, cost of enforcement, cost of remedial action, cleanup, restoration or any other cost or expense whatsoever, including reasonable attorneys’ fees and disbursements resulting from the violation or alleged violation of any Environmental Law or the imposition of any Environmental Lien or otherwise arising under any Environmental Law or resulting from any common law cause of action asserted by any Person.

“ Environmental Lien ” means a Lien in favor of any Governmental Authority: (a) under any Environmental Law; or (b) for any liability or damages arising from, or costs incurred by, any Governmental Authority in response to the Release or threatened Release of any Hazardous Material.

“ Environmental Requirement ” means any Environmental Law, agreement, or restriction, as the same now exists or may be changed, amended, or come into effect in the future, which pertains to health, safety, or the environment, including, but not limited to ground, air, water, or noise pollution, or underground or aboveground tanks.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder by any Governmental Authority, as from time to time in effect.

“ Event of Default ” is defined in Section 10.1 hereof.

“ Exclusion Event ” is defined in Section 2.1(c) hereof.

“ Extension Fee ” means the amount equal to the product of (a) the Maximum Commitment on the Initial Stated Maturity Date multiplied by (b) fifteen hundredths of one percent (0.15%).

 

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“ Extension Notice ” means the notice in the form of Exhibit H attached hereto pursuant to which Borrower elects to extend the Stated Maturity Date, and certifies that, as of the date of such notice: (a) the representations and warranties contained in Section 7 hereof are true and correct in all material respects, with the same force and effect as if made on and as of such date (except to the extent of changes in facts or circumstances that have been disclosed to Administrative Agent and do not constitute an Event of Default or a Potential Default under Section 10.1(a) , 10.1(h) or 10.1(i) hereof); (b) no Event of Default or Potential Default under Section 10.1(a) , 10.1(h) or 10.1(i) has occurred and is continuing; (c) no event has occurred which could reasonably be expected to have a Material Adverse Effect, and (d) the Stated Maturity Date as so extended is at least ninety (90) days prior to the Termination Date.

“ Fannie Mae ” means Fannie Mae, the Federal National Mortgage Association.

“ Federal Funds Rate ” means, on any day, a fluctuating interest rate per annum (rounded upwards, if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, 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 Administrative Agent from three (3) Federal funds brokers of recognized standing selected by Administrative Agent.

“ Fee Letter ” shall mean that certain letter agreement by and among Borrower, Administrative Agent and Lenders dated as of the date hereof.

“ Foreign Lender ” is defined in Section 4.6(e) hereof.

“ Forward Commitment ” means the unconditional commitment of MAHGT to make a loan to Borrower pursuant to the Forward Commitment Agreement.

“ Forward Commitment Agreement ” means that certain Forward Commitment Agreement dated as of November 6, 2003, made by MAHGT in favor of Borrower, as same may be amended, restated or supplemented from time to time, pursuant to which MMCF has issued the Forward Commitment, and substantially in the form of Exhibit E attached hereto.

“Forward Commitment Default” is defined in the Forward Commitment Agreement.

“ Funding Account ” means an account maintained by Administrative Agent for the purpose of funding Loans and receiving and disbursing payments hereunder. The Funding Account shall be maintained at an office of Administrative Agent in Dallas, Texas, or such other place of which Administrative Agent shall notify Borrower and Lenders.

“ Funding Ratio ” means for a Governmental Plan Investor, the total net fair market value of the assets of the plan over the actuarial present value of the plan’s total benefit liabilities, as reported in such plan’s audited financial statements.

“ Funding Request ” is defined in the Forward Commitment Agreement.

 

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“ GAAP ” means those generally accepted accounting principles and practices that are recognized as such by the American Institute of Certified Public Accountants or by the Financial Accounting Standards Board or through other appropriate boards or committees thereof, and that are consistently applied for all periods, after the date hereof, so as to properly reflect the financial position of Borrower, except that any accounting principle or practice required to be changed by the Financial Accounting Standards Board (or other appropriate board or committee of the said Board) in order to continue as a generally accepted accounting principle or practice may be so changed.

“ Governmental Authority ” means any foreign governmental authority, the United States of America, any State of the United States of America, and any subdivision of any of the foregoing, and any agency, department, commission, board, authority or instrumentality, bureau or court having jurisdiction over Borrower, Administrative Agent, any Lender, or the Letter of Credit Issuer, or any of their respective businesses, operations, assets, or properties.

“ Governmental Plan Investor ” means an Investor that is a pension plan and that is a governmental plan as defined in Section 3(32) of ERISA.

“ Guaranty Obligations ” means, with respect to any Person, without duplication, any obligations (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) guaranteeing any Indebtedness of any other Person in any manner, whether direct or indirect, and including without limitation any obligation, whether or not contingent: (a) to purchase any such Indebtedness or other obligation or any property constituting security therefor; (b) advance or provide funds or other support for the payment or purchase of such Indebtedness or obligation or to maintain working capital, solvency or other balance sheet condition of such other Person (including, without limitation, maintenance agreements, comfort letters, take or pay arrangements, put agreements, forward commitment agreements, or similar agreements or arrangements) for the benefit of the holder of Indebtedness of such other Person; (c) to lease or purchase property, securities or services primarily for the purpose of assuring the owner of such Indebtedness; or (d) to otherwise assure or hold harmless the owner of such Indebtedness or obligation against loss in respect thereof.

“ Hazardous Material ” means any substance, material, or waste which is or becomes regulated, under any Environmental Law, as hazardous to public health or safety or to the environment, including, but not limited to: (a) any substance or material designated as a “hazardous substance” pursuant to Section 311 of the Clean Water Act, as amended, 33 U.S.C. §1251 et seq ., or listed pursuant to Section 307 of the Clean Water Act, as amended; (b) any substance or material defined as “hazardous waste” pursuant to Section 1004 of the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §6901 et seq .; (c) any substance or material defined as a “hazardous substance” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. §9601 et seq .; or (d) petroleum, petroleum products and petroleum waste materials.

