EXHIBIT 4(qq)
$9,100,000 Credit Agreement between CRIIMI MAE Management, Inc.
and Signet Bank/Virginia
$9,100,000
CREDIT AGREEMENT
DATED AS OF JUNE 30, 1995
BETWEEN
CRIIMI MAE MANAGEMENT, INC.
AND
SIGNET BANK/VIRGINIA
CREDIT AGREEMENT
This CREDIT AGREEMENT (as it may be modified, supplemented or amended from time
to time, this "Agreement") dated as of 11:59 p.m., June 30, 1995 among CRIIMI
MAE MANAGEMENT, INC. (the "Borrower"), and SIGNET BANK/VIRGINIA, a Commonwealth
of Virginia banking corporation (the "Bank").
R E C I T A L S
WHEREAS, C.R.I., Inc. ("CRI"), certain affiliates of CRI and Signet
Bank/Maryland are parties to the Third Amended and Restated Credit and Security
Agreement dated March 27, 1995 (the "CRI Credit Agreement");
WHEREAS, CRI has consummated certain transactions with the Borrower and its
affiliates, all as more fully described in the Proxy Statement of CRIIMI MAE
Inc. dated April 28, 1995 (the "CRIIMI MAE Proxy Statement");
WHEREAS, in connection with such transactions, CRI assigned to CRI
Acquisition, Inc. ("Acquisition") and Acquisition assumed certain Assigned
Obligations, as defined below, of CRI and certain affiliates of CRI arising
under the CRI Credit Agreement;
WHEREAS, Acquisition has merged with and into the Borrower and the Borrower
has assumed the Assigned Obligations as a result of such merger;
WHEREAS, Signet Bank/Maryland, a Maryland banking corporation, assigned to
the Bank the rights of Signet Bank/Maryland with respect to the Assigned
Obligations;
WHEREAS, the Borrower and the Bank wish to restate the terms of the
Assigned Obligations as set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the agreements,
comments and conditions contained herein, and for other good and valuable
consideration, the receipt and efficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
The following terms, as used herein, have the following meanings:
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.4(a).
Affiliate" means any Person (i) which directly or indirectly through one or
more intermediaries controls, or is controlled by, or is under common control
with, the Borrower, (ii) which beneficially owns or holds 5% or more of any
class of the Voting Stock of the Borrower or (iii) 5% or more of the Voting
Stock (or in the case of a Person which is not a corporation, 5% or more of the
equity interest) of which is beneficially owned or held by the Borrower, or any
of its Subsidiaries. The term "control" 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 Stock, by contract
or otherwise.
"Agreement" has the meaning set forth in the initial paragraph hereof.
"Applicable Lending Office" means, with respect to the Bank, (i) in the
case of its Euro-Dollar Loans, its Euro-Dollar Lending Office and (ii) in the
case of its Daily Federal Funds Loans, Term Federal Funds Loans or Prime Rate
Loans, its Domestic Lending Office.
"Assignment Agreement" means the Assignment and Assumption Agreement
effective as of 11:58 P.M. on June 30, 1995 pursuant to which CRI assigned to
Acquisition, and Acquisition assumed, the Assigned Obligations."Assigned
Obligations" shall have the meaning set forth in the Assignment Agreement.
"Bank" means Signet Bank/Virginia, a Virginia banking corporation and its
successors and assigns.
Benefit Arrangement" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" means CRIIMI MAE Management, Inc., a Maryland corporation, and
its successors.
"Borrower Collateral Assignment" means the Collateral Assignment between
the Bank and the Borrower effective as of 11:59 P.M. on June 30, 1995,
substantially in the form of Exhibit C, attached hereto, as such may be amended,
supplemented or modified from time to time.
"Closing Date" means the date this Agreement becomes effective in
accordance with Section 3.1.
"Collateral" means all of the interests in personal property in or upon
which the Bank is granted a security interest or lien pursuant to any of the
Loan Documents.
"Consolidated Stockholders' Equity" of any Person means, at any date, all
amounts that would be included under stockholders' equity on a consolidated
balance sheet of such Person and its Consolidated Subsidiaries proposed in
accordance with GAAP and, including in any event any preferred stock used by
such Person.
"Consolidated Subsidiary" of any Person means, at any date, any Subsidiary
of such Person or other entity, the accounts of which would be Consolidated with
those of such Person in its consolidated financial statements if such statements
were prepared as of such date.
"Continuation Notice" has the meaning set forth in Section 2.3(a).
"CRIIMI Inc. Collateral Assignment" means the Collateral Assignment
effective as of 11:59 P.M. on June 30, 1995, substantially in the form of
Exhibit D, attached hereto, as such may be amended, supplemented or modified
from time to time.
"CRIIMI MAE Collateral Assignment" means the Collateral Assignment between
the Bank and CRIIMI MAE Inc., effective as of 11:59 P.M. on June 30, 1995,
substantially in the form of Exhibit E attached hereto, as such may be amended,
supplemented or modified from time to time.
"Daily Federal Funds Loan" means the Loan during such time that the
interest rate is determined hereunder on the basis of the Daily Federal Funds
Rate pursuant to Article VII.
"Daily Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, 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 on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Signet Bank/Virginia on such day on
such transactions. Any change in the Daily Federal Funds Rate shall become
effective as of and on the date of such change.
"Debt" of any Person means at any date, (i) all obligations of such Person
which in accordance with generally accepted accounting principles in effect from
time to time would be classified on a balance sheet of such Person as
liabilities of such Person including, without limitation, (A) all obligations of
such Person for borrowed money, (B) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (C) all obligations of
such Person to pay the deferred purchase price of property or services, except
trade accounts payable arising in the ordinary course of business, (D) all
obligations of such Person as lessee which are capitalized in accordance with
generally accepted accounting principles, (ii) all Debt of others secured by a
Lien on any asset of such Person, whether or not such Debt is assumed by such
Person, and (iii) all Debt of others Guaranteed by such Person.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in the Commonwealth of Virginia are authorized by
law to close.
"Domestic Lending Office" means the Bank's office located at its address
identified in the signature pages hereof as its Domestic Lending Office or such
other office as such Bank may hereafter designate as its Domestic Lending Office
by notice to the Borrower and the Bank.
"Environmental Laws" means any and all federal, state and local statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions, discharges or releases
of pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes into the environment
including, without limitation, ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants, contaminants,
petroleum or petroleum products, chemicals or industrial, toxic or hazardous
substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Borrower and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Interest Period" means, with respect to each Euro-Dollar Loan,
the period commencing on the date that such Loan is continued and ending one,
two or three months thereafter, as the Borrower may select pursuant to Section
2.3(a) hereof, with any subsequent Euro-Dollar Interest Period commencing on the
last day of the immediately preceding Euro-Dollar Interest Period and ending
one, two or three months thereafter as selected by the Borrower pursuant to
Section 2.3(a) hereof; provided that:
(a) the first Euro-Dollar Interest Period commences hereunder on the
Closing Date and ends on July 31, 1995;
(b) any Euro-Dollar Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such
Euro-Dollar Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(c) any Euro-Dollar Interest Period which begins on the last Euro-Dollar
Business 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
Euro-Dollar Interest Period) shall, subject to clause (d) below, end
on the last Euro-Dollar Business Day of a calendar month; and
(d) any Euro-Dollar Interest Period that begins before the Maturity Date
and would otherwise end after the Maturity Date shall end on the
Maturity Date; and
"Euro-Dollar Lending Office" means, the Bank's office, branch or affiliate
located at its address identified in the signature pages hereto as its Euro-
Dollar Lending Office or such other office, branch or affiliate of the Bank as
it may hereafter designate as its Euro-Dollar Lending Office by notice to the
Borrower.
"Euro-Dollar Loan" means the Loan during such time that the interest rate
is determined hereunder on the basis of the Adjusted London Interbank Offered
Rate.
"Euro-Dollar Margin" has the meaning set forth in Section 2.4(a).
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.4(a).
"Event of Default" has the meaning set forth in Section 6.1.
"Federal Funds Interest Period" means with respect to any Term Federal
Funds Loan, the period commencing on the date such Loan is continued and ending
on the date 30, 60 or 90 days thereafter, as the Borrower may elect in the
applicable Notice of Conversion/Continuation, or on such other date as the
Borrower and the Bank may mutually agree; provided that:
(a) any Federal Funds Interest Period which would otherwise end on a day
which is not a Domestic Business Day shall be extended to the next
succeeding Domestic Business Day; and
(b) any Federal Funds Interest Period which begins before the Maturity
Date and would otherwise end after the Maturity Date shall end on the
Maturity Date.
