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This excerpt taken from the AYR 8-K filed May 5, 2008. benefited
Lender”) shall at any time receive any payment of all or part of the
Loans owing to it, or interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender’s Loans owing to it, or interest
thereon, such benefited Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender’s Loans owing
to it, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the
26
Lenders;
provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefited Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without
interest. Each Borrower agrees that any Lender so purchasing a
participation from a Lender pursuant to this Section 8.3 may,
to the fullest extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Person were the direct creditor of the Borrowers in the amount of such
participation.
8.4. Survival. All covenants,
agreements, representations and warranties made herein shall survive the making
by the Lenders of the Loans and the execution and delivery to the Lenders of
this Agreement and shall continue in full force and effect so long as any of
Obligations remain outstanding or any Lender has any Loan hereunder or any
Borrower has continuing obligations hereunder unless otherwise provided
herein. Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
permitted assigns of such party and all covenants, provisions and agreements by
or on behalf of any Borrower which are contained in the Related Documents shall
inure to the benefit of the successors and permitted assigns of the Lenders or
any of them.
8.5. Expenses. Each Borrower
agree to pay on demand (subject, in the case of preparation, execution, delivery
and administration costs, to the Fee Letter), all reasonable costs and expenses
of the Facility Agent and the Joint Lead Arrangers in connection with the
preparation, execution, delivery, administration, modification, and amendment of
this Agreement, the other Related Documents, subject to any cap that may have
otherwise been agreed, and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and expenses of counsel for
the Facility Agent (excluding the cost of internal counsel) with respect thereto
and with respect to advising the Facility Agent as to its rights and
responsibilities under the Related Documents. Each Borrower further
agree to pay on demand all costs and expenses of the Facility Agent and the
Lenders, if any (including, without limitation, reasonable external attorneys’
fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings, or otherwise) of the Related Documents and the
other documents to be delivered hereunder. Notwithstanding anything
to the contrary in this Section 8.5, the Borrowers shall only be obligated
to pay the fees and expenses of one counsel in any jurisdiction on behalf of the
Facility Agent, the Joint Lead Arrangers and the Lenders.
8.6. Amendments and
Waivers. Neither this Agreement, any other Related Document,
nor any terms hereof or thereof may be amended, supplemented or modified except
in accordance with the provisions of this Section 8.6. The
Required Lenders and each ACS Group Member to the relevant Related Document may,
or, with the written consent of the Required Lenders, the Facility Agent and
each ACS Group Member to the relevant Related Document may, from time to time,
(a) enter into written amendments, supplements or modifications hereto and
to the other Related Documents for the purpose of adding any provisions to this
Agreement or the other Related Documents or changing in any manner the rights of
the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on
such terms and conditions as the Required Lenders or the Facility Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Related Documents or any Default or Event of Default and
its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall
(i) forgive the principal amount or
27
extend
the final scheduled date of maturity of any Loan, reduce the stated rate of any
interest or fee payable hereunder or under any other Related Document (except
that any amendment or modification of defined terms used in the financial
covenants in any Intercreditor Agreement shall not constitute a reduction in the
rate of interest or fees for purposes of this clause (i)) or extend the
scheduled date of any payment thereof, or increase the amount or extend the
expiration date of any Lender’s Commitment, in each case without the written
consent of each Lender directly affected thereby; (ii) eliminate or reduce
the voting rights of any Lender under this Section 8.6 without the written
consent of such Lender; (iii) reduce any percentage specified in the
definition of Required Lenders, consent to the assignment or transfer by any
Borrower of any of their respective rights and obligations under this Agreement
and the other Related Documents, release all or substantially all of the
Collateral, in the case of clauses (i) through (iii) without the
written consent of all Lenders; or (iv) amend, modify or waive any
provision of Article VII without the written consent of the Facility
Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the ACS Group Members, the Lenders, the Facility Agent and all future
holders of the Loans. In the case of any waiver, the ACS Group
Members, the Lenders and the Facility Agent shall be restored to their former
position and rights hereunder and under the other Related Documents, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon;
No
notice to or demand on any Borrower in any case shall entitle such Borrower or
any other Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No
delay or omission on any Lender’s or the Facility Agent’s part in exercising any
right, remedy or option shall operate as a waiver of such or any other right,
remedy or option or of any Default or Event of Default.
8.7. Counterparts. This
Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such fully-executed counterpart.
8.8. Return of Funds. If after
receipt of any payment of all or any part of the Obligations, any Lender is for
any reason compelled to surrender such payment to any Person because such
payment is determined to be void or voidable as a preference, impermissible
setoff, a diversion of trust funds or for any other reason, this Agreement shall
continue in full force and each Borrower shall be liable to, and shall indemnify
and hold the Facility Agent or such Lender harmless for, the amount of such
payment surrendered until the Facility Agent or such Lender shall have been
finally and irrevocably paid in full. The provisions of the foregoing
sentence shall be and remain effective notwithstanding any contrary action which
may have been taken by the Facility Agent or the Lenders in reliance upon such
payment, and any such contrary action so taken shall be without prejudice to the
Facility Agent or the Lenders’ rights under this Agreement and shall be deemed
to have been conditioned upon such payment having become final and
irrevocable.
28
8.9. Indemnification; Limitation of
Liability.