“ Included Investor ” means (a) each Detroit Pension Plan Investor, and (b) an Investor which has been designated and approved by all Lenders as an Included Investor, provided that (a) it is not a Defaulting Investor and it has met the Applicable Requirement; and (b) it has delivered to Administrative Agent the documentation required under Section 3.3 of the Forward Commitment Agreement; provided that if such Person is a Defaulting Investor it shall no longer be an Included Investor until such time as all Exclusion Events affecting it have been cured and it shall have been re-approved as an Included Investor in the sole and absolute discretion of Administrative Agent, the Letter of Credit Issuer, and all of the Lenders.

 

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“ Indebtedness ” of any Person means, 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 property purchased by such Person to the extent of the value of such property (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business); (d) all obligations, other than intercompany items, of such Person issued or assumed as the deferred purchase price of property or services purchased by such Person which would appear as liabilities on an unconsolidated balance sheet of such Person (other than trade accounts payable); (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed; (f) all Guaranty Obligations of such Person; (g) the principal portion of all obligations of such Person under: (i) Capital Leases; and (ii) any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product of such Person where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an operating lease in accordance with GAAP; (h) all obligations of such Person to repurchase any securities which repurchase obligation is related to the issuance thereof, including, without limitation, obligations commonly known as residual equity appreciation potential shares; (i) all net obligations of such Person in respect of Swap Contracts; (j) the maximum amount of all performance and standby 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); and (k) the aggregate amount of uncollected accounts receivable of such Person subject at such time to a sale of receivables (or similar transaction) regardless of whether such transaction is effected without recourse to such Person or in a manner that would not be reflected on the balance sheet of such Person in accordance with GAAP. The Indebtedness of any Person shall include the Indebtedness of any partnership or unincorporated joint venture for which such Person is legally obligated.

“ Indemnitee ” is defined in Section 12.5(b) hereof.

“ Initial Lenders ” is defined in the recital of parties to this Credit Agreement.

“ Initial Stated Maturity Date ” is defined in the definition of Stated Maturity Date.

“ Interest Option ” means the Adjusted LIBOR Rate and the Reference Rate.

“ Interest Payment Date ” means: (a) as to any Reference Rate Loan, the first Business Day of each month, commencing on the first of such days to occur after such Reference Rate Loan is made or any LIBOR Loan is Converted to a Reference Rate Loan, or such earlier date as such Reference Rate Loan shall mature, by acceleration or otherwise, and on any Reference Rate Conversion Date; (b) as to any LIBOR Loan, the first day of each month, commencing on the first of such days to occur after such LIBOR Loan is made or any Reference Rate Loan is converted to a LIBOR Loan, or such earlier date as such LIBOR Loan shall mature, by acceleration or otherwise, and on any LIBOR Rate Conversion Date; and (c) as to any Loan, the date of any prepayment made hereunder, as to the amount prepaid.

 

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“ Interest Period ” means, with respect to any LIBOR Loan, a period commencing:

(a) on the borrowing date of such LIBOR Loan; or

(b) on the termination date of the immediately preceding Interest Period in the case of a Rollover to a successive Interest Period as described in Section 2.3 hereof,

and ending one, two or three months thereafter, each as Borrower shall elect in accordance with Section 2.3 hereof; provided, further, however, that:

(i) any Interest Period that would otherwise end on a day that is not a LIBOR Banking Day shall be extended to the next succeeding LIBOR Banking Day unless such LIBOR Banking Day falls in another calendar month, in which case such Interest Period shall end on the next preceding LIBOR Banking Day;

(ii) any Interest Period which begins on the last LIBOR Banking Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (i) above, end on the last LIBOR Banking Day of a calendar month; and

(iii) if the Interest Period would otherwise end after the Stated Maturity Date, such Interest Period shall end on the Stated Maturity Date.

“ Internal Revenue Code ” means the United States Internal Revenue Code of 1986, as amended.

“ Investors ” means the investors in MAHGT and reference to “ Investor ” shall be to any one of them.

“ Investor Confirmation ” is defined in the Forward Commitment Agreement.

“ Laws ” means, collectively, all federal, state, and local statutes, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the forces of law.

“ Lender Default ” is defined in Section 12.12 hereof.

“ Lenders ” means the Initial Lenders and each of the other lending institutions that shall become a Lender hereunder pursuant to Section 12.11(c) hereof.

“ Lending Entity ” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

 

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“ Letter of Credit ” means any letter of credit issued by the Letter of Credit Issuer pursuant to Section 2.8 hereof either as originally issued or as the same may, from time to time, be amended or otherwise modified or extended.

“ Letter of Credit Issuer ” means Bank of America, or any Lender or Affiliate of such Lender so designated, and which accepts such designation, by Administrative Agent and approved by Borrower.

“ Letter of Credit Liability ” means the aggregate amount of the undrawn stated amount of all outstanding Letters of Credit plus the amount drawn under Letters of Credit for which the Letter of Credit Issuer and Lenders, or any one or more of them, have not yet received payment or reimbursement (in the form of a conversion of such liability to Loans, or otherwise) as required pursuant to Section 2.8 hereof.

“ LIBOR Banking Day ” means a day other than a Saturday or a Sunday, and on which Administrative Agent is open for business in New York and London, and dealing in offshore Dollars, or, if Administrative Agent does not have an office dealing with offshore Dollars in such locations, then in such location as Administrative Agent does have such an office.

“ LIBOR Conversion Date ” is defined in Section 2.3(d) hereof.

“ LIBOR Loan ” means a Loan made hereunder with respect to which the interest rate is calculated by reference to the LIBOR Rate for a particular Interest Period.

“ LIBOR Rate ” means, with respect to any LIBOR Loan for any Interest Period, the rate per annum (rounded upwards to the next higher 1/100 of 1%) appearing on Telerate Page 3750 as the London interbank offered rate for deposits in Dollars with respect to such Interest Period at approximately 11:00 a.m. (London time) on the date two (2) LIBOR Banking Days prior to the date such rate shall apply. If for any reason such rate is not available, the “ LIBOR Rate ” shall be the rate per annum (rounded upwards to the next higher 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London interbank offered rate for deposits in Dollars with respect to such Interest Period at approximately 11:00 a.m. (London time) on the date two (2) LIBOR Banking Days prior to the date such rate shall apply; provided, however , if more than one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of all such rates (rounded upwards to the next higher 1/100 of 1%).