"Federal Funds Margin" means the Euro-Dollar Margin plus one-half of one
percent (0.50%).
"Fixed Rate Loans" means Euro-Dollar Loans and Term Federal Funds Loans.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt or other obligation of
any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt or other obligation (whether arising by virtue of partnership arrangements,
by agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (ii)
entered into for the purpose of assuring in any other manner the obligee of such
Debt or other obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part), provided that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Guarantor" means CRIIMI MAE Inc.
"Guarantor's 1994 Form 10-K" means the Guarantor's annual report on Form
10-K for the year ended December 31, 1994, as filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934.
"Guaranty Agreement" shall mean the Guaranty Agreement of the Guarantor,
effective as of 11:59 P.M. on June 30, 1995, in the form attached as Exhibit B,
as the same may be modified, supplemented or amended from time to time.
"Interest Period" means a Euro-Dollar Interest Period or Federal Funds
Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"LIBOR Index Rate" has the meaning set forth in Section 2.4(a).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Borrower or any of its Subsidiaries
shall be deemed to own, subject to a Lien, any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
"Loan" means the Assigned Obligations outstanding under the terms of this
Agreement.
"Loan Documents" means this Agreement, the Note, the Guaranty, the Pledge
Agreements and any other agreement, document or instrument required by, referred
to in or delivered or to be delivered in connection herewith or therewith, as
any of them may be modified, supplemented or amended from time to time.
"London Interbank Offered Rate" has the meaning set forth in Section
2.4(a).
"Material Debt" means (i) with respect to the Borrower, consolidated Debt
(other than the Note) of the Borrower, and/or one or more of its Subsidiaries,
arising in one or more related or unrelated transactions, in an aggregate
principal amount exceeding $1,000,000; and (ii) with respect to the Guarantor,
consolidated Debt (other than the Guaranty) of the Guarantor and its
Subsidiaries arising in one or more related or unrelated transactions, in an
aggregate principal amount equal to or exceeding $10,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate Unfunded
Liabilities in excess of $1,000,000.
"Maturity Date" means December 31, 1998.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Note" means the promissory note of the Borrower delivered to the Bank
under the terms of this Agreement, or issued in substitution or replacement
therefor or in addition thereto, substantially in the form of Exhibit A hereto,
evidencing the obligation of the Borrower to repay the Loan, as modified,
supplemented or amended from time to time.
"Notice of Conversion/Continuation" has the meaning set forth in Section
2.3(b).
"Obligations" means (i) the prompt payment in full when due, whether at
stated maturity, by acceleration or otherwise (including the payment of amounts
that would become due but for the automatic stay under Section 362(a) of the
Bankruptcy Code or any similar or successor law), of principal, interest
(including interest that, but for the filing of a petition in bankruptcy with
respect to the Borrower, the Guarantor, or any Affiliate, would accrue on such
obligation), premiums, fees and other amounts owing by the Borrower, the
Guarantor, any Pledgor, or any Affiliate or any other person (each, an
"Obligor") under the Loan Documents relating to the Loan, and the full and
prompt payment and performance when due, whether at stated maturity, by
acceleration or otherwise (including the payment of amounts that would become
due but for the automatic stay under Section 362(a) of the Bankruptcy Code or
any similar or successor law), of all other obligations and indebtedness,
including indemnities, fees and interest (including interest that, but for the
filing of a petition in bankruptcy with respect to an Obligor (as defined below)
would accrue on such obligation), of any Obligor, now existing or hereafter
incurred under or arising out of or in connection with any Loan Document,
(ii) the due performance and compliance with the terms of the Loan Documents by
the Obligors, (iii) any and all sums advanced by the Bank in order to protect,
preserve or enforce the Collateral and the Bank's security interests in or other
claims relating to the Collateral, or any claim relating to or arising under any
of the Loan Documents, or to pay any amount payable by any one or more of the
Obligors under any Loan Document, or any expenses incurred by the Bank in
performing any obligation of any one or more of the Obligors hereunder or
thereunder that such person has failed to perform, (iv) all reasonable costs and
expenses incurred or paid by the Bank as permitted hereunder or under the other
Loan Documents, (v) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations or liabilities of any one or more
of the Obligors arising out of or in connection with the Loan Documents, the
reasonable expenses of any such proceeding, (vi) the reasonable expenses of
retaking, holding, preparing for sale or lease, selling or otherwise disposing
of or realizing on any Collateral, or of any exercise by the Bank of its rights
hereunder or under any of the other Loan Documents, (vii) all extensions,
renewals, replacements, refundings or modifications of any obligations
(including any of the foregoing) of any one or more of the Obligors, whether now
or hereafter incurred or existing under, arising out of or in connection with
the Loan Documents, (viii) full and prompt payment and performance of any award
of damages to or other judgment in favor of the Bank relating to any of the
foregoing or otherwise arising out of or relating to the Collateral or the Loan
Documents, (ix) full and prompt payment and performance of any obligations of
any one or more of the Obligors relating to any settlement with the Bank of any
claim or allegation relating to any of the foregoing, and (x) all reasonable
attorneys' fees, expenses and costs (including court costs) incurred by the Bank
relating to any of the foregoing, including reasonable fees, expenses and costs
arising from the preparation of a petition or application for the recovery of
attorneys' fees, expenses and costs.
"Participant" has the meaning set forth in Section 8.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an association,
a trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Pledge Agreements" means the CRIIMI Inc. Collateral Assignment, the CRIIMI
MAE Collateral Assignment, the Borrower Collateral Assignment, the Stock
Pledge Agreement, and the Subadvisor's Security Agreement.
"Pledgors" means the Guarantor, the Subadvisor and CRIIMI, Inc.
"Prime Rate" means the rate of interest publicly announced by the Bank (or
its successor) in Richmond, Virginia from time to time as its Prime Rate, with
any change in such Prime Rate to become effective as of and on the date of such
change; it being understood that the Bank may charge rates of interest on other
commercial loans that are at, above or below the Prime Rate.
"Prime Rate Loan" means the Loan during such time that the interest rate is
determined hereunder on the basis of the Prime Rate pursuant to Article VII.
"Real Estate Investment Trust" means a real estate investment trust as
defined in Section 856 to 860 of the Internal Revenue Code.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Restricted Payment" has the meaning set forth in Section 5.7.
"Stock Pledge Agreement" means the Stock Pledge Agreement between the bANK
and CRIIMI MAE Inc. effective as of 11:59 P.M. on jUNE 30, 1995, substantially
in the form of Exhibit F attached hereto, as such may be amended, supplemented
or modified from time to time.
"Subadvisor" means CRIIMI MAE Services Limited Partnership, a Maryland
Limited Partnership.
"Subadvisor's Security Agreement" means the Security Agreement effective as
of 11:59 P.M. on June 30, 1995, between CRIIMI Mae Services Limited Partnership
and the Bank, substantially in the form attached hereto as Exhibit G, as such
may be amended, supplemented or modified from time to time.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof.
"Term Federal Funds Loan" means the Loan during such time that the interest
rate is determined hereunder on the basis of the Term Federal Funds Rate
pursuant to Article VII.
"Term Federal Funds Rate" has the meaning set forth in Section 2.4(c).
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the present value of all benefits under such Plan
exceeds (ii) the fair market value of all Plan assets allocable to such benefits
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"Voting Stock" means securities of any class or classes, the holders of
which are ordinarily, in the absence of contingencies, entitled to elect a
majority of the corporate directors (or Persons performing similar functions).
SECTION 1.2 Rules of Construction.
(a) Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders. Unless the
context shall otherwise indicate, words importing the singular number
shall include the plural and vice versa.
(b) Reference to a section number, such as this Section 1.2, shall mean
and include all provisions within that section of this Agreement,
unless a particular subsection, paragraph or subparagraph is
specified.
(c) Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations hereunder shall be
made, and all financial statements required to be delivered hereunder
shall be prepared in accordance with generally accepted accounting
principles as in effect from time to time, except as otherwise
specified herein, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants) with
the most recent audited consolidated financial statements of the
Borrower and its Consolidated Subsidiaries delivered to the Bank.
ARTICLE II
THE CREDITS
SECTION 2.1 The Loan.
(a) From and after the Closing Date, the Assigned Obligations, in the
aggregate principal amounts of Nine Million One Hundred Thousand
Dollars ($9,100,000), shall be deemed to be outstanding and shall
constitute the Loan hereunder.
