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EXHIBIT 10.12
$100,000,000
CREDIT AGREEMENT
DATED AS OF
NOVEMBER 1, 1999
AMONG
IRT PROPERTY COMPANY
THE BANKS LISTED HEREIN
AND
WACHOVIA BANK, N.A.,
AS ADMINISTRATIVE AGENT
FIRST UNION NATIONAL BANK,
AS SYNDICATION AGENT
AND
WACHOVIA SECURITIES, INC., AS ARRANGER
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TABLE OF CONTENTS
CREDIT AGREEMENT
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ARTICLE I. DEFINITIONS..........................................................................1
SECTION 1.01. DEFINITIONS..............................................................................1
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS.....................................................18
SECTION 1.03. REFERENCES..............................................................................19
SECTION 1.04. USE OF DEFINED TERMS....................................................................19
SECTION 1.05. TERMINOLOGY.............................................................................19
ARTICLE II. THE CREDITS........................................................................19
SECTION 2.01. COMMITMENTS TO LEND SYNDICATED LOANS....................................................19
SECTION 2.02. METHOD OF BORROWING SYNDICATED LOANS....................................................20
SECTION 2.03. MONEY MARKET LOANS......................................................................22
SECTION 2.04. CONTINUATION AND CONVERSION ELECTIONS...................................................25
SECTION 2.05. NOTES...................................................................................26
SECTION 2.06. MATURITY OF LOANS.......................................................................26
SECTION 2.07. INTEREST RATES..........................................................................27
SECTION 2.08. FEES....................................................................................30
SECTION 2.09. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS........................................30
SECTION 2.10. MANDATORY REDUCTION AND TERMINATION OF COMMITMENTS......................................30
SECTION 2.11. OPTIONAL PREPAYMENTS....................................................................31
SECTION 2.12. MANDATORY PREPAYMENTS...................................................................31
SECTION 2.13. GENERAL PROVISIONS AS TO PAYMENTS.......................................................31
SECTION 2.14. COMPUTATION OF INTEREST AND FEES........................................................33
ARTICLE III. CONDITIONS TO BORROWINGS..........................................................33
SECTION 3.01. CONDITIONS TO FIRST BORROWING...........................................................33
SECTION 3.02. CONDITIONS TO ALL BORROWINGS............................................................35
ARTICLE IV. REPRESENTATIONS AND WARRANTIES.....................................................36
SECTION 4.01. CORPORATE EXISTENCE AND POWER...........................................................36
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO CONTRAVENTION..............................36
SECTION 4.03. BINDING EFFECT..........................................................................36
SECTION 4.04. FINANCIAL INFORMATION...................................................................37
SECTION 4.05. NO LITIGATION...........................................................................37
SECTION 4.06. COMPLIANCE WITH ERISA...................................................................37
SECTION 4.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES..................................................37
SECTION 4.08. SUBSIDIARIES............................................................................38
SECTION 4.09. INVESTMENT COMPANY ACT..................................................................38
SECTION 4.10. PUBLIC UTILITY HOLDING COMPANY ACT......................................................38
SECTION 4.11. OWNERSHIP OF PROPERTY; LIENS............................................................38
SECTION 4.12. NO DEFAULT..............................................................................38
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SECTION 4.13. FULL DISCLOSURE.........................................................................38
SECTION 4.14. ENVIRONMENTAL MATTERS...................................................................39
SECTION 4.15. CAPITAL STOCK...........................................................................39
SECTION 4.16. MARGIN STOCK............................................................................39
SECTION 4.17. INSOLVENCY..............................................................................40
SECTION 4.18. INSURANCE...............................................................................40
SECTION 4.19. Y2K PLAN................................................................................40
SECTION 4.20. REAL ESTATE INVESTMENT TRUST............................................................40
ARTICLE V. COVENANTS...........................................................................41
SECTION 5.01. INFORMATION.............................................................................41
SECTION 5.02. INSPECTION OF PROPERTY, BOOKS AND RECORDS...............................................43
SECTION 5.03. MAINTENANCE OF EXISTENCE................................................................43
SECTION 5.04. DISSOLUTION.............................................................................43