“ LIBOR Reserve Requirement ” means, at any time, the maximum rate at which reserves (including, without limitation, any marginal, special, supplemental, or emergency reserves) are required to be maintained under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) by member banks of the Federal Reserve System against “ Eurocurrency liabilities ” (as such term is used in Regulation D). The Adjusted LIBOR Rate shall be adjusted automatically on and as of the effective date of any change in the LIBOR Reserve Requirement. Each determination by Administrative Agent of the LIBOR Reserve Requirement shall, in the absence of manifest error, be conclusive and binding.

“ Lien ” means any lien, mortgage, security interest, tax lien, pledge, encumbrance, or conditional sale or title retention arrangement, or any other interest in property designed to secure the repayment of indebtedness, whether arising by agreement or under any statute or law, or otherwise.

 

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“ LLC Documents ” means, for any limited liability company, a true copy of the articles of incorporation or organization, as the case may be, evidencing the creation of such limited liability company, with all amendments thereto, certified by an authorized officer of such limited liability company as being true, correct and complete, together with: (a) a certificate of incorporation (or other similar instruments) and all amendments thereto currently certified by the applicable authority for the state or country (as the case may be) of incorporation; (b) a current operating agreement (or operating memorandum or similar document); (c) a current certificate of existence and good standing (or other similar instruments) of such limited liability company issued by the applicable authority for the state or country (as the case may be) of incorporation; and (d) if appropriate, a current certificate of qualification and good standing (or other similar instruments) from the appropriate authority of each state in which it must be qualified to do business.

“ Loan Documents ” means this Credit Agreement, the Notes (including any renewals, extensions, re-issuances and refundings thereof), the Forward Commitment Agreement, the MAHGT Security Agreement, the MAHGT Account Assignment, the Acknowledgement and Consent, the Borrower Security Agreement and such other agreements and documents, and any amendments, restatements, or supplements thereto or modifications thereof, executed or delivered pursuant to the terms of this Credit Agreement or any of the other Loan Documents and any additional documents delivered in connection with any such amendment, restatement, supplement or modification.

“ Loans ” means the group of LIBOR Loans and Reference Rate Loans made by Lenders to Borrower pursuant to the terms and conditions of this Credit Agreement.

“ MAHGT ” means Midland Affordable Housing Group Trust, a Florida group trust.

“ MAHGT Account Assignment ” is defined in the Forward Commitment Agreement.

“MAHGT Promissory Note” is defined in the Forward Commitment Agreement.

“ MAHGT Security Assignment ” is defined in the Forward Commitment Agreement.

“ Material Adverse Effect ” means any circumstances or events which could reasonably be expected to: (a) have any adverse effect whatsoever upon the validity, performance, or enforceability of any of the Loan Documents executed by Borrower, MAHGT or any Included Investor; (b) materially impair the ability of Borrower, MAHGT or an Included Investor to fulfill their obligations under the Loan Documents; (c) cause an Event of Default; or (d) materially impair, impede, or jeopardize the obligation and the liability of any Included Investor to fulfill its obligations under its Subscription Agreement or Investor Confirmation.

“ Maturity Date ” means the earliest of: (a) the Stated Maturity Date; (b) the date upon which Borrower terminates the Commitments pursuant to Section 3.6 hereof or otherwise; and (c) the date upon which Administrative Agent declares the Obligation due and payable after the occurrence of an Event of Default.

“ Maximum Commitment ” means $72,000,000.00, or such lower amount as reduced by Borrower pursuant to Section 3.6 hereof.

 

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“ Maximum Rate ” means, on any day, the highest rate of interest (if any) permitted by applicable law on such day.

“ MMCF Funding Request ” is defined in the Forward Commitment Agreement.

“ Moody’s ” means Moody’s Investors Service, Inc.

“ Notes ” means the promissory notes provided for in Section 3.1 hereof, and all promissory notes delivered in substitution or exchange therefor, as such notes may be amended, restated, reissued, extended or modified; and “ Note ” means any one of the Notes.

“ Obligation ” means all present and future indebtedness, obligations, and liabilities of Borrower to Lenders (including, without limitation, Loans, Letters of Credit Liability, or both), and all renewals and extensions thereof (including, without limitations, Loans), or any part thereof, arising pursuant to this Credit Agreement (including, without limitation, the indemnity provisions hereof) or represented by the Notes, and all interest accruing thereon, and attorneys’ fees incurred in the enforcement or collection thereof, regardless of whether such indebtedness, obligations, and liabilities are direct, indirect, fixed, contingent, joint, several, or joint and several; together with all indebtedness, obligations, and liabilities of Borrower to Lenders evidenced or arising pursuant to any of the other Loan Documents, and all renewals and extensions thereof, or any part thereof.

“ Operating Memorandum” means the Operating Memorandum of Borrower dated as of December 1, 1999, as amended.

“ Other Taxes ” is defined in Section 4.6(b) hereof.

“ Participant ” is defined in Section 12.11(b) hereof.

“ Person ” means any natural person, joint venture, association, trust, estate, business trust, corporation, nonprofit corporation, company, partnership, limited liability company, sovereign government or agency, instrumentality, or political subdivision thereof, or any similar entity or organization.

“ Plan ” means any plan, including single employer and multi-employer plans to which Section 4021(a) of ERISA applies, or any retirement medical plan, each as established or maintained for employees of Borrower or any member of the Controlled Group to which Section 4021(a) of ERISA applies.

“ Potential Default ” means any condition, act, or event which, with the giving of notice or lapse of time or both, would become an Event of Default.

“ Prime Rate ” means, on any day, the prime rate reported in the Wall Street Journal (or the average prime rate if a high and low prime rate are therein reported), and the Prime Rate shall change without notice with each change in such prime rate as of the date such change is reported. If the Wall Street Journal does not or ceases to report such a prime rate, the Prime Rate shall thereafter be determined by such alternate method as may be reasonably selected by Administrative Agent.

“ Principal Obligation ” means the sum of (a) the aggregate outstanding principal amount of the Loans; plus (b) the aggregate undrawn amount of all outstanding Letters of Credit, plus the amount drawn under

 

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Letters of Credit for which the Letter of Credit Issuer and Lenders, or any one of them, have not yet received payment or reimbursement (in the form of a conversion of such liability to Loans, or otherwise).