(b) The Loan shall be a Euro-Dollar Loan, which may convert to a Loan
bearing interest at the Daily Federal Funds Rate, the Term Federal
Funds Rate or the Prime Rate as described herein.
SECTION 2.2 The Note.
The Loan will be evidenced by the Note. The aggregate outstanding
principal amount of the Loan shall be payable in fourteen consecutive quarterly
installments as follows: a total of Six Hundred Fifty Thousand Dollars
($650,000) payable on the first Domestic Business Day in October, 1995, and a
like sum on the first Domestic Business Day of January, April, July and October
thereafter until the Loan is fully paid. Notwithstanding any other provision of
this Section 2.2, (i) for so long as the Loan is outstanding as a Daily Federal
Funds Loan, Term Federal Funds Loan or Prime Rate Loan pursuant to Article VII,
such principal payments shall be payable on the first Domestic Business Day of
each January, April, July and October occurring after the date of the conversion
to a Daily Federal Funds Loan, Term Federal Funds Loan or Prime Rate Loan and
(ii) the final payment of both principal and interest of the Loan, if not sooner
paid, shall be due on the Maturity Date.
SECTION 2.3 Continuation of Fixed Rate Loans.
(a) Provided that no Event of Default has occurred and is continuing, and
except as provided in Article VII, the Loan shall be continued as a Euro-Dollar
Loan from any current Interest Period into each subsequent Interest Period,
provided that prior to the termination of each Euro-Dollar Interest Period with
respect to each Euro-Dollar Loan, Borrower shall give written notice (a
"Continuation Notice") to the Bank of the Euro-Dollar Interest Period which
shall be applicable to such portion of the Loan which remains outstanding upon
the expiration of such Euro-Dollar Interest Period. Such Continuation Notice
shall be given to the Bank at least three Euro-Dollar Business Days prior to the
termination of such Euro-Dollar Interest Period. Each Continuation Notice shall
be irrevocable and effective upon notification thereof to the Bank. If the
required Continuation Notice shall not have been timely received by the Bank in
accordance with this Section 2.3(a) prior to the expiration of the then relevant
Euro-Dollar Interest Period in effect when such notice was required to be given,
Borrower shall be deemed to have selected a Euro-Dollar Interest Period of three
months to be applicable to such portion of the Loan upon expiration of such
Euro-Dollar Interest Period and to have given the Bank notice of such selection.
(b) Provided that no Event of Default has occurred and is continuing,
for so long as the Loan is outstanding as a Term Federal Funds Loan or Daily
Federal Funds Loan pursuant to Article VII, the Borrower shall have the
right, subject to the terms and conditions of this Agreement, to continue in
whole the Term Federal Funds Loan from any current Federal Funds
Interest Period into a subsequent Federal Funds Interest Period, or to
convert such Loan to a Daily Federal Funds Loan or Term Federal Funds Loan, as
the case may be, provided that the Borrower shall give the Bank notice of the
continuation of any such Loan as hereinafter provided. The Borrower shall
deliver a Notice of Conversion/Continuation in the form of Exhibit
I hereto (a "Notice of Conversion/Continuation") to the Bank no later
than 11:00 A.M. (Richmond, Virginia) at least one Domestic Business Day in
advance of the date of the proposed date of conversion or continuation in
the case of a conversion to a Daily Federal Funds Loan and at least three
Domestic Business Days in advance of the date of the proposed conversion or
continuation in the case of the conversion to or continuation of, a
Term Federal Funds Loan. A Notice of Conversion/Continuation shall
specify (i) the date of the proposed conversion or continuation (which shall
be a Domestic Business Day), (ii) the nature of the proposed conversion or
continuation, (iii) in the case of a conversion to or continuation of a
Term Federal Funds Loan, the Interest Period applicable thereto, and
(iv) in the case of conversion to or continuation of a Term Federal
Funds Loan, that no Event of Default has occurred and is continuing. In lieu of
delivery of the above-described Notice of Conversion/Continuation, the Borrower
may give the Bank telephonic notice by the required time of any proposed
conversion or continuation under this Section 2.3(b); provided that such notice
shall be promptly confirmed in writing by delivery of a Notice of
Conversion/Continuation to the Bank on or before the proposed date of conversion
or continuation. If the Borrower fails to timely deliver a Notice of
Conversion/Continuation of conversion to, or continuation of, a Term Federal
Funds Loan, the Borrower shall be deemed to have delivered to the Bank a Notice
of Conversion/Continuation to convert such Term Federal Funds Loan to a Daily
Federal Funds Loan. The Bank shall not incur any liability to Borrower in
acting upon any telephonic notice referred to herein that the Bank believes in
good faith to have been given by a duly authorized officer or other person
authorized to act on behalf of Borrower or for otherwise acting in good faith
under this Section 2.3(b) and upon conversion or continuation in accordance with
this Agreement pursuant to any such telephonic notice, Borrower shall have
effected a conversion or continuation as the case may be hereunder. A Notice of
Conversion/Continuation for conversion to, or continuation of, a Term Federal
Funds Loan (or telephonic notice in lieu thereof) shall be irrevocable and the
Borrower shall be bound to convert or continue in accordance therewith.
(c) In the event that an Event of Default has occurred and is continuing
at the time any Loan is to be continued pursuant to this Section 2.3 hereunder,
any Fixed Rate Loan shall be automatically converted into a Prime Rate Loan,
subject to Section 6.1 hereof.
SECTION 2.4 Interest Rate.
(a) Unless an Event of Default shall have occurred and be continuing, any
Euro-Dollar Loan shall bear interest on the outstanding principal amount
thereof, for the Euro-Dollar Interest Period applicable thereto, at a rate per
annum equal to the sum of the Euro-Dollar Margin plus the applicable Adjusted
London Interbank Offered Rate. Such interest shall be payable for each Euro-
Dollar Interest Period on the last day thereof.
"Euro-Dollar Margin" means 1.25 percent (1.25%).
The "Adjusted London Interbank Offered Rate" applicable to any Euro-Dollar
Interest Period means a rate per annum equal to (a) the LIBOR Index Rate, if
such rate can be determined and (b) if the LIBOR Index Rate cannot be
determined, the quotient obtained (rounded upward, if necessary, to the next
higher 1/16 of 1%) by dividing (i) the applicable London Interbank Offered Rate
by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
The "LIBOR Index Rate" applicable to any Euro-Dollar Interest Period means a
rate equal to the arithmetic average of the rates of interest per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) for deposits in U.S. dollars
for a period equal to such Euro-Dollar Interest Period which appear on the
display designated as Telerate Page 3750 on the Dow Xxxxx Telerate Service (or
such other page as may replace Telerate Page 3750 on that service for the
purpose of displaying London interbank offered rates of major banks) as of 11:00
A.M., London, England time, two (2) Euro-Dollar Business Days prior to the first
day of such Euro-Dollar Interest Period, provided, however, that the LIBOR Index
Rate shall not be calculated if fewer than two such offered rates appear on such
Telerate Page 3750.
The "London Interbank Offered Rate" applicable to any Euro-Dollar Interest
Period means the rate per annum at which deposits in dollars are offered to the
Euro-Dollar Lending Office of the Bank in the London Interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Euro-Dollar Interest Period in an amount approximately equal
to the principal amount of the Euro-Dollar Loan to which such Euro-Dollar
Interest Period is to apply and for a period of time comparable to such Euro-
Dollar Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage (expressed as
a decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which includes loans by a non-
United States office of any Bank to United States residents). The Adjusted
London Interbank Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve Percentage.
(b) Unless an Event of Default shall have occurred and be continuing, any
Daily Federal Funds Loan shall bear interest on the outstanding principal amount
thereof, from the date such Loan is converted into a Daily Federal Funds Loan
until paid in full, at a rate per annum equal to the sum of the Federal Funds
Margin plus the Daily Federal Funds Rate for such day. Such interest shall be
payable on the first Domestic Business Day of each January, April, July and
October and on each date on which such Daily Federal Funds Loan is converted to
a Term Federal Funds Loan or a Euro-Dollar Loan.
(c) Unless an Event of Default shall have occurred and be continuing, each
Term Federal Funds Loan shall bear interest on the outstanding principal amount
thereof, for the Federal Funds Interest Period applicable thereto, at a rate per
annum equal to the sum of the Federal Funds Margin plus the applicable Term
Federal Funds Rate. Such interest shall be payable for each Federal Funds
Interest Period on the last day thereof.