SECTION 5.05. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS.............................................43
SECTION 5.06. USE OF PROCEEDS.........................................................................44
SECTION 5.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES..................................................44
SECTION 5.08. INSURANCE...............................................................................45
SECTION 5.09. CHANGE IN FISCAL YEAR...................................................................45
SECTION 5.10. MAINTENANCE OF PROPERTY.................................................................45
SECTION 5.11. ENVIRONMENTAL NOTICES...................................................................45
SECTION 5.12. ENVIRONMENTAL MATTERS...................................................................45
SECTION 5.13. ENVIRONMENTAL RELEASE...................................................................45
SECTION 5.14. TRANSACTIONS WITH AFFILIATES............................................................45
SECTION 5.15. RESTRICTED PAYMENTS.....................................................................46
SECTION 5.16. INVESTMENTS.............................................................................46
SECTION 5.17. LIENS...................................................................................46
SECTION 5.18. RESTRICTIONS ON ABILITY OF SUBSIDIARIES TO PAY DIVIDENDS................................47
SECTION 5.19. ADDITIONAL DEBT.........................................................................47
SECTION 5.20. RATIO OF CONSOLIDATED TOTAL LIABILITIES TO CONSOLIDATED TOTAL ASSET VALUE...............48
SECTION 5.21. RATIO OF CONSOLIDATED TOTAL SECURED DEBT TO CONSOLIDATED TOTAL ASSET VALUE..............48
SECTION 5.22. RATIO OF CONSOLIDATED EBITDA TO CONSOLIDATED INTEREST EXPENSE...........................48
SECTION 5.23. RATIO OF CONSOLIDATED UNENCUMBERED REAL ESTATE ASSETS TO CONSOLIDATED UNSECURED
SENIOR DEBT.............................................................................48
SECTION 5.24. RATIO OF CONSOLIDATED UNENCUMBERED NET OPERATING INCOME TO CONSOLIDATED
UNSECURED INTEREST EXPENSE..............................................................48
SECTION 5.25. RATIO OF CONSOLIDATED EBITDA TO CONSOLIDATED FIXED CHARGES..............................48
SECTION 5.26. Y2K COMPLIANCE..........................................................................48
SECTION 5.27. SIGNIFICANT SUBSIDIARIES TO BE GUARANTORS; ELECTION TO BECOME GUARANTOR.................49
SECTION 5.28. TOP LEVEL REORGANIZATION................................................................49
ARTICLE VI. DEFAULTS...........................................................................50
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SECTION 6.01. EVENTS OF DEFAULT.......................................................................50
SECTION 6.02. NOTICE OF DEFAULT.......................................................................53
ARTICLE VII. THE ADMINISTRATIVE AGENT..........................................................53
SECTION 7.01. APPOINTMENT; POWERS AND IMMUNITIES......................................................53
SECTION 7.02. RELIANCE BY ADMINISTRATIVE AGENT........................................................54
SECTION 7.03. DEFAULTS................................................................................54
SECTION 7.04. RIGHTS OF ADMINISTRATIVE AGENT AND ITS AFFILIATES AS A BANK.............................54
SECTION 7.05. INDEMNIFICATION.........................................................................55
SECTION 7.06. CONSEQUENTIAL DAMAGES...................................................................55
SECTION 7.07. PAYEE OF NOTE TREATED AS OWNER..........................................................55
SECTION 7.08. NONRELIANCE ON ADMINISTRATIVE AGENT AND OTHER BANKS.....................................55
SECTION 7.09. FAILURE TO ACT..........................................................................56
SECTION 7.10. RESIGNATION OR REMOVAL OF ADMINISTRATIVE AGENT..........................................56
SECTION 7.11. SYNDICATION AGENT.......................................................................57
ARTICLE VIII. CHANGE IN CIRCUMSTANCES; COMPENSATION............................................57
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR................................57
SECTION 8.02. ILLEGALITY..............................................................................57
SECTION 8.03. INCREASED COST AND REDUCED RETURN.......................................................58
SECTION 8.04. BASE RATE LOANS OR OTHER FIXED RATE LOANS SUBSTITUTED FOR AFFECTED FIXED RATE
LOANS...................................................................................59
SECTION 8.05. COMPENSATION............................................................................59
SECTION 8.06. REPLACEMENT OF BANKS....................................................................60
ARTICLE IX. MISCELLANEOUS......................................................................60
SECTION 9.01. NOTICES.................................................................................60
SECTION 9.02. NO WAIVERS..............................................................................61
SECTION 9.03. EXPENSES; DOCUMENTARY TAXES.............................................................61
SECTION 9.04. INDEMNIFICATION.........................................................................61
SECTION 9.05. SETOFF; SHARING OF SETOFFS..............................................................62