“ Pro Rata Share ” means, with respect to each Lender, the percentage obtained from the fraction: (a) (i) the numerator of which is the Commitment of such Lender; and (ii) the denominator of which is the aggregate Commitments of all Lenders; or (b) in the event the Commitments are zero (0): (i) the numerator of which is the Obligation outstanding with respect to such Lender; and (ii) the denominator of which is the total Obligation outstanding.

“ Rated Investor ” means any Investor that has a Rating.

“ Rating ” means, for any Person, its senior unsecured debt rating (or equivalent thereof, such as, but not limited to, a corporate credit rating, issuer rating/insurance financial strength rating (for an insurance company), general obligation rating (for a governmental entity), or revenue bond rating (for an educational institution)) from either of S&P or Moody’s.

“ Reference Rate ” means, on any date, the Prime Rate. Each change in the Reference Rate shall become effective without prior notice to Borrower automatically as of the opening of business on the day of such change in the Reference Rate.

“ Reference Rate Conversion Date ” is defined in Section 2.3(d) .

“ Reference Rate Loan ” means a Loan made hereunder with respect to which the interest rate is calculated by reference to the Reference Rate.

“ Register ” is defined in Section 12.11(e) hereof.

“ Regulation D ,” “ Regulation T ,” “ Regulation U ,” and “ Regulation X ” means Regulation D, T, U, or X, as the case may be, of the Board of Governors of the Federal Reserve System, from time to time in effect, and shall include any successor or other regulation relating to reserve requirements applicable to partner banks of the Federal Reserve System.

“ Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

“ Release ” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching, or migration of Hazardous Materials into the environment, or into or out of any Projects, including the movement of any Hazardous Material through or in the air, soil, surface water, groundwater, of any Property.

“ Remaining Subscription Amount ” means, with respect to any Investor, at any time (i) such Investor’s Subscription Amount at such time, minus (ii) such Investor’s aggregate Subscription Contributions made or subject to a Subscription Call Notice prior to such time.

“ Request for Borrowing ” is defined in Section 2.3 hereof.

“ Request for Letter of Credit ” is defined in Section 2.8(b)  hereof.

 

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“ Required Lenders ” means, at any time: (a) Lenders not in Lender Default and holding an aggregate Pro Rata Share of greater than fifty percent (50%) of the Commitments; or (b) at any time that the Lender Commitments are zero (0), Lenders not in Lender Default and owed an aggregate Pro Rata Share of greater than fifty percent (50%) of the Obligation outstanding at such time.

“ Responsible Officer ” means: (a) in the case of a corporation or trust, its president or any vice president, and, in any case where two Responsible Officers are acting on behalf of such corporation, the second such Responsible Officer may be a secretary or assistant secretary; (b) in the case of a limited partnership, the Responsible Officer of the general partner, acting on behalf of such general partner in its capacity as general partner; and (c) in the case of a limited liability company, the Responsible Officer of the managing member, acting on behalf of such managing member in its capacity as managing member.

“ Responsible Party ” means, for any Governmental Plan Investor: (a) if the state under which the Governmental Plan Investor operates is obligated to fund the Governmental Plan Investor and is liable to fund any shortfalls, the state; and (b) otherwise, the Governmental Plan Investor itself.

“ Rollover ” means the renewal of any LIBOR Loan upon the expiration of the Interest Period with respect thereto, pursuant to Section 2.3 hereof.

“ Rollover Notice ” is defined in Section 2.3 hereof.

“ S&P ” means Standard & Poor’s Rating Services, a division of the McGraw & Hill Companies, Inc.

“ Securities Exchange Act ” means the Securities Exchange Act of 1934, as amended to the date hereof and from time to time hereafter, and any successor statute.

“ Stated Maturity Date ” means November 12, 2004 (the “ Initial Stated Maturity Date ”) unless extended pursuant to Section 2.13 hereof, in which case the Stated Maturity Date shall be such extended date.

“Subscription Agreements” means all Subscription Agreements entered into by and between the Investors and MAHGT, pursuant to which such Investors have agreed to purchase units of MAHGT for the subscription amount set forth therein; and “Subscription Agreement” means any one of the Subscription Agreements.

“ Subscription Amount ” means, for any Investor, its “ Subscription Amount ” as defined in the Subscription Agreement; and “ Subscription Amounts ” mean the aggregate Subscription Amounts of all Investors under the Subscription Agreements.

“ Subscription Call ” means a call upon the Investors to fund all or any portion of the Remaining Subscription Amounts pursuant to and in accordance with the Trust Agreement and their respective Subscription Agreement.

“ Subscription Call Notice ” means any written notice sent to the Investors for the purpose of making a Subscription Call.

 

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“ Subscription Contribution ” means, for any Investor, a payment of amounts due and owing by such Investor under its Subscription Agreement.

“ Swap Contract ” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.

“ Tangible Net Worth ” means, at any particular time, all amounts which, in conformity with GAAP, would be included as unitholders’ equity on a balance sheet of MAHGT; provided, however, there shall be excluded therefrom: (a) any amount at which shares of beneficial interest of MAHGT appear as an asset on the Borrower’s balance sheet, (b) goodwill, including any amounts, however designated, that represent the excess of the purchase price paid for assets or stock over the value assigned thereto, (c) patents, trademarks, trade names, and copyrights, (d) deferred expenses, (e) loans and advances to any unitholder, director, officer, or employee of MAHGT or any Affiliate of MAHGT, and (f) all other assets which are properly classified as intangible assets.

“ Taxes ” is defined in Section 4.6(a) hereof.

“ Telerate Page 3750 ” means the display designated as “Page 3750” on the Moneyline Telerate Service (or such other page as may replace Page 3750 on the Moneyline Telerate Service or such other service as may be nominated by the British Bankers’ Association as the information vendor for the purpose of displaying British Bankers’ Association interest settlement rates for U.S. Dollar deposits). Any LIBOR Rate determined on the basis of the rate displayed on Telerate Page 3750 in accordance with the provisions hereof shall be subject to corrections, if any, made in such rate and displayed by the Moneyline Telerate Service within one hour of the time when such rate is first displayed by such Service.