The "Term Federal Funds Rate" applicable to any Federal Funds Interest Period
means a rate per annum as determined by the Bank (rounded upwards, if necessary,
to the nearest 1/100 of 1%) at which term Federal funds would be offered to the
Bank at 10:00 A.M. (Richmond, Virginia time) on the first day of such Federal
Funds Interest Period in the interbank market for a period equal to such Federal
Funds Interest Period and in an amount equal to the principal amount of the
Federal Funds Loans scheduled to be outstanding during such Federal Funds
Interest Period.
(d) Unless an Event of Default shall have occurred and be continuing, each
Prime Rate Loan shall bear interest on the outstanding principal amount thereof,
from the date such Loan is converted into a Prime Rate Loan until paid in full,
at a rate per annum equal to the Prime Rate. Such interest shall be payable on
the first Domestic Business Day of each January, April, July and October.
(e) During the continuance of any Event of Default, principal of and, to
the extent permitted by law, overdue interest on any Euro-Dollar Loan shall bear
interest, payable on demand, for each day from and after the occurrence of such
Event of Default to but excluding the date of actual payment, at a rate per
annum equal to the sum of 2% plus the higher of (i) the sum of the Euro-Dollar
Margin plus the Adjusted London Interbank Offered Rate applicable to such Loan
and (ii) the Prime Rate for such day. During the continuance of any Event of
Default, principal of and, to the extent permitted by law, overdue interest on
any Term Federal Funds Loan shall bear interest, payable on demand, for each day
from and after the occurrence of such Event of Default to but excluding the date
of actual payment, at a rate per annum equal to the sum of 2% plus the higher of
(i) the sum of the Federal Funds Margin plus the Term Federal Funds Rate
applicable to such Loan and (ii) the Prime Rate for such day. During the
continuance of any Event of Default any Daily Federal Funds Loan shall
automatically be converted to a Prime Rate Loan. During the continuance of any
Event of Default for each day from and after the occurrence of such Event of
Default to but excluding the date of actual payment, principal of any Prime Rate
Loan shall bear interest, payable on demand, until paid at a rate per annum
equal to the sum of 2% plus the Prime Rate.
(f) The Bank shall determine each interest rate applicable to the Loan
hereunder. The Bank shall give prompt notice to the Borrower of each rate of
interest so determined, and its determination thereof shall be conclusive in the
absence of manifest error.
SECTION 2.5 Facility Fees.
The Borrower shall pay a facility fee to the Bank in the amount of $22,750,
to be paid on the Closing Date.
SECTION 2.6 Prepayments.
The Borrower may, upon at least three Domestic Business Days' notice to the
Bank (which notice shall be irrevocable), prepay the Loan at any time in amounts
aggregating $500,000 or any larger multiple of $500,000, by paying the principal
amount to be prepaid. Each such optional prepayment shall be applied to the
installments due on the loans in the direct order of their maturities.
SECTION 2.7 General Provisions as to Payments.
The Borrower shall make each payment of principal of, and interest on, the
Loan and of fees hereunder, not later than 11:00 A.M. (Richmond, Virginia time)
on the date when due, to the Bank at its Applicable Lending Office, in Federal
or other funds immediately available at such Applicable Lending Office.
Whenever any payment of principal of, or interest on, any Daily Federal Funds
Loans, Term Federal Funds Loans or Prime Rate Loans or of fees shall be due on a
day which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any payment of
principal of, or interest on, any Euro-Dollar Loan shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case the date for payment
thereof shall be the next preceding Euro-Dollar Business Day. If the date for
any payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time. All such payments shall be
made without setoff or counterclaim and without reduction for, and free from,
any and all present or future taxes, levies, imposts, duties, fees, charges,
deductions, withholdings, restrictions or conditions of any nature imposed by
any government or political subdivision or taxing authority thereof (but
excluding any taxes imposed on or measured by the overall net income of the
Bank).
SECTION 2.8 Funding Losses.
If (i) the Borrower makes any payment of principal with respect to any
Fixed Rate Loan (pursuant to Section 2.6, Article VI or VII or otherwise) on any
day other than the last day of the Interest Period applicable thereto or, (ii)
the Bank, upon the request of the Borrower, agrees not to continue or convert
the Loan in accordance with a Notice of Conversion/Continuation delivered to the
Bank pursuant to Section 2.3(b), the Borrower shall reimburse the Bank within 15
days after demand for any resulting loss or expense incurred by it (or by a
Participant in the Loan so paid or not borrowed or continued), including
(without limitation) any loss incurred in obtaining, liquidating or employing
deposits from third parties for the period after any such payment or failure to
borrow or continue, provided that the Bank shall have delivered to the Borrower
a certificate as to the amount of such loss or expense, which certificate shall
be conclusive in the absence of manifest error. The Bank will act in good faith
and in a commercially reasonable manner to mitigate any such loss or expense.
Notwithstanding any provision to the contrary contained herein, the Borrower
shall not be required to reimburse the Bank for any resulting loss or expense
incurred pursuant to this Section 2.9 for (i) regularly scheduled principal
payments made pursuant to Section 2.2 hereof that are made on the first Domestic
Business Day of each October, January, April and July and (ii) optional
prepayments made pursuant to Section 2.6 hereof that are made on the first
Domestic Business Day of each October, January, April and July.
SECTION 2.9 Computation of Interest and Fees.
All interest and fees shall be computed on the basis of a year of 360 days
and paid for the actual number of days elapsed (including the first day, but
excluding the last day).
ARTICLE III
CONDITIONS
SECTION 3.1 Effectiveness.
This Agreement shall become effective as of 11:59 P.M. on June 30, 1995,
provided that each of the following conditions shall have been satisfied (or
waived in accordance with Section 8.5):
(a) receipt by the Bank of counterparts hereof signed by each of the
parties hereto (or, in the case of any party as to which an executed counterpart
shall not have been received, receipt by the Bank in form satisfactory to it of
telegraphic, telex or other written confirmation from such party of execution of
a counterpart hereof by such party);
(b) receipt by the Bank of the fee set forth in Section 2.5 hereof;
(c) the fact that the representations and warranties of the Borrower
contained in this Agreement and the other Loan Documents shall be true, correct
and complete;
(d) receipt by the Bank of the duly executed Note dated as of the Closing
Date;
(e) receipt by the Bank of the duly executed CRIIMI Inc. Collateral
Assignment in form and substance satisfactory to the Bank covering all of the
"Collateral" referred to therein and which shall be in full force and effect,
together with:
(i) proper financing statements (Forms UCC-1 or the appropriate
equivalent) or amendments to previously filed financing
statements for filing to perfect the security interest purported
to be created by the CRIIMI INC. COLLATERAL assignment, Inc.;
(ii) evidence that all other actions necessary or, in the opinion of
the Bank, desirable, to perfect and protect the Lien created by
the CRIIMI Inc. COllateral assignment, Inc. have been taken;
(f) receipt by the Bank of the duly executed Stock Pledge Agreement in
form and substance satisfactory to the Bank covering all of the "Collateral"
referred to therein and which shall be in full force and effect, together with:
(i) proper financing statements (Forms UCC-1 or the appropriate
equivalent) or amendments to previously filed financing
statements for filing to perfect the security interest purported
to be created by the Stock Pledge Agreement;
(ii) evidence that all other actions necessary or, in the opinion of
the Bank, desirable, to perfect and protect the Lien created by
the Stock Pledge Agreement have been taken;
(g) receipt by the Bank of the duly executed CRIIMI MAE Collateral
Assignment in form and substance satisfactory to the Bank covering all of the
"Collateral" referred to therein and which shall be in full force and effect,
together with:
(i) proper financing statements (Forms UCC-1 or the appropriate
equivalent) or amendments to previously filed financing
statements for filing to perfect the security interest purported
to be created by the CRIIMI MAE COLLATERAL assignment;
(ii) evidence that all other actions necessary or, in the opinion of
the Bank, desirable, to perfect and protect the Lien created by
the CRIIMI MAE Collateral assignment have been taken;
(h) receipt by the Bank of the duly executed Borrower Collateral
Assignment in form and substance satisfactory to the Bank covering all of the
"Collateral" referred to therein and which shall be in full force and effect,
together with:
(i) proper financing statements (Forms UCC-1 or the appropriate
equivalent) or amendments to previously filed financing
statements for filing to perfect the security interest purported
to be created by the Borrower COLLATERAL assignment;
(ii) evidence that all other actions necessary or, in the opinion of
the Bank, desirable, to perfect and protect the Lien created by
the Borrower Collateral assignment have been taken;
(i) receipt by the Bank of the duly executed SUbadvisor's Security
Agreement in form and substance satisfactory to the Bank covering all of the
"Collateral" referred to therein and which shall be in full force and effect,
together with:
(i) proper financing statements (Forms UCC-1 or the appropriate
