Common use of Unsecured Indebtedness Clause in Contracts

Unsecured Indebtedness. The Borrower shall not, and shall not permit any Subsidiary of the Borrower to, create, assume, incur or otherwise become or remain obligated in respect of, or permit to be outstanding, or suffer to exist any Unsecured Indebtedness, except: (a) Indebtedness under the Loan Documents; (b) Hedging obligations under Hedge Agreements entered into with any Person that is a Lender or an Affiliate of a Lender at the time of entering into such Hedge Agreement; (c) Unsecured Indebtedness existing on the Agreement Date which is described on Schedule 6 hereto, including renewals, replacements and refinancings (but no increases) thereof; (d) Unsecured Indebtedness in respect of endorsement of negotiable instruments in the ordinary course of business; (e) Unsecured Indebtedness owing to any Obligor by the Borrower or any of its Subsidiaries, which Indebtedness (i) is evidenced by an entry on the financial records of the Borrower and any such Subsidiary and (ii) if owed by an Obligor, is subordinated to the Obligations in a manner satisfactory to the Determining Lenders, and which will permit payments to be made on such Indebtedness provided that no Default or Event of Default shall exist before such payment or after giving effect thereto;

Unsecured Indebtedness. The Parent and the Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary of the Borrower to, create, assumeincur, incur or otherwise become or remain obligated in respect of, or permit to be outstanding, assume or suffer to exist any Unsecured Indebtedness, exceptexcept for the following: (ai) Indebtedness under the Loan DocumentsObligations; (bii) Hedging obligations under Hedge Agreements entered into with any Person intercompany Unsecured Indebtedness among (i) the Parent and the Borrower and (ii) the Borrower and its Wholly Owned Subsidiaries provided that such Indebtedness is a Lender or an Affiliate permitted by the terms of a Lender at the time of entering into such Hedge AgreementSection 10.3. and Section 10.5.; (ciii) Guarantees incurred by the Borrower or any Guarantor in respect of Unsecured Indebtedness of the Borrower, the Parent or any other Guarantor that is otherwise permitted by this subsection (f); (iv) Unsecured Indebtedness existing on of the Agreement Date which is described on Schedule 6 heretoParent, including renewals, replacements and refinancings (but no increases) thereof; (d) Unsecured Indebtedness the Borrower or any other Subsidiary in respect of endorsement of negotiable instruments (x) overdraft facilities, employee and corporate credit card programs, netting services, automatic clearinghouse arrangements and other cash management and similar arrangements, in each case incurred or arising in the ordinary course of business;; and (y) obligations to pay insurance premiums, and take or pay obligations contained in supply agreements, in each case incurred or arising in the ordinary course of business (including in respect of construction or restoration activities); provided, however, that the aggregate outstanding amount of all such obligations and liabilities under this subsection (iv) shall not exceed $2,000,000 at any time; or (ev) Unsecured Indebtedness owing to any Obligor by Obligations of the Borrower Parent, the Borrower, or any other Subsidiary to acquire real estate or any other assets under purchase agreements, construction contracts, renovation contracts or any other similar agreement, in each case, entered into in the ordinary course of its Subsidiaries, which Indebtedness (i) is evidenced by an entry on the financial records of the Borrower and any such Subsidiary and (ii) if owed by an Obligor, is subordinated to the Obligations in a manner satisfactory to the Determining Lenders, and which will permit payments to be made on such Indebtedness provided that no Default or Event of Default shall exist before such payment or after giving effect thereto;business.