“ Termination Date ” has the meaning assigned to it in the Subscription Agreement.

“ Trust Agreement ” means the Declaration of Trust of MAHGT, dated December 11, 1991, as amended.

“ Trust Documents ” means, for any real estate investment trust, a true copy of the declaration of trust evidencing the creation of such trust, with all amendments thereto, certified by an authorized officer of such trust as being true, correct and complete, together with: (a) the bylaws of the trust, (b) a copy of the declaration of trust and all amendments thereto currently certified by the applicable authority for the state of organization; (c) if appropriate, a current certificate of existence and good standing of such trust issued by the applicable authority for the state of organization; and (d) if appropriate, a current certificate of

 

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qualification and good standing (or other similar instruments) from the appropriate authority of each state in which it must be qualified to do business.

“ Type of Loan ” means any type of Loan ( i.e., a Reference Rate Loan or LIBOR Loan).

“ 2003 Side Letter ” is defined in the Forward Commitment Agreement.

1.2 Other Definitional Provisions. All terms defined in this Credit Agreement shall have the above-defined meanings when used in the Notes or any other Loan Documents or any certificate, report or other document made or delivered pursuant to this Credit Agreement, unless otherwise defined in such other document.

(a) Defined terms used in the singular shall import the plural and vice versa .

(b) The words “hereof,” “herein,” “hereunder,” and similar terms when used in this Credit Agreement shall refer to this Credit Agreement as a whole and not to any particular provisions of this Credit Agreement.

(c) Unless otherwise specified in the Loan Documents, time references are to time in New York, New York.

SECTION 2. REVOLVING CREDIT LOANS AND LETTERS OF CREDIT

2.1 The Commitment.

(a) Committed Amount . Subject to the terms and conditions herein set forth, Lenders agree, during the Commitment Period: (i) to extend to Borrower a revolving line of credit; and (ii) to participate in Letters of Credit issued by the Letter of Credit Issuer for the account of Borrower.

(b) Limitation on Borrowings and Re-borrowings . Notwithstanding anything to the contrary herein contained, Lenders shall not be required to advance any Borrowing or Rollover, or cause the issuance of any Letter of Credit if:

(i) after giving effect to such Borrowing or Rollover, or issuance of such Letter of Credit, the Principal Obligation would exceed the Available Commitment; or

(ii) an Event of Default or a Potential Default exists.

(c) Exclusion Events . If any of the following events (each, an “ Exclusion Event ”) shall occur with respect to any Included Investor (such Investor hereinafter referred to as a “ Defaulting Investor ”), then such Investor shall no longer be an Included Investor:

(i) it shall: (A) apply for or consent to the appointment of a receiver, trustee, custodian, intervenor, or liquidator of itself or of all or a substantial part of its assets; (B) file a voluntary petition as debtor in bankruptcy or admit in writing that it is unable to pay its debts as they become due; (C) make a general assignment for the benefit of

 

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creditors; (D) file a petition or answer seeking reorganization or an arrangement with creditors or take advantage of any Debtor Relief Laws; (E) file an answer admitting the material allegations of, or consent to, or default in answering, a petition filed against it in any bankruptcy, reorganization, or insolvency proceeding; or (F) take personal, partnership, limited liability company, corporate or trust action, as applicable, for the purpose of effecting any of the foregoing;

(ii) an order, order for relief, judgment, or decree shall be entered by any court of competent jurisdiction or other competent authority approving a petition seeking such Investor’s reorganization or appointing a receiver, custodian, trustee, intervenor, or liquidator of such Investor or of all or substantially all of its assets, and such order, judgment, or decree shall continue unstayed and in effect for a period of sixty (60) days;

(iii) any final judgment(s) for the payment of money which in the aggregate exceed fifteen percent (15%) of its net worth shall be rendered against such Investor, and such judgment or judgments shall not be satisfied or discharged at least ten (10) days prior to the date on which any of its assets could be lawfully sold to satisfy such judgment;

(iv) such Investor shall repudiate, challenge, or declare unenforceable its obligation to make contributions to the capital of MAHGT pursuant to its Subscription Agreement or a Subscription Call Notice, or shall otherwise disaffirm any material provision of the Trust Agreement or its Subscription Agreement relating to Subscription Contributions;

(v) any representation or warranty made under the Investor Confirmation executed by such Investor shall prove to be untrue or inaccurate in any material respect;

(vi) such Investor shall redeem or transfer its units in MAHGT except as permitted by the Trust Agreement, the Forward Commitment Agreement, the Acknowledgement and Consent, and its Investor Confirmation;

(vii) such Investor shall be in default under the Trust Agreement, its Subscription Agreement, or its Investor Confirmation;

(viii) default shall occur in the performance by such Investor of any of the material covenants or agreements contained in any of the Loan Documents executed by it (except as otherwise specifically addressed in this Section 2.1(c)(c) , in which case no grace period beyond any provided for herein shall apply) and such default shall continue uncured to the satisfaction of Administrative Agent for a period of thirty (30) days after written notice thereof has been given by Administrative Agent to Borrower and to such Investor; or

(ix) such Investor shall fail to maintain the Applicable Requirement for such Investor required in the definition of Applicable Requirement in  Section 1 hereof.

 

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(d) Mandatory Prepayment .

(i) Excess Loan Outstanding. If, on any day, the Principal Obligation exceeds the Available Commitment, then Borrower shall pay such excess to Administrative Agent, for the benefit of Lenders, in immediately available funds (except to the extent any such excess is addressed by Section 2.1(d)(ii) ): (i) within two (2) Business Days, to the extent such funds are available in any account maintained by Borrower; and (ii) otherwise within ten (10) Business Days.

(ii) Excess Letters of Credit Outstanding . If any excess calculated pursuant to Section 2.1(d)(i) is attributable to undrawn Letters of Credit, Borrower shall pay such excess to Administrative Agent, when required pursuant to the terms of Section 2.1(d)(i) for deposit in a segregated interest-bearing cash collateral account, as security for such portion of the Obligation. Unless otherwise required by law, upon: (i) a change in circumstances such that the Principal Obligation no longer exceeds the Available Commitment; or (ii) the full and final payment of the Obligation, Administrative Agent shall return to Borrower any amounts remaining in said cash collateral account.