(a) Each
Borrower agrees to indemnify and hold harmless the Facility Agent, Collateral
Agent (which term for purposes of this Section 8.9
includes the “Mortgagee”) under each Security Agreement), the Joint Lead
Arrangers and each Lender and each of their Affiliates and their respective
officers, directors, employees, Facility Agents, and advisors (each, an “ This excerpt taken from the AYR 8-K filed May 5, 2008. benefited
Lender”) shall at any time receive any payment of all or part of the
Loans owing to it, or interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender’s Loans owing to it, or interest
thereon, such benefited Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender’s Loans owing
to it, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the
26
Lenders;
provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefited Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without
interest. Each Borrower agrees that any Lender so purchasing a
participation from a Lender pursuant to this Section 8.3 may,
to the fullest extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Person were the direct creditor of the Borrowers in the amount of such
participation.
8.4. Survival. All covenants,
agreements, representations and warranties made herein shall survive the making
by the Lenders of the Loans and the execution and delivery to the Lenders of
this Agreement and shall continue in full force and effect so long as any of
Obligations remain outstanding or any Lender has any Loan hereunder or any
Borrower has continuing obligations hereunder unless otherwise provided
herein. Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
permitted assigns of such party and all covenants, provisions and agreements by
or on behalf of any Borrower which are contained in the Related Documents shall
inure to the benefit of the successors and permitted assigns of the Lenders or
any of them.
8.5. Expenses. Each Borrower
agree to pay on demand (subject, in the case of preparation, execution, delivery
and administration costs, to the Fee Letter), all reasonable costs and expenses
of the Facility Agent and the Joint Lead Arrangers in connection with the
preparation, execution, delivery, administration, modification, and amendment of
this Agreement, the other Related Documents, subject to any cap that may have
otherwise been agreed, and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and expenses of counsel for
the Facility Agent (excluding the cost of internal counsel) with respect thereto
and with respect to advising the Facility Agent as to its rights and
responsibilities under the Related Documents. Each Borrower further
agree to pay on demand all costs and expenses of the Facility Agent and the
Lenders, if any (including, without limitation, reasonable external attorneys’
fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings, or otherwise) of the Related Documents and the
other documents to be delivered hereunder. Notwithstanding anything
to the contrary in this Section 8.5, the Borrowers shall only be obligated
to pay the fees and expenses of one counsel in any jurisdiction on behalf of the
Facility Agent, the Joint Lead Arrangers and the Lenders.
8.6. Amendments and
Waivers. Neither this Agreement, any other Related Document,
nor any terms hereof or thereof may be amended, supplemented or modified except
in accordance with the provisions of this Section 8.6. The
Required Lenders and each ACS Group Member to the relevant Related Document may,
or, with the written consent of the Required Lenders, the Facility Agent and
each ACS Group Member to the relevant Related Document may, from time to time,
(a) enter into written amendments, supplements or modifications hereto and
to the other Related Documents for the purpose of adding any provisions to this
Agreement or the other Related Documents or changing in any manner the rights of
the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on
such terms and conditions as the Required Lenders or the Facility Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Related Documents or any Default or Event of Default and
its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall
(i) forgive the principal amount or
27
extend
the final scheduled date of maturity of any Loan, reduce the stated rate of any
interest or fee payable hereunder or under any other Related Document (except
that any amendment or modification of defined terms used in the financial
covenants in any Intercreditor Agreement shall not constitute a reduction in the
rate of interest or fees for purposes of this clause (i)) or extend the
scheduled date of any payment thereof, or increase the amount or extend the
expiration date of any Lender’s Commitment, in each case without the written
consent of each Lender directly affected thereby; (ii) eliminate or reduce
the voting rights of any Lender under this Section 8.6 without the written
consent of such Lender; (iii) reduce any percentage specified in the
definition of Required Lenders, consent to the assignment or transfer by any
Borrower of any of their respective rights and obligations under this Agreement
and the other Related Documents, release all or substantially all of the
Collateral, in the case of clauses (i) through (iii) without the
written consent of all Lenders; or (iv) amend, modify or waive any
provision of Article VII without the written consent of the Facility
Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the ACS Group Members, the Lenders, the Facility Agent and all future
holders of the Loans. In the case of any waiver, the ACS Group
Members, the Lenders and the Facility Agent shall be restored to their former
position and rights hereunder and under the other Related Documents, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon;
No
notice to or demand on any Borrower in any case shall entitle such Borrower or
any other Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No
delay or omission on any Lender’s or the Facility Agent’s part in exercising any
right, remedy or option shall operate as a waiver of such or any other right,
remedy or option or of any Default or Event of Default.
8.7. Counterparts. This
Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such fully-executed counterpart.
8.8. Return of Funds. If after
receipt of any payment of all or any part of the Obligations, any Lender is for
any reason compelled to surrender such payment to any Person because such
payment is determined to be void or voidable as a preference, impermissible
setoff, a diversion of trust funds or for any other reason, this Agreement shall
continue in full force and each Borrower shall be liable to, and shall indemnify
and hold the Facility Agent or such Lender harmless for, the amount of such
payment surrendered until the Facility Agent or such Lender shall have been
finally and irrevocably paid in full. The provisions of the foregoing
sentence shall be and remain effective notwithstanding any contrary action which
may have been taken by the Facility Agent or the Lenders in reliance upon such
payment, and any such contrary action so taken shall be without prejudice to the
Facility Agent or the Lenders’ rights under this Agreement and shall be deemed
to have been conditioned upon such payment having become final and
irrevocable.
28
8.9. Indemnification; Limitation of
Liability.
(a) Each
Borrower agrees to indemnify and hold harmless the Facility Agent, Collateral
Agent (which term for purposes of this Section 8.9
includes the “Mortgagee”) under each Security Agreement), the Joint Lead
Arrangers and each Lender and each of their Affiliates and their respective
officers, directors, employees, Facility Agents, and advisors (each, an “ | EXCERPTS ON THIS PAGE:
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