equivalent) or amendments to previously filed financing
statements for filing to perfect the security interest purported
to be created by the SUbadvisor's Security Agreement;
(ii) evidence that all other actions necessary or, in the opinion of
the Bank, desirable, to perfect and protect the Lien created by
the SUbadvisor's Security Agreement have been taken;:
(j) receipt by the Bank of the duly executed Guaranty Agreement in form
and substance satisfactory to the Bank, which shall be in full force and effect;
(k) the fact that the representations and warranties of the Guarantor, the
Subadvisor and CRIIMI, Inc. contained in the Loan Documents to which each is a
party shall be true and correct and complete;
(l) receipt by the Bank of an opinion of Arent Fox Xxxxxxx Xxxxxxx & Xxxx,
counsel for the Borrower, the Guarantor, the Subadvisor and CRIIMI, Inc. in form
and substance satisfactory to the Bank and covering such matters relating to the
transactions contemplated hereby as the Bank may reasonably request, subject to
customary assumptions, exceptions and qualifications;
(m) for each of the Borrower, the Guarantor and CRIIMI, Inc., receipt by
the Bank of the following: (A) the articles of incorporation of the Borrower,
the Guarantor and CRIIMI, Inc. in effect on the Closing Date, certified as of a
recent date by the Secretary of State of Maryland, (B) the bylaws of the
Borrower, the Guarantor and CRIIMI, Inc. as in effect on the Closing Date,
certified as of the Closing Date by their respective corporate secretaries, (C)
resolutions of the boards of directors of the Borrower, the Guarantor and
CRIIMI, Inc. authorizing the execution, delivery and performance of the Loan
Documents, certified as of the Closing Date by their respective corporate
secretaries, (D) certificates as to the incumbency and authenticity of the
signatures of the officers of the Borrower, the Guarantor and CRIIMI, Inc.,
certified by their corporate secretaries and (E) certificates of good standing
of the Borrower, the Guarantor and CRIIMI, Inc. issued as of a recent date by
the Secretary of State of Maryland and each jurisdiction in which each of the
Borrower, the Guarantor and CRIIMI, Inc. maintains their respective principal
places of business;
(n) for the Subadvisor, receipt by the Bank of its (A) the agreement of
limited partnership in effect on the Closing Date, (B) the Certificate of
Limited Partnership in effect on the Closing Date, certified as of a recent date
by the Secretary of State of Maryland, and (C) a certificate of good standing in
effect on the Closing Date, certified as of a recent date by the Secretary of
State of Maryland;
(o) for CRI/AIM Investment Limited Partnership, receipt by the Bank of its
(A) the agreement of limited partnership in effect on the Closing Date, (B) the
Certificate of Limited Partnership in effect on the Closing Date, certified as
of a recent date by the Secretary of State of Delaware, (C) a certificate of
good standing in effect on the Closing Date, certified as of a recent date by
the Secretary of State of Delaware.
(p) on the Closing Date, no event, action or proceeding shall have
occurred (and the Bank shall have become aware of no facts or conditions not
previously known) which (i) could have a material adverse effect on the
business, financial position, results of operations or prospects of the
Borrower, the Guarantor, the Pledgors and their respective Subsidiaries,
considered as a whole, (ii) which could have a material adverse effect on the
ability of the Borrower, the Guarantor, or any Assignor to perform their
respective obligations under the Loan Documents or (iii) which in any manner
draws into question the validity of any of the Loan Documents;
(q) receipt by the Bank of such additional agreements, opinions,
certifications, instruments, documents, orders, consents and financing
statements, in form and substance satisfactory to the Bank, as the Bank may
reasonably request;
(r) legal matters incident to the execution and delivery of the Agreement
and the Loan Documents shall be satisfactory to the Bank and its counsel; and
(s) no event, which after execution of the Loan Documents would constitute
an Event of Default hereunder has occurred and is continuing.
(t) receipt by the Bank of the duly executed Subadvisor's Security
Agreement in form and substance satisfactory to the Bank covering all of the
"Collateral" referred to therein and which shall be in full force and effect,
together with:
(i) proper financing statements (Forms UCC-1 or the appropriate
equivalent) or amendments to previously filed financing
statements for filing to perfect the security interest created by
the Subadvisor's Security Agreement;
(ii) evidence that all other actions necessary or, in the opinion of
the Bank, desirable, to perfect and protect the Lien created by
the Subadvisor's Security Agreement have been taken;
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.1 Corporate Existence and Power.
The Borrower is a corporation duly incorporated, validly existing and in
good standing under the laws of Maryland, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
SECTION 4.2 Corporate and Governmental Authorization; No Contravention.
The execution, delivery and performance by the Borrower of the Loan
Documents are within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, require no action by or in respect of, or
filing with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or result in the creation or imposition of any Lien on any asset of the
Borrower, or any of the Subsidiaries of the Borrower other than the Lien created
by the Security Agreement.
SECTION 4.3 Binding Effect.
The Loan Documents constitute the legal, valid, binding and enforceable
agreements of the Borrower, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
SECTION 4.4 Financial Information.
Since March 31, 1995 there has been no material adverse change in the
business, financial position, results of operations or prospects of the Borrower
and its Subsidiaries, considered as a whole.
SECTION 4.5 Litigation.
Except as set forth in Schedule I hereto, there is no action, suit or
proceeding pending against, or to the knowledge of the Borrower, threatened
against or affecting, the Borrower, or any of its Subsidiaries before any court
or arbitrator or any governmental body, agency or official which could
materially adversely affect the business, financial position, results of
operations or prospects of the Borrower, and its respective Subsidiaries, which
could materially adversely affect the ability of the Borrower to perform its
obligations under the Loan Documents or which in any manner draws into question
the validity of any Loan Document.
SECTION 4.6 Compliance with Laws; ERISA.
(a) The Borrower and its respective Subsidiaries are in compliance, in all
material respects, with all applicable laws, ordinances, rules, regulations and
requirements of governmental bodies, agencies and officials.
(b) Each member of the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue Code with respect to
each Plan and is in compliance in all material respects with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code in respect of
any Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which, in the case of both (i) and
(ii) above, has resulted or could result in the imposition of a Lien or the
posting of a bond or other security under ERISA or the Internal Revenue Code or
(iii) incurred any liability under Title IV of ERISA other than (x) a liability
to the PBGC for premiums under Section 4007 of ERISA and (y) withdrawal
liabilities to Multiemployer Plans not in excess of $1,000,000.
SECTION 4.7 Environmental Matters.
In the ordinary course of their respective businesses, the officers of the
Borrower and its Subsidiaries will consider the effect of Environmental Laws on
their respective businesses, in the course of which they identify and evaluate
potential risks and liabilities accruing to them, as applicable, as lender and
lessor due to Environmental Laws. On the basis of this consideration, they have
reasonably concluded that Environmental Laws are unlikely to have a material
adverse effect on their businesses, financial condition, results of operations
or prospects of the Borrower and its Subsidiaries, considered as a whole.
SECTION 4.8 Taxes.
The Borrower and its Subsidiaries have filed all United States Federal
income tax returns and all other material tax returns which are required to be
filed by them and have paid all taxes due pursuant to such returns or pursuant
to any material assessment received by the Borrower or its Subsidiaries, except
for any amounts so assessed being contested in good faith by appropriate
proceedings for which adequate reserves have been established in accordance with
generally accepted accounting principles. The charges, accruals and reserves on
the books of the Borrower, and its Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Borrower, adequate.
SECTION 4.9 Not an Investment Company.
The Borrower is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 4.10 Full Disclosure.
All information heretofore furnished by the Borrower to the Bank for
purposes of or in connection with this Agreement, the other Loan Documents or
any transaction contemplated hereby or thereby is, and all such information
hereafter furnished by the Borrower to the Bank will be, true and accurate in
all material respects (or, in the case of any projections, were or will be
prepared in good faith, on the basis of the Borrower's best estimate of the
information purported to be shown thereby) on the date as of which such
information is stated or certified. The Borrower has disclosed to the Bank in
writing any and all facts which materially and adversely affect or may
materially and adversely affect (to the extent the Borrower can now reasonably
foresee), the business, operations or financial condition of the Borrower and
its Subsidiaries, taken as a whole the ability of the Borrower to perform its
obligations under the Loan Documents or which in any manner draws into question
the validity of the Loan Documents.
SECTION 4.11 Debt.