2.2 Revolving Credit Commitment. Subject to the terms and conditions herein set forth, each Lender severally agrees, during the Commitment Period, to make Loans to Borrower at any time and from time to time in an aggregate principal amount up to such Lender’s Commitment at any such time; provided, however, that, after making such Loans: (a) such Lender’s Pro Rata Share of the Principal Obligation would not exceed such Lender’s Commitment; and (b) the Principal Obligation would not exceed the Available Commitment. Subject to the foregoing limitation, Borrower may borrow, repay without penalty or premium, and re-borrow hereunder, during the Commitment Period. Each Borrowing pursuant to this Section 2.2 shall be made ratably by Lenders in proportion to such Lender’s Pro Rata Share of the Available Commitment. No Lender shall be obligated to fund any Loan if the interest rate applicable thereto under Section 2.6(a) hereof would exceed the Maximum Rate in effect with respect to such Loan.

2.3 Manner of Borrowing. Borrower shall give Administrative Agent notice of the date of each requested Borrowing hereunder, which notice may be by telephone, if confirmed in writing, telex, facsimile, or other written communication (a “ Request for Borrowing ”), and which notice shall be irrevocable and effective upon receipt by Administrative Agent. Each Request for Borrowing shall be furnished to Administrative Agent, no later than 12:00 p.m.: (a) at least three (3) LIBOR Banking Days prior to the requested date of the funding of a LIBOR Loan; and (b) at least one (1) Business Day prior to the requested date of the funding of a Reference Rate Loan; and must specify: (i) the amount of such Borrowing; (ii) whether such Borrowing shall be a LIBOR Loan or a Reference Rate Loan; and (iii) the Interest Period therefor in the case of a LIBOR Loan. Any Request for Borrowing received by Administrative Agent after 12:00 p.m. shall be deemed to have been given by Borrower on the next succeeding LIBOR Banking Day, in the case of a LIBOR Loan, or the next succeeding Business Day, in the case of a Reference Rate Loan.

(a) Request for Borrowing . Each Request for Borrowing shall be in the form attached hereto as Exhibit A (with blanks appropriately completed in conformity herewith) and shall be deemed to constitute a representation and warranty by Borrower that:

(i) The representations and warranties set forth in Section 7 hereof are true and correct in all material respects on and as of the date of such Request for Borrowing, with the same force and effect as if made on and as of such date provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct as of such earlier date, and for purposes of this Section 2.3 , the representations and warranties contained in Section 7.6 hereof shall be deemed to refer to the most recent financial statements furnished pursuant to Section 8.1 hereof;

 

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(ii) No Event of Default or Potential Default exists and is continuing at such date; and

(iii) After giving effect to such Borrowing the Principal Obligation will not exceed the Available Commitment as of such date.

Each Request for Borrowing shall be irrevocable and binding on Borrower, and Borrower shall indemnify Lenders against any cost, loss, or expense incurred by Lenders, or any of them, as a result of any failure to fulfill, on or before the date specified in the Request for Borrowing, the conditions to such Borrowing set forth herein, including, without limitation, any cost, loss, or expense incurred by reason of the liquidation or redeployment of the deposits or other funds acquired by Lenders, or any of them, to fund the Borrowing to be made by Lenders as a part of such Borrowing when such Borrowing, as a result of such failure, is not made on such date. A certificate of Administrative Agent setting forth the amount of any such cost, loss or expense, and the basis for the determination thereof and the calculation thereof, shall be delivered to Borrower and shall, in the absence of a manifest error, be conclusive and binding. Notwithstanding any provision to the contrary contained in this Section 2.3 , Borrower shall not be required to indemnify Lenders against any costs, loss or expenses incurred by Lenders, or any of them, as a result of the liquidation or redeployment of funds due to Borrower’s failure to fulfill, on or before the date specified for a Reference Rate Borrowing, the conditions to such Borrowing set forth herein.

(b) Request for Current Rates . Prior to making a Request for Borrowing, Borrower may (without specifying whether the anticipated Borrowing shall be a Reference Rate Loan or LIBOR Loan) request that Administrative Agent provide it with the most recent Reference Rate and Adjusted LIBOR Rate available to Lenders. Administrative Agent shall endeavor to provide such quoted rates to Borrower within two (2) Business Days after such request, provided, however , that Administrative Agent’s failure to timely provide such rates shall not relieve Borrower of its obligations hereunder.

(c) Rollovers . No later than 12:00 p.m. at least three (3) LIBOR Banking Days prior to the termination of each Interest Period related to a LIBOR Loan, Borrower shall give Administrative Agent written notice (which notice may be via fax) substantially in the form of Exhibit D attached hereto (the “ Rollover Notice ”) whether it desires to renew such LIBOR Loan. The Rollover Notice shall also specify the length of the Interest Period selected by Borrower with respect to such Rollover. Each Rollover Notice shall be irrevocable and effective upon notification thereof to Administrative Agent. If Borrower fails to timely give Administrative Agent the Rollover Notice with respect to any LIBOR Loan, Borrower shall be deemed to have

 

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elected the Reference Rate as the Interest Option with respect to such Loan commencing on the expiration of the preceding Interest Period.

(d) Conversions . Borrower shall have the right, with respect to: (i) any Reference Rate Loan, on any LIBOR Banking Day (a “ LIBOR Conversion Date ”), to convert such Reference Rate Loan to a LIBOR Loan; and (ii) any LIBOR Loan, on any Business Day (a “ Reference Rate Conversion Date ”) to convert such LIBOR Loan to a Reference Rate Loan, provided, however, that Borrower shall, on such Reference Rate Conversion Date, make the payments required by Section 4.5 hereof; in either case, by giving Administrative Agent written notice substantially in the form of Exhibit B attached hereto (a “ Conversion Notice ”) of such selection no later than 12:00 p.m. at least: (1) three (3) LIBOR Banking Days prior to such LIBOR Conversion Date; or (2) one (1) Business Day prior to such Reference Rate Conversion Date. Each Conversion Notice shall be irrevocable and effective upon notification thereof to Administrative Agent.