Unsecured Indebtedness. The Borrower shall not, and shall not permit any Subsidiary the sum of the Borrower to, create, assume, incur or otherwise become or remain obligated in respect of, or permit to be outstanding, or suffer to exist any Unsecured Indebtedness, except: (a) Borrower’s Unsecured Indebtedness under (excluding the Loan Documents; Unsecured Indebtedness evidenced by the Unsecured Credit Agreement) plus (b) Hedging obligations under Hedge Agreements entered into the Unsecured Indebtedness of Borrower’s Affiliates, to at any time exceed eight percent (8%) of Gross Asset Value. For the purposes of this Section 9.1(h) and Section 9.1(j) below, Indebtedness of Borrower and Borrower’s Affiliates as to which the Borrower or such Affiliate has granted to the holder thereof a “pocket mortgage” shall be considered Secured Indebtedness; provided however, that such Indebtedness shall be considered Unsecured Indebtedness from and after the occurrence of any of the following (i) the date any event described in items (i)-(viii) of Section 10.1(e) or Section items (i) or (ii) of 10.1(f) occurs with respect to Borrower or such Affiliate, (ii) any Person restriction (other than the occurrence of an event of default and the failure by the guarantor of said indebtedness to purchase the loan secured by the pocket mortgage within the time, if any, permitted for such purchase by the terms of the pocket mortgage prior to the holder thereof having the right to exercise its remedies) is placed on the recordation of such pocket mortgage, or (iii) Borrower or such Affiliate takes any action seeking to prevent or delay, or which would have the effect of preventing or delaying, the recordation of such pocket mortgage; provided further, however, that upon effective recordation of any such pocket mortgage, the Indebtedness secured thereby shall be considered Secured Indebtedness and not Unsecured Indebtedness. For purposes of this Section, the term “pocket mortgage” shall mean a mortgage, deed of trust, deed to secure debt or other similar security instrument given to a lender for the purpose of securing a construction loan for property located in any state with mortgage taxes, which (x) is a Lender or an Affiliate of a Lender not recorded in the public records at the time of entering into such Hedge Agreement; (c) Unsecured Indebtedness existing on the Agreement Date which closing, but is described on Schedule 6 hereto, including renewals, replacements and refinancings (but no increases) thereof; (d) Unsecured Indebtedness in respect of endorsement of negotiable instruments delivered to an escrow agent with instructions that it may be recorded in the ordinary course public records or such escrow agent upon the occurrence of business; (e) Unsecured Indebtedness owing an event of default thereunder, under any loan agreement executed in connection therewith or under any note or notes or other obligations secured by such mortgage, deed of trust, deed to any Obligor secure debt or other such security instrument, and guarantor’s failure to purchase the loan evidenced or secured thereby within the time, if any, permitted for such purchase by the Borrower or any terms of such ws3C1.tmp pocket mortgage prior to the holder thereof having the right to exercise its Subsidiariesremedies, which Indebtedness (i) is evidenced by an entry on the financial records of the Borrower and any such Subsidiary and (iiy) if owed by an Obligor, is subordinated to the Obligations in after such recording will constitute a manner satisfactory to the Determining Lenders, valid and which will permit payments to be made enforceable lien on such Indebtedness provided that no Default or Event of Default shall exist before such payment or after giving effect thereto;real property.

Unsecured Indebtedness. The Credit Agreement is hereby amended by deleting Section 9.1(h) therefrom, which did read: "Borrower shall not, and shall not permit any Subsidiary the sum of the Borrower to, create, assume, incur or otherwise become or remain obligated in respect of, or permit to be outstanding, or suffer to exist any Unsecured Indebtedness, except: (a) Borrower's Unsecured Indebtedness under (excluding the Loan Documents; Loan), plus (b) Hedging obligations under Hedge Agreements entered into the Unsecured Indebtedness of Borrower's Affiliates, to exceed $100,000,000.00 at any time." and inserting the following in lieu thereof: a) Borrower's Unsecured Indebtedness (excluding the Loan) plus (b) the Unsecured Indebtedness of Borrower's Affiliates to exceed $100,000,000 at any time. For the purposes of this subsection (h), Indebtedness of Borrower and Borrower's Affiliates as to which the Borrower or such Affiliate has granted to the holder thereof a "pocket mortgage" shall not be considered Unsecured Indebtedness; provided however, that such Indebtedness shall be considered Unsecured Indebtedness from and after the occurrence of any of the following (i) the date any event described in items (i)-(viii) of Section 10.1(e) or Section items (i) or (ii) of 10.1(f) occurs with respect to Borrower or such Affiliate, (ii) any Person that restriction (other than the occurrence of an event of default and the failure by the guarantor of said indebtedness to purchase the loan secured by the pocket mortgage within the time, if any, permitted for such purchase by the terms of the pocket mortgage prior to the holder thereof having the right to exercise its remedies) is placed on the recordation of such pocket mortgage, or (iii) Borrower or such Affiliate takes any action seeking to prevent or delay, or which would have the effect of preventing or delaying, the recordation of such pocket mortgage. For purposes of this Section, the term "pocket