The Borrower has no Debt outstanding on the date hereof other than the Debt
outstanding hereunder.
SECTION 4.12 Title to Assets.
The Borrower has legal title to or a legal and valid leasehold interest in
all property and assets owned by it on the date hereof, and will have legal
title to all property and assets acquired by it at any time subsequent to the
date hereof, free and clear of all Liens, except Liens in favor of the Bank.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any amount payable under any Loan
Document remains unpaid:
SECTION 5.1 Information.
The Borrower will deliver to the Bank:
(a) within sixty days after the end of the first three fiscal quarters of
the Borrower, and within 120 days after the end of each fiscal year of the
Borrower, a certificate of the chief financial officer or the chief accounting
officer of the Borrower stating whether any Default existed during the period
covered by such financial statements or exists on the date of such certificate
and, if any Default then exists, setting forth the details thereof and the
action which the Borrower is taking or proposes to take with respect thereto;
(b) within five Domestic Business Days after any officer of the Borrower
obtains knowledge of any Default, a certificate of the chief financial officer
or the chief accounting officer of the Borrower setting forth the details
thereof and the action which the Borrower has taken, is taking or proposes to
take with respect thereto;
(c) from time to time such additional information regarding the financial
position or business of the Borrower, the Guarantor, any Pledgor or their
respective Subsidiaries as the Bank, may reasonably request.
SECTION 5.2 Maintenance of Property; Insurance.
(a) The Borrower will keep, and will cause each of its Subsidiaries to
keep all property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted.
(b) The Borrower will, and will cause each of its Subsidiaries to,
maintain with financially sound and responsible insurance companies, insurance
in such amounts and against such risks (and with such risk retention) as is
required by law or regulation or as is usually carried by owners of similar
businesses and properties in the same general areas in which the Borrower and
its Subsidiaries operate.
SECTION 5.3 Conduct of Business and Maintenance of Existence.
The Borrower will continue, and will cause each of its Subsidiaries to
continue, to engage in business of the same general type as now conducted by the
Borrower and its Subsidiaries, and will preserve, renew and keep in full force
and effect, and will cause each of its Subsidiaries to preserve, renew and keep
in full force and effect their respective corporate existence and their
respective rights, privileges and franchises necessary in the normal conduct of
business; provided that nothing in this Section 5.3 shall prohibit (i) any
merger or consolidation permitted by Section 5.8, (ii) the termination of the
corporate existence of any Subsidiary if the Borrower in good faith determines
that such termination is in the best interest of the Borrower and is not
materially disadvantageous to the Bank, or (iii) any change in the type of
business conducted by the Borrower or any Subsidiary of the Borrower, which does
not materially change the type of business engaged in by the Borrower, or such
Subsidiary and which does not adversely affect the status of the Guarantor as a
Real Estate Investment Trust.
SECTION 5.4 Compliance with Laws.
The Borrower will comply, and cause each of its Subsidiaries to comply,
with all applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, Environmental Laws and
ERISA and the rules and regulations thereunder) except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings or
where the failure to comply therewith will not materially adversely affect the
business, operations or financial condition of the Borrower and its
Subsidiaries, taken as a whole, or the ability of the Borrower to perform its
obligations under the Loan Documents.
SECTION 5.5 Incurrence of Debt.
The Borrower will not, and will not permit any of its Subsidiaries to,
issue, assume, guarantee, incur or otherwise be or become liable in respect of
Debt, if, after the incurrence of such Debt, there would exist the reasonable
possibility of a material adverse effect on the business financial position or
results of operations of the Borrower and its Subsidiaries, considered as a
whole, or on the ability of the Borrower to perform its obligations under the
Loan Documents, other than Debt expressly approved by the Bank, which approval
shall not be unreasonably withheld.
SECTION 5.6 Limitation on Liens.
The Borrower will not, nor will it permit any of its Subsidiaries to,
create, incur, assume or suffer to exist any Lien upon or with respect to any of
its assets (including, without limitation, the Assigned Collateral), whether now
owned or hereafter acquired, or assign or otherwise convey any right to receive
income (including, without limitation, from the Assigned Collateral), except (i)
Liens in favor of the Bank; (ii) Liens permitted by the other Loan Documents;
(iii) Liens imposed by any governmental authority for taxes, assessments or
charges not yet due or which are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are maintained
on the books of the Borrower or any of its Subsidiaries, as the case may be, in
accordance with GAAP; and (iv) Liens existing on the date hereof and disclosed
to the Bank in Schedule II hereto.
SECTION 5.7 Restricted Payments.
Other than in connection with the requirement to distribute taxable income
in accordance with the requirements of the Internal Revenue Code applicable to
Real Estate Investment Trusts, the Borrower will not and will not permit any of
its Subsidiaries to:
(a) directly or indirectly, purchase, redeem or retire any shares of
capital stock of any class of the Borrower or any such Subsidiary or any
warrants, rights or options to purchase or acquire any such shares of capital
stock of the Borrower or any such Subsidiary; or
(b) make any other payment or distribution, either directly or indirectly
or through any Subsidiary, in respect of the capital stock of the Borrower or
any such Subsidiary;
such declarations or payments of dividends, purchases, redemptions or
retirements of capital stock and warrants, rights or options, and all such other
distributions being herein collectively called "Restricted Payments" if, after
making any such Restricted Payment, a Default shall have occurred and be
continuing.
SECTION 5.8 Consolidations, Mergers and Sales of Assets.
The Borrower will not and will not permit any of its Subsidiaries to wind
up, liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of (or agree to do
any of the foregoing at any future time), whether in one or a series of
transactions, all of any substantial part of its assets; provided, however, that
(i) any Subsidiary may merge or consolidate with any other Subsidiary or the
Borrower, (ii) any Subsidiary may sell, lease, transfer or otherwise dispose of
any or all of its assets to the Borrower or another Subsidiary, (iii) the
Borrower may merge with any other entity, provided that (A) the Borrower shall
be the continuing or surviving corporation and (B) immediately after such
merger, no Default shall have occurred and be continuing and the Borrower shall
not be in default under any material loan agreement to which it is a party and
(iv) any Subsidiary may merge or consolidate with any other corporation,
provided that, immediately after giving effect to such merger or consolidation,
the continuing or surviving corporation of such merger or consolidation shall be
such Subsidiary and, provided further, that in each case, after giving effect
thereto, no material adverse change in the business, financial position, results
of operations or prospects of the Borrower and its Subsidiaries, considered as a
whole and no Event of Default shall have occurred and be continuing.
ARTICLE VI
DEFAULTS
SECTION 6.1. Events of Default.