(e) Tranches . Notwithstanding anything to the contrary contained herein, no more than five (5) LIBOR Loans may be outstanding hereunder at any one time during the Commitment Period.

(f) Agent Notification to Lenders . Administrative Agent shall promptly notify each Lender of receipt of a Request for Borrowing, a Conversion Notice or a Rollover Notice, the amount of the Borrowing and such Lender’s Pro Rata Share thereof, the date the Borrowing is to be made, the Interest Option selected, the Interest Period selected, if applicable, and the applicable rate of interest.

2.4 Minimum Loan Amounts. Each LIBOR Rate Loan shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000, and each Reference Rate Loan shall be in an aggregate amount that is an integral multiple of $100,000 and not less than $500,000; provided, however , that a Reference Rate Loan may be in an aggregate amount that is equal to the entire unused balance of the total Commitments or that is required to finance the reimbursement of a Letter of Credit under Section 2.8 .

2.5 Funding. Each Lender shall make the proceeds of its Pro Rata Share of each Borrowing available to Administrative Agent at the appropriate Funding Account for the account of Borrower no later than 12:00 p.m. on the date specified in the Request for Borrowing as the borrowing date, in immediately available funds, and, upon fulfillment of all applicable conditions set forth herein, Administrative Agent shall deposit such proceeds in immediately available funds in Borrower’s account maintained with Administrative Agent not later than 2:00 p.m. on the borrowing date or, if requested by Borrower in the Request for Borrowing, shall wire-transfer such funds as requested on or before such time. The failure of any Lender to advance the proceeds of its Pro Rata Share of any Borrowing required to be advanced hereunder shall not relieve any other Lender of its obligation to advance the proceeds of its Pro Rata Share of any Borrowing required to be advanced hereunder. The liabilities and obligations of each Lender hereunder shall be several and not joint, and neither Administrative Agent nor any Lender shall be responsible for the performance by any other Lender of its obligations hereunder. Each Lender hereunder shall be liable to Borrower only for the amount of its respective Commitment.

 

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2.6 Interest Rate.

(a) Rate . The unpaid principal of each Reference Rate Loan shall bear interest at a rate per annum which shall from day to day be equal to the Reference Rate in effect from day to day. The unpaid principal of each LIBOR Loan shall bear interest at a rate per annum which shall be equal to the Adjusted LIBOR Rate for the applicable Interest Period.

(b) Change in Rate; Past Due Amounts; Calculations of Interest . Each change in the rate of interest for any Borrowing shall become effective, without prior notice to Borrower, automatically as of the opening of business of Administrative Agent on the date of said change. Interest on the unpaid principal balance of each Loan shall be calculated on the basis of the actual days elapsed in a year consisting of 360 days. If any principal of, or interest on, the Obligation is not paid when due, then (in lieu of the interest rate provided in subsection (a) above) such past due principal and interest shall bear interest at the Default Rate. If any other Event of Default hereunder shall arise, then (in lieu of the interest rate provided in subsection (a) above) the principal amount of each Loan in effect at such time and the interest thereon shall bear interest at the Default Rate, until such Event of Default is cured or is waived.

2.7 Determination of Rate. Administrative Agent shall determine each interest rate applicable to the Borrowings hereunder. Administrative Agent shall give prompt notice to Borrower and to Lenders of each rate of interest so determined, and its determination thereof shall be conclusive and binding in the absence of manifest error.

2.8 Letters of Credit.

(a) Letter of Credit Commitment . Subject to the terms and conditions hereof, on any Business Day during the Commitment Period, Administrative Agent shall cause the Letter of Credit Issuer to issue such Letters of Credit in such aggregate face amounts as Borrower may request, provided that : (i) on the date of issuance, after giving effect to the issuance of any such Letter of Credit, the Letter of Credit Liability will not exceed the remainder of: (x) the Available Commitment as of such date; minus (y) the Principal Obligation as of such date; (ii) the expiry date of the Letter of Credit shall not be later than the earlier of: (x) twelve months after the date of issuance; or (y) thirty (30) days prior to the Stated Maturity Date, without the Letter of Credit Issuer’s Consent, in its sole discretion; and (iii) the Letter of Credit Issuer shall be under no obligation to issue any Letter of Credit if, after the Closing Date: (x) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any Law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date; or (y) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer.

(b) Request . Each request for a Letter of Credit (a “ Request for Letter of Credit ”) shall be submitted to Administrative Agent in the form attached hereto as Exhibit C (with blanks

 

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appropriately completed in conformity herewith), together with an Application and Agreement for Letter of Credit, for the Letter of Credit Issuer, on or before 11:00 a.m. (New York time) at least five (5) Business Days prior to the requested date of issuance of a Letter of Credit. Administrative Agent shall promptly notify each Lender of such Request for Letter of Credit and the terms of the requested Letter of Credit. Upon each such application, Borrower shall be deemed to have automatically made to Administrative Agent, each Lender, and the Letter of Credit Issuer the following representations and warranties:

(i) As of the date of the issuance of the Letter of Credit requested, the representations and warranties set forth in Section 7 hereof are true and correct in all material respects on and as of the date of such issuance, with the same force and effect as if made on and as of such date (except to the extent of changes in facts or circumstances that have been disclosed to Lenders and do not constitute an Event of Default or a Potential Default under this Credit Agreement or any other Loan Document);

(ii) No Event of Default or, to its knowledge, Potential Default exists and is continuing at such date; and

(iii) After giving effect to the issuance of the requested Letter of Credit the Letter of Credit Liability will not exceed the remainder of: (A) the Available Commitment as of such date; minus (B) the Principal Obligation as of such date.

(c) Participation by Lenders . Each Lender shall and does hereby participate ratably with the Letter of Credit Issuer in each Letter of Credit issued and outstanding hereunder to the extent of its Pro Rata Share of the Letter of Credit Liability with respect to each such Letter of Credit, and shall share in all rights and obligations resulting therefrom, including, without limitation: (i) the right to receive from Administrative Agent its Pro Rata Share of any reimbursement of the amount of each draft drawn under each Letter of Credit; (ii) the right to receive from Administrative Agent its Pro Rata Share of the Letter of Credit fee pursuant to Section 2.12 hereof; (iii) the right to receive from Administrative Agent its additional costs pursuant to Section 4.1 hereof; and (iv) the obligation to pay to the Administrative Agent or the Letter of Credit Issuer, as the case may be, in immediately available funds, its Pro Rata Share of any unreimbursed drawing under a Letter of Credit.