mortgage" shall mean a Lender mortgage, deed of trust, deed to secure debt or an Affiliate other similar security instrument given to a lender for the purpose of securing a Lender construction loan for property located in any state with mortgage taxes, which (x) is not recorded in the public records at the time of entering into such Hedge Agreement; (c) Unsecured Indebtedness existing on the Agreement Date which closing, but is described on Schedule 6 hereto, including renewals, replacements and refinancings (but no increases) thereof; (d) Unsecured Indebtedness in respect of endorsement of negotiable instruments delivered to an escrow agent with instructions that it may be recorded in the ordinary course public records or such escrow agent upon the occurrence of business; (e) Unsecured Indebtedness owing an event of default thereunder, under any loan agreement executed in connection therewith or under any note or notes or other obligations secured by such mortgage, deed of trust, deed to any Obligor secure debt or other such security instrument, and guarantor's failure to purchase the loan evidenced or secured thereby within the time, if any, permitted for such purchase by the Borrower or any terms of such pocket mortgage prior to the holder thereof having the right to exercise its Subsidiariesremedies, which Indebtedness (i) is evidenced by an entry on the financial records of the Borrower and any such Subsidiary and (iiy) if owed by an Obligorafter such recording will constitute a valid and enforceable lien on real property; provided further, is subordinated the maximum amount of Indebtedness subject to pocket mortgages which may be excluded from the Obligations in a manner satisfactory to the Determining Lenders, and which will permit payments to be made on such Indebtedness provided that no Default or Event of Default $100,000,000 limitation set forth herein shall exist before such payment or after giving effect thereto;not exceed $200,000,000.00 at any one time."

Unsecured Indebtedness. The Borrower shall not, and shall not permit any Subsidiary the sum of the Borrower to, create, assume, incur or otherwise become or remain obligated in respect of, or permit to be outstanding, or suffer to exist any Unsecured Indebtedness, except: (a) Borrower's Unsecured Indebtedness under (excluding the Loan Documents; Unsecured Indebtedness evidenced by the 2006 Credit Agreement) plus (b) Hedging obligations under Hedge Agreements entered into the Unsecured Indebtedness of Borrower's Affiliates to at any time exceed eight percent (8%) of Gross Asset Value. For the purposes of this Section 9.1(h) and Section 9.1(j) below, Indebtedness of Borrower and Borrower's Affiliates as to which the Borrower or such Affiliate has granted to the holder thereof a "pocket mortgage" shall be considered Secured Indebtedness; provided however, that such Indebtedness shall be considered Unsecured Indebtedness from and after the occurrence of any of the following (i) the date any event described in items (i)-(viii) of Section 10.1(e) or Section items (i) or (ii) of 10.1(f) occurs with respect to Borrower or such Affiliate, (ii) any Person restriction (other than the occurrence of an event of default and the failure by the guarantor of said indebtedness to purchase the loan secured by the pocket mortgage within the time, if any, permitted for such purchase by the terms of the pocket mortgage prior to the holder thereof having the right to exercise its remedies) is placed on the recordation of such pocket mortgage, or (iii) Borrower or such Affiliate takes any action seeking to prevent or delay, or which would have the effect of preventing or delaying, the recordation of such pocket mortgage; provided further, however, that upon effective recordation of any such pocket mortgage, the Indebtedness secured thereby shall be considered Secured Indebtedness and not Unsecured Indebtedness. For purposes of this Section, the term "pocket mortgage" shall mean a mortgage, deed of trust, deed to secure debt or other similar security instrument given to a lender for the purpose of securing a construction loan for property located in any state with mortgage taxes, which (x) is a Lender or an Affiliate of a Lender not recorded in the public records at the time of entering into such Hedge Agreement; (c) Unsecured Indebtedness existing on the Agreement Date which closing, but is described on Schedule 6 hereto, including renewals, replacements and refinancings (but no increases) thereof; (d) Unsecured Indebtedness in respect of endorsement of negotiable instruments delivered to an escrow agent with instructions that it may be recorded in the ordinary course public records or such escrow agent upon the occurrence of business; (e) Unsecured Indebtedness owing an event of default thereunder, under any loan agreement executed in connection therewith or under any note or notes or other obligations secured by such mortgage, deed of trust, deed to any Obligor secure debt or other such security instrument, and guarantor's failure to purchase the loan evidenced or secured thereby within the time, if any, permitted for such purchase by the Borrower or any terms of such pocket mortgage prior to the holder thereof having the right to exercise its Subsidiariesremedies, which Indebtedness (i) is evidenced by an entry on the financial records of the Borrower and any such Subsidiary and (iiy) if owed by an Obligor, is subordinated to the Obligations in after such recording will constitute a manner satisfactory to the Determining Lenders, valid and which will permit payments to be made enforceable lien on such Indebtedness provided that no Default or Event of Default shall exist before such payment or after giving effect thereto;real property.