If one or more of the following events ("Events of Default") shall have
occurred and be continuing:
(a) the Borrower shall fail to pay within five Domestic Business Days of
the due date any principal or interest on any Loan;
(b) the Borrower shall fail to observe or perform any covenant contained
in
Section 5.3, 5.5 through 5.8 of this Agreement;
(c) the Borrower, the Guarantor, or any Pledgor or any of their respective
Subsidiaries shall fail to observe or perform any covenant or agreement
contained in any Loan Documents (other than those covered by clause (a) or (b)
above) for 30 days (or, with respect to Section 5.2 of this Agreement after
written notice thereof has been given to the Borrower, the Guarantor or Pledgor
, as the case may be, by the Bank; provided, however, that if the Borrower is
diligently proceeding to cure such default, the cure period in this subsection,
the Guarantor or Pledgor, as the case may be, (c) shall be extended for such
additional time, not to exceed 30 days, as is reasonably necessary to complete
such cure;
(d) any representation, warranty, certification or statement made by the
Borrower, the Guarantor or any Pledgor in this Agreement or any other Loan
Document, or in any certificate, financial statement or other document delivered
pursuant thereto shall prove to have been incorrect in any material respect when
made (or deemed made);
(e) any Pledge Agreement shall not create a valid and binding first
priority security interest in the Collateral described therein securing the
obligations of the Borrower under the Loan Documents;
(f) the Consolidated Stockholders' Equity of the Guarantor shall at any
time be less than $150,000,000;
(g) the Borrower, the Guarantor, any Pledgor, or any of their respective
Subsidiaries shall fail to make any payment in respect of any Debt to the Bank,
or any Material Debt other than the Debt of the Borrower under the Loan
Documents when due or within any applicable grace period;
(h) any event or condition shall occur which results in the acceleration
of the maturity of any Material Debt of the Borrower or the Guarantor or enables
(or, with the giving of notice or lapse of time or both, would enable) the
holder of such Debt or any Person acting on such holder's behalf to accelerate
the maturity thereof;
(i) the Borrower, the Guarantor, any Pledgor, or any of their respective
Subsidiaries shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any action to
authorize any of the foregoing;
(j) an involuntary case or other proceeding shall be commenced against the
Borrower, the Guarantor, any Pledgor, or any of their respective Subsidiaries
seeking liquidation, reorganization, rehabilitation, conservation or other
relief with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian, rehabilitator, conservator or other similar
official of it or any substantial part of its property, and such involuntary
case or other proceeding shall remain undismissed and unstayed for a period of
60 days; or an order for relief shall be entered against the Borrower, the
Guarantor or any of their respective Subsidiaries under the federal bankruptcy
laws or any state insolvency laws as now or hereafter in effect;
(k) any member of the ERISA Group shall fail to pay when due an amount or
amounts aggregating in excess of $1,000,000 which it shall have become liable to
pay under Title IV of ERISA; or notice of intent to terminate a Material Plan
shall be filed under Title IV of ERISA by any member of the ERISA Group, any
plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer any Material Plan; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall occur a
complete or partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current payment
obligation in excess of $1,000,000;
(l) a judgment or order for the payment of money in excess of $5,000,000
shall be rendered against the Borrower, the Guarantor, any Pledgor Entity, or
any of their respective Subsidiaries and such judgment or order shall continue
unsatisfied, unstayed and unbonded for a period of 30 days; provided, however
that a judgment or order fully covered by insurance, which coverage has not been
disputed by the insurer, shall not be considered a Default;
then, and in every such event, the Bank may, by notice to the Borrower declare
the Note (together with accrued interest thereon) to be, and the Note shall
there upon become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; provided that in the case of any of the Events of Default specified in
clause (i) or (j) above, without any notice to the Borrower, the Guarantor or
any Pledgor, or any other act by the Bank, the Note (together with accrued
interest thereon) shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
ARTICLE VII
CHANGE IN CIRCUMSTANCES
SECTION 7.1 Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period:
(a) (i) the Bank determines that deposits in dollars (in the applicable
amounts) are not being offered to the Bank in the relevant market for such
Interest Period, the Bank shall forthwith give notice thereof to the Borrower,
whereupon until the Bank notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Bank to continue
Euro-Dollar Loans shall be suspended; or
(ii) the Bank determines that the Adjusted London Interbank
Offered Rate will not adequately and fairly reflect the cost to the Bank of
funding its Euro-Dollar Loans for such Interest Period,
the Bank shall forthwith give notice thereof to the Borrower, whereupon until
the Bank notifies the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligations of the Bank to continue Euro-Dollar
Loans shall be suspended;
(b) (i) Bank determines that term Federal funds (in the applicable
amounts) are not being offered to the Bank; or
(ii) the Bank determines that the Term Federal Funds Rate will not
adequately and fairly reflect the cost to the Bank of funding its Term Federal
Funds Loans, the Bank shall forthwith give notice thereof to the Borrower,
whereupon until the Bank notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Bank to continue
Term Federal Funds Loans shall be suspended;
(c) (i) the Bank determines that daily Federal funds (in the applicable
amounts) are not being offered to the Bank; or
(ii) the Bank determines that the Daily Federal Funds Rate will not
adequately and fairly reflect the cost to the Bank of funding its Daily Federal
Funds Loans,
the Bank shall forthwith give notice thereof to the Borrower, whereupon until
the Bank notifies the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligations of the Bank to continue Daily
Federal Funds Loans shall be suspended.
SECTION 7.2 Illegality.
If, on or after the date of this Agreement, the adoption of any applicable
law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by the Bank (or its Euro-Dollar Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or
impossible for the Bank (or its Euro-Dollar Lending Office) to make, maintain or
fund its Euro-Dollar Loan, the Bank shall forthwith give notice thereof to the
Borrower, whereupon until the Bank notifies the Borrower that the circumstances
giving rise to such suspension no longer exist, the obligation of the Bank to
continue the Euro-Dollar Loan shall be suspended. If, on or after the date of
this Agreement, the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Bank (or its
Domestic Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency shall
make it unlawful or impossible for the Bank (or its Domestic Lending Office) to
make, maintain or fund its Term Federal Funds Loan, the Bank shall forthwith
give notice thereof to the Borrower, whereupon until the Bank notifies the
Borrower that the circumstances giving rise to such suspension no longer exist,
the obligations of the Bank to continue Term Federal Funds Loans shall be
suspended. If, on or after the date of this Agreement, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by the Bank (or its Domestic Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or
impossible for the Bank (or its Domestic Lending Office) to make, maintain or
fund its Daily Federal Funds Loan, the Bank shall forthwith give notice thereof
to the Borrower, whereupon until the Bank notifies the Borrower that the
circumstances giving rise to such suspension no longer exist, the obligations of
the Bank to continue Daily Federal Funds Loans shall be suspended.
SECTION 7.3 Increased Cost and Reduced Return.
(a) If on or after the date hereof, the adoption of any applicable law,
rule or regulation, or any change therein, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by the Bank (or its Applicable Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency:
(i) shall subject the Bank (or its Applicable Lending Office) to any
tax, duty or other charge with respect to its Fixed Rate Loan or
the Note, or shall change the basis of taxation of payments to
the Bank (or its Applicable Lending Office) of the principal of
or interest on its Fixed Rate Loan or any other amounts due under
this Agreement in respect of its Fixed Rate Loan or its
obligations hereunder (except for changes in the rate of tax on
the overall net income of the Bank or its Applicable Lending
Office imposed by the jurisdiction in which the Bank's principal
executive office or Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the
Federal Reserve System, but excluding any such requirement
included in an applicable Euro-Dollar Reserve Percentage) against
assets of, deposits with or for the account of, or credit
extended by, the Bank (or its Applicable Lending Office) or shall
impose on the Bank (or its Applicable Lending Office) or on the
United States market for certificates of deposit or the London
interbank market any other condition affecting its Fixed Rate
Loan or its Note;
and the result of any of the foregoing is to increase the cost to the Bank (or
its Applicable Lending Office) of making or maintaining the Loan as a Fixed Rate
Loan, or to reduce the amount of any sum received or receivable by the Bank (or
its Applicable Lending Office) under this Agreement or under its Note with
respect thereto, by an amount deemed by the Bank to be material, then, within 15
days after demand by the Bank, the Borrower shall pay to the Bank such
additional amount or amounts as will compensate the Bank for such increased cost
or reduction.
(b) If the Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on capital of the Bank as a consequence of the
Bank's Loan or obligations hereunder to a level below that which the Bank could
have achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by the Bank to be material, then from time to time, within 15 days after demand
by the Bank, the Borrower shall pay to the Bank such additional amount or
amounts as will compensate the Bank for such reduction.
(c) The Bank will promptly notify the Borrower of any event of which it
has knowledge, occurring after the date hereof, which will entitle the Bank to
compensation pursuant to this Section. A certificate of the Bank claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be prima facie evidence as to all such
amounts. In determining such amount, the Bank may use any reasonable averaging
and attribution methods.
SECTION 7.4 Loans Substituted for Affected Fixed Rate Loans.
(a) If (i) the obligation of the Bank to continue the Euro-Dollar Loan has
been suspended pursuant to Section 7.1 or 7.2 or (ii) the Bank has demanded
compensation under Section 7.3(a) with respect to the Euro-Dollar Loan and the
Borrower shall, by at least five Euro-Dollar Business Days' prior notice to the
Bank have elected that the provisions of this Section shall apply to the Bank,
then, unless and until the Bank notifies the Borrower that the circumstances
giving rise to such suspension or demand for compensation no longer apply, the
Loan which would otherwise be continued by the Bank as a Euro-Dollar Loan, shall
be continued instead, at the option of the Borrower, as a Term Federal Funds
Loan or as a Daily Federal Funds Loan, as provided in Section 2.3(b).
(b) If (i) the obligation of any Bank to continue the Loan as a Term
Federal Funds Loan has been suspended pursuant to Section 7.1 or 7.2 or (ii) the
Bank is demanding compensation under Section 7.3(a) with respect to its Term
Federal Funds Loans and the Borrower shall, by at least five Domestic Business
Days' prior notice to the Bank, have elected that the provisions of this Section
shall apply to the Bank, then, unless and until the Bank notifies the Borrower
that the circumstances giving rise to such suspension or demand for compensation
no longer apply, the Loan, which would otherwise be continued by the Bank as a
Term Federal Funds Loan, shall be continued instead as a Daily Federal Funds
Loan.