SECTION 9.06. AMENDMENTS AND WAIVERS..................................................................63
SECTION 9.07. NO MARGIN STOCK COLLATERAL..............................................................64
SECTION 9.08. SUCCESSORS AND ASSIGNS..................................................................64
SECTION 9.09. CONFIDENTIALITY.........................................................................67
SECTION 9.10. REPRESENTATION BY BANKS.................................................................67
SECTION 9.11. OBLIGATIONS SEVERAL.....................................................................67
SECTION 9.12. GEORGIA LAW.............................................................................67
SECTION 9.13. SEVERABILITY............................................................................68
SECTION 9.14. INTEREST................................................................................68
SECTION 9.15. INTERPRETATION..........................................................................69
SECTION 9.16. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION...........................................69
SECTION 9.17. COUNTERPARTS............................................................................69
SECTION 9.18. SOURCE OF FUNDS -- ERISA................................................................69
SECTION 9.19. NO BANKRUPTCY PROCEEDINGS...............................................................69
SECTION 9.20. APPROVAL OF GUARANTY PROVISIONS.........................................................70
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EXHIBIT A-1 Form of Syndicated Loan Note
EXHIBIT A-2 Form of Money Market Loan Note
EXHIBIT B Form of Opinion of Counsel for the Borrower and the Guarantors
EXHIBIT C Form of Opinion of Special Counsel for the Administrative Agent
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E-1 Form of Notice of Borrowing
EXHIBIT E-2 Form of Notice of Continuation or Conversion
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Closing Certificate
EXHIBIT H Form of Officer's Certificate
EXHIBIT I Form of Money Market Quote Request
EXHIBIT J Form of Money Market Quote
EXHIBIT K Form of Designation Agreement
EXHIBIT L Form of Borrowing Base Certificate
EXHIBIT M List of Eligible Properties
EXHIBIT N Form of Guaranty
EXHIBIT O Form of Contribution Agreement
EXHIBIT P Form of Funding Indemnification Letter
EXHIBIT Q Form of Joinder Agreement (Re Top Level Reorganization)
Schedule 4.08 Subsidiaries
Schedule 4.14 Environmental Matters
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CREDIT AGREEMENT
CREDIT AGREEMENT dated as of November 1, 1999 among IRT
PROPERTY COMPANY, the BANKS listed on the signature pages hereof, WACHOVIA BANK,
N.A., as Administrative Agent and FIRST UNION NATIONAL BANK, as Syndication
Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS.
The terms as defined in this Section 1.01 shall, for all
purposes of this Agreement and any amendment hereto (except as herein otherwise
expressly provided or unless the context otherwise requires), have the meanings
set forth herein:
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.07(c).
"Administrative Agent" means Wachovia Bank, N.A., a national
banking association organized under the laws of the United States of America, in
its capacity as administrative agent for the Banks hereunder, and its successors
and permitted assigns in such capacity.
"Affiliate" of any relevant Person means (i) any Person that
directly, or indirectly through one or more intermediaries, controls the
relevant Person (a "Controlling Person"), (ii) any Person (other than the
relevant Person or a Subsidiary of the relevant Person) which is controlled by
or is under common control with a Controlling Person, or (iii) any Person (other
than a Subsidiary of the relevant Person) of which the relevant Person owns,
directly or indirectly, 20% or more of the common stock or equivalent equity
interests. As used herein, the term "control" means 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 securities, by
contract or otherwise.
"Arranger's Letter Agreement" means that certain letter
agreement, dated as of August 23, 1999 between the Borrower and Wachovia
Securities, Inc., as arranger, and Wachovia Bank, N.A., as Administrative Agent,
relating to the structure of the Loans, and certain fees from time to time
payable by the Borrower to Wachovia Securities, Inc., as arranger, and to the
Administrative Agent, together with all amendments and supplements thereto.
"Agreement" means this Credit Agreement, together with all
amendments and supplements hereto.
"Applicable Margin" has the meaning set forth in Section
2.07(a).
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"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and Acceptance
executed in accordance with Section 9.08(c) in the form attached hereto as
Exhibit D.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof as
having a Commitment, and its successors and assigns and the Designated Banks, if
any; provided, however, that the term "Bank" shall exclude each Designated Bank
when used in reference to a Syndicated Loan, the Commitments or terms relating
to the Syndicated Loans (except as noted above) and the Commitments.
"Base Rate" means for any Base Rate Loan for any day, the rate
per annum equal to the higher as of such day of (i) the Prime Rate, or (ii)
one-half of one percent above the Federal Funds Rate. For purposes of
determining the Base Rate for any day, changes in the Prime Rate or the Federal
Funds Rate shall be effective on the date of each such change.