Unsecured Indebtedness. The Borrower shall not, and shall not permit any Subsidiary the sum of the Borrower to, create, assume, incur or otherwise become or remain obligated in respect of, or permit to be outstanding, or suffer to exist any Unsecured Indebtedness, except: (a) Borrower's Unsecured Indebtedness under the Loan Documents; plus (b) Hedging obligations under Hedge Agreements entered into the Unsecured Indebtedness of Borrower's Affiliates to, at any time prior to the Full Collateralization Date, exceed eight percent (8%) of Gross Asset Value. For the purposes of this Section 9.1(h) and Section 9.1(j) below, Indebtedness of Borrower and Borrower's Affiliates as to which the Borrower or such Affiliate has granted to the holder thereof a "pocket mortgage" shall be considered Secured Indebtedness; provided however, that such Indebtedness shall be considered Unsecured Indebtedness from and after the occurrence of any of the following (i) the date any event described in items (i)-(viii) of Section 11.1(e) or items (i) or (ii) of Section 11.1(f) occurs with respect to Borrower or such Affiliate, (ii) any Person restriction (other than the occurrence of an event of default and the failure by the guarantor of said indebtedness to purchase the loan secured by the pocket mortgage within the time, if any, permitted for such purchase by the terms of the pocket mortgage prior to the holder thereof having the right to exercise its remedies) is placed on the recordation of such pocket mortgage, or (iii) Borrower or such Affiliate takes any action seeking to prevent or delay, or which would have the effect of preventing or delaying, the recordation of such pocket mortgage; provided further, however, that upon effective recordation of any such pocket mortgage, the Indebtedness secured thereby shall be considered Secured Indebtedness and not Unsecured Indebtedness. For purposes of this Section, the term "pocket mortgage" shall mean a mortgage, deed of trust, deed to secure debt or other similar security instrument given to a lender for the purpose of securing a construction loan for property located in any state with mortgage taxes, which (x) is a Lender or an Affiliate of a Lender not recorded in the public records at the time of entering into such Hedge Agreement; (c) Unsecured Indebtedness existing on the Agreement Date which closing, but is described on Schedule 6 hereto, including renewals, replacements and refinancings (but no increases) thereof; (d) Unsecured Indebtedness in respect of endorsement of negotiable instruments delivered to an escrow agent with instructions that it may be recorded in the ordinary course public records or such escrow agent upon the occurrence of business; (e) Unsecured Indebtedness owing an event of default thereunder, under any loan agreement executed in connection therewith or under any note or notes or other obligations secured by such mortgage, deed of trust, deed to any Obligor secure debt or other such security instrument, and guarantor's failure to purchase the loan evidenced or secured thereby within the time, if any, permitted for such purchase by the Borrower or any terms of such pocket mortgage prior to the holder thereof having the right to exercise its Subsidiariesremedies, which Indebtedness (i) is evidenced by an entry on the financial records of the Borrower and any such Subsidiary and (iiy) if owed by an Obligor, is subordinated to the Obligations in after such recording will constitute a manner satisfactory to the Determining Lenders, valid and which will permit payments to be made enforceable lien on such Indebtedness provided that no Default or Event of Default shall exist before such payment or after giving effect thereto;real property.