(c) If the obligation of the Bank to continue the Loan as a Daily Federal
Funds Loan has been suspended pursuant to Section 7.1 or 7.2 or (ii) the Bank is
demanding compensation under Section 7.3(a) with respect to its Daily Federal
Funds Loan and the Borrower shall, by at least five domestic Business Days'
prior notice to the Bank, have elected that the provisions of this Section shall
apply to the Bank, then, unless and until the Bank notifies the Borrower that
the circumstances giving rise to such suspension or demand for compensation no
longer apply, the Loan, which would otherwise be continued by the Bank as a
Daily Federal Funds Loan, shall be continued instead as a Prime Rate Loan.
(d) If (i) the obligation of the Bank to continue the Loan as a Euro-
Dollar Loan has been suspended pursuant to Section 7.1 or 7.2 or (ii) the Bank
is demanding compensation under Section 7.3(a) with respect to its Euro-Dollar
Loan and the Borrower has elected that the provisions of this Section shall
apply to the Bank and the Bank has notified the Borrower that the circumstances
giving rise to such suspension or demand for compensation no longer apply, the
Loan shall be converted to a Euro-Dollar Loans on the third Euro-Dollar Business
Day after the date of such notice.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Notices.
All notices, requests and other communications to any party hereunder shall
be in writing (including bank wire, telex, facsimile transmission or similar
writing) and shall be given to such party: (y) in the case of the Borrower or
the Bank at their respective addresses, telex numbers or facsimile numbers set
forth on the signature pages hereof or (z) in the case of any party, such other
address, telex number or facsimile number as such party may hereafter specify
for the purpose by notice to the Bank and the Borrower. All notices shall be
effective when received, except that notices, other than notices to the Bank
under Article II or Article VII, given by certified mail, return receipt
requested, which are returned as refused or undeliverable, shall be deemed given
on the date mailed.
SECTION 8.2 No Waivers.
No failure or delay by the Bank in exercising any right, power or privilege
hereunder or under any Note shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 8.3 Expenses; Documentary Taxes; Indemnification.
(a) The Borrower shall pay (i) all out-of pocket expenses reasonably
incurred by the Bank, including reasonable fees and disbursements of counsel for
the Bank, in connection with the preparation of this Agreement, (ii) all out-of-
pocket expenses reasonably incurred by the Bank, including reasonable fees and
disbursements of counsel, and reasonable fees and disbursements of in-house
counsel, in connection with any single waiver or consent hereunder or any
amendment hereof or any Default or alleged Default hereunder; (provided,
however, such in-house counsel fees with respect to any waiver, consent or
amendment hereof shall not exceed $2,000.00) and (iii) if an Event of Default
occurs, all out-of-pocket expenses incurred by the Bank, including reasonable
fees and disbursements of counsel, and reasonable allocated costs of in-house
counsel, in connection with such Event of Default and collection, bankruptcy,
insolvency and other enforcement proceedings resulting therefrom. The Borrower
shall indemnify the Bank against any transfer taxes, documentary taxes,
assessments or charges made by any governmental authority by reason of the
execution and delivery of this Agreement, the Note, the Pledge Agreements, or
any other Loan Document.
(b) The Borrower agrees to indemnify the Bank and hold the Bank harmless
from and against any and all liabilities, losses (other than prospective fees
and interest income that would have been due hereunder for periods subsequent to
the repayment of the Loan and other accrued amounts payable hereunder in full
and the termination of the Commitment), damages, costs and expenses of any kind
(other than general overhead and administrative expenses), including, without
limitation, the reasonable fees and disbursements of counsel, which may be
incurred by the Bank in connection with any investigative, administrative or
judicial proceeding (whether or not the Bank shall be designated a party
thereto) relating to or arising out of this Agreement or the Loan Documents or
any actual or proposed use of proceeds of the Loan hereunder; provided that the
Bank shall not have the right to be indemnified hereunder for (i) any proceeding
against the Bank by any governmental authority, central bank or comparable
agency charged with the supervision of the Bank or (ii) its own gross negligence
or willful misconduct as determined by a court of competent jurisdiction.
SECTION 8.4 Right of Set-Off.
The Borrower agrees that the Bank may exercise rights of set-off or
counterclaim and other rights with respect to the Loan.
SECTION 8.5 Amendments and Waivers.
Any provision of this Agreement or the Note may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed by the Bank
and the Borrower.
SECTION 8.6 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
except that the Borrower may not assign or otherwise transfer any of its rights
under this Agreements without the prior written consent of the Bank.
(b) The Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in the Loan. In the
event of any such grant by the Bank of a participating interest to a
Participant, whether or not upon notice to the Borrower, the Bank shall remain
responsible for the performance of its obligations hereunder, and the Borrower
shall continue to deal solely and directly with the Bank in connection with the
Bank's rights and obligations under this Agreement. Any agreement pursuant to
which the Bank may grant such a participating interest shall provide that the
Bank shall retain the sole right and responsibility to enforce the obligations
of the Borrower hereunder, including, without limitation, the right to approve
any amendment, modification or waiver of any provision of this Agreement;
provided that such participation agreement may provide that the Bank will not
agree to any modification, amendment or waiver of this Agreement which would (i)
reduce the principal of or rate of interest on the Loan or any fees hereunder or
(ii) postpone the date fixed for any payment of principal of or interest on the
Loan or any fees hereunder without the consent of the Participant. The Borrower
agrees that each Participant shall, to the extent provided in its participation
agreement, be entitled to the benefits of Sections 7.3 and 7.4 with respect to
its participating interest. An assignment or other transfer which is not
permitted by subsection (c) or (d) below shall be given effect for purposes of
this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) The Bank may at any time assign all or any portion of its rights under
this Agreement, the Note, the Pledge Agreements and the other Loan Documents to
a Federal Reserve Bank. No such assignment shall release the Bank from its
obligations hereunder.
(d) No Participant or other transferee of the Bank's rights shall be
entitled to receive any greater payment under Section 7.3 than the Bank would
have been entitled to receive with respect to the rights transferred, unless
such transfer is made with the Borrower's prior written consent or at a time
when the circumstances giving rise to such greater payment did not exist.
SECTION 8.7 Governing Law; Submission to Jurisdiction.
THIS AGREEMENT AND THE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA WITHOUT GIVING EFFECT
TO THE CHOICE OF LAW RULES THEREOF. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Eastern
District of Virginia and of any Virginia State court for purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. The Borrower irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum.
SECTION 8.8 Counterparts; Integration.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement constitutes the entire
agreement and understanding among the parties hereto and supersedes any and all
prior agreements and understandings, oral or written, relating to the subject
matter hereof.
SECTION 8.9 WAIVER OF JURY TRIAL.
THE BORROWER AND THE BANK HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. This Waiver of right to a
trial by jury is separately given, knowingly and voluntarily, by the Borrower,
and the Bank, and this waiver is intended to encompass individually each
instance and each issue as to which the right to a trial by jury would otherwise
accrue. The Borrower, and the Bank are hereby authorized and requested to
submit this Agreement to any court having jurisdiction over the subject matters
and the parties hereto, so as to serve as conclusive evidence of the parties'
herein contained waiver of the right to trial by jury. Further, the Borrower
and the Bank hereby certify that no representative, attorney or agent of any
other party has represented, expressly or otherwise, to the Borrower, or the
Bank that any other party will not seek to enforce this waiver of right to trial
by jury provision.
SECTION 8.10 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience of reference only and shall not affect the construction hereof.
SECTION 8.11 Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall not invalidate the remaining provisions hereof or affect the
validity or enforceability of such provisions in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
CRIIMI MAE MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxx X. Xxxxxx
Title: Senior Vice President/
Chief Financial Officer
Notice Address:
The CRI Building
00000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy number: (000) 000-0000
Verification: (000) 000-0000
With a copy of any notices to:
The Office of the General Counsel
Attention: Xxxxxxx X. Xxxx, Esq.
SIGNET BANK/VIRIGINA
By: /s/ Xxxxx X. Xxxxxx
------------------------
Xxxxx X. Xxxxxx
Vice President
Notice Address:
0000 Xxxxxxxx Xxxx
Xxxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Vice President
Telecopy number: (000) 000-0000
Verification: (000) 000-0000
Domestic Lending Office:
0000 Xxxxxxxx Xxxx
Xxxxx Xxxxxx, Xxxxxxxx 00000
Euro-Dollar Lending Office:
0000 Xxxxxxxx Xxxx
Xxxxx Xxxxxx, Xxxxxxxx 00000