(d) Payment of Letter of Credit . In consideration for the issuance by the Letter of Credit Issuer of the Letters of Credit, Borrower hereby authorizes, empowers, and directs Administrative Agent, for the benefit of Lenders and the Letter of Credit Issuer, to disburse directly, as a Borrowing hereunder, to the Letter of Credit Issuer, with notice to Borrower, in immediately available funds an amount equal to the stated amount of each draft drawn under each Letter of Credit plus all interest, reasonable costs and expenses, and fees due to the Letter of Credit Issuer pursuant to this Credit Agreement. Subject to receipt of notice from the Administrative Agent, each Lender shall pay to the Administrative Agent such Lender’s Pro Rata Share of the amount disbursed by the Administrative Agent on the Business Day on which the Letter of Credit Issuer honors any such draft or incurs or is owed any such interest, costs, expenses or fees. Administrative Agent will promptly notify Borrower of any disbursements made by Lenders pursuant to the terms hereof, provided that the failure to give such notice will not affect the validity of the disbursement, and Administrative Agent shall provide Lenders with

 

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notice thereof. Any such disbursement made by Lenders to the Letter of Credit Issuer on account of a Letter of Credit shall be deemed a Reference Rate Loan; and Borrower shall be deemed to have given to Administrative Agent, in accordance with the terms and conditions of Section 2.3 , a Request for Borrowing with respect thereto. Administrative Agent and Lenders may conclusively rely on the Letter of Credit Issuer as to the amount due the Letter of Credit Issuer by reason of any draft of a Letter of Credit or due the Letter of Credit Issuer under any Application and Agreement for Letter of Credit.

(e) Acceleration of Undrawn Amounts . Should Administrative Agent demand payment of the Obligation hereunder prior to the Maturity Date pursuant to Section 10.2 hereof, Administrative Agent, by written notice to Borrower, may take one or more of the following actions: (i) declare the obligation of the Letter of Credit Issuer to issue Letters of Credit hereunder terminated, whereupon such obligations shall forthwith terminate without any other notice of any kind; or (ii) declare the outstanding Letter of Credit Liability to be forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby waived, and demand that Borrower pay to Administrative Agent for deposit in a segregated interest-bearing cash collateral account, as security for the Obligation, an amount equal to the aggregate undrawn stated amount of all Letters of Credit then outstanding at the time such notice is given. Unless otherwise required by law, upon the full and final payment of the Obligation, Administrative Agent shall return to Borrower any amounts remaining in said cash collateral account

2.9 Use of Proceeds and Letters of Credit. The proceeds of the Loans and the Letters of Credit shall be used for the purposes permitted under the Operating Memorandum. Neither Lenders nor Administrative Agent shall have any liability, obligation, or responsibility whatsoever with respect to Borrower’s use of the proceeds of the Loans or the Letters of Credit, and neither Lenders nor Administrative Agent shall be obligated to determine whether or not Borrower’s use of the proceeds of the Loans or the Letters of Credit are for purposes permitted under the Operating Memorandum. Nothing, including, without limitation, any Borrowing, any Rollover, any issuance of any Letter of Credit, or acceptance of other document or instrument, shall be construed as a representation or warranty, express or implied, to any party by Lenders or Administrative Agent as to whether any investment by Borrower is permitted by the terms of the Operating Memorandum.

2.10 Administrative Agent Fees. Borrower shall pay, to Administrative Agent, fees in consideration of the arrangement and administration of the Commitments, which fees shall be payable in amounts and on the dates agreed to between Borrower and Administrative Agent in the Fee Letter.

2.11 Unused Commitment Fee. In addition to the payments provided for in Section 3 hereof, Borrower shall pay to Administrative Agent, for the account of each Lender, according to its Pro Rata Share, an unused commitment fee on the daily amount of the Maximum Commitment which was unused (through the extension of Loans or issuance of Letters of Credit) during the immediately preceding calendar quarter calculated on the basis of actual days elapsed in a year consisting of 360 days: (a) if such unused amount is equal to or more than fifty percent (50%) of the Maximum Commitment, at the rate of seventeen and one-half basis points (0.175%) per annum; and (b) if such unused amount is less than fifty percent (50%) of the Maximum Commitment, at the rate of fifteen basis points (0.15%) per annum, in each case payable in arrears on the first Business Day of each calendar quarter for the preceding calendar quarter. For purposes of this Section 2.11 , the fee shall be calculated each time the Principal Obligation

 

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or the Maximum Commitment increases or decreases, for the number of days since the last calculation of the fee, as follows:

(((Maximum Commitment for such period - Principal Obligation for such period) * [0.175% or 0.15%, as applicable] * number of days in such period) / 360)

Borrower and Lenders acknowledge and agree that the commitment fees payable hereunder are bona fide commitment fees and are intended as reasonable compensation to Lenders for committing to make funds available to Borrower as described herein and for no other purposes.

2.12 Letter of Credit Fees. Borrower shall pay to Administrative Agent, for the benefit of Lenders, in consideration for the issuance of Letters of Credit hereunder, a non-refundable per annum fee equal to .875% on the face amount of each Letter of Credit, less the amount of any draws on such Letter of Credit, payable in quarterly installments in arrears, commencing on the issuance date and continuing for so long as such Letter of Credit remains outstanding.

2.13 Extension of Stated Maturity Date. Borrower may extend the Stated Maturity Date one time to May 12, 2005 upon: (a) the delivery of the Extension Notice to Administrative Agent not more than ninety (90) days nor less than thirty (30) days prior to the Initial Stated Maturity Date, and (b) the payment of the Extension Fee.

SECTION 3. PAYMENT OF OBLIGATIONS

3.1 Notes. The LIBOR Loans and Reference Rate Loans to be made by Lenders to Borrower hereunder shall be evidenced by promissory notes of Borrower. Each Note issued by Borrower shall: (a) be in the amount of the applicable Lender&#821