"Base Rate Loan" means a Loan which bears or is to bear
interest at a rate based upon the Base Rate, and is to be made as a Base Rate
Loan pursuant to the applicable Notice of Borrowing, Notice of Continuation or
Conversion, Section 2.02(f), or Article VIII, as applicable.
"Borrower" means (i) until the consummation of a Top Level
Reorganization and the satisfaction of the Top Level Reorganization Conditions,
IRT PROPERTY COMPANY, a Georgia corporation, and (ii) thereafter, IRT Partners
L.P., and in each case its successors and its permitted assigns.
"Borrower/Parent" means (i) until the consummation of a Top
Level Reorganization and the satisfaction of the Top Level Reorganization
Conditions, IRT Property Company, a Georgia corporation, as the Borrower
hereunder and (ii) thereafter, the Parent, and in each case its successors and
its permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Loans
made to the Borrower (i) at the same time by all of the Banks, in the case of a
Syndicated Borrowing, or (ii) separately by one or more Banks, in the case of a
Money Market Borrowing, in each case pursuant to Article II. A Borrowing is a
"Base Rate Borrowing" if such Loans are Base Rate Loans. A Borrowing is a
Euro-Dollar Borrowing if such Loans are Euro-Dollar Loans. A Borrowing is a
"Money Market Borrowing" if such Loans are made pursuant to Section 2.03 or a
"Syndicated Borrowing" if such Loans are made pursuant to Section 2.01.
"Borrowing Base" means the sum of each of the following, as
determined by reference to the most recent Borrowing Base Certificate furnished
pursuant to Section 3.01(h) or Section 5.01(k), as applicable (and with respect
to any Eligible Property which consists of phases, each phase thereof shall be
separately categorized into clause (i), (ii) or (iii) below, as appropriate, so
long as such phase could be separately financed on a stand-alone basis).
(i) an amount equal to the product of: (x) the
quotient of (1) the Net Operating Income (but for the Non-Wholly Owned
Eligible Property, include only the
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Non-Wholly Owned Eligible Property Percentage thereof) for the 3 month
period ending on the last day of the Fiscal Quarter just ended prior to
the date of determination, from each Eligible Unencumbered Stabilized
Property (excluding percentage rents received during such 3 month
period, but including an amortized value for percentage rents received
during the current Fiscal Year), divided by (2) 0.0975 (which is the
capitalization rate); times (y) 4 (which is the annualization factor);
times (z) 0.60 (which is the advance rate); plus
(ii) an amount equal to the lesser of: (A) the
product of (x) 0.50 (which is the advance rate), times (y) the book
value of Construction in Progress on the last day of the Fiscal Quarter
just ended on all Eligible Properties not subject to a Mortgage and (B)
$20,000,000; plus
(iii) an amount equal to the product of (x) 0.60
(which is the advance rate), times (y) the acquisition cost of all
Eligible Unencumbered Stabilized Property not owned for the entire 3
month period ending on the last day of the Fiscal Quarter just ended
prior to the date of determination.
"Borrowing Base Certificate" means a certificate substantially
in the form of Exhibit L, duly executed by an Executive Officer of the Borrower,
setting forth in reasonable detail the calculations for each component of the
Borrowing Base.
"Capital Stock" means any nonredeemable capital stock of (i)
until the consummation of a Top Level Reorganization and the satisfaction of the
Top Level Reorganization Conditions, the Borrower/Parent or any Consolidated
Subsidiary (to the extent issued to a Person other than the Borrower/Parent),
whether common or preferred and (ii) thereafter, the Parent or any Consolidated
Subsidiary (to the extent issued to a Person other than the Parent), whether
common or preferred.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. ss. 9601 et. seq. and its implementing
regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section
8.02.
"Closing Certificate" has the meaning set forth in Section
3.01(e).
"Closing Date" means November 1, 1999.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor Federal tax code.
"Commitment" means, with respect to each Bank, (i) the amount
set forth opposite the name of such Bank on the signature pages hereof, and
(ii)as to any Bank which enters into any Assignment and Acceptance (whether as
transferor Bank or as Assignee thereunder), the amount of such Bank's Commitment
after giving effect to such Assignment and
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Acceptance, in each case as such amount may be reduced from time to time
pursuant to Sections 2.09 and 2.10.
"Compliance Certificate" has the meaning set forth in Section
5.01(c).
"Consolidated Debt" means at any date the Debt of the
Borrower/Parent and each Consolidated Entity, determined on a consolidated basis
as of such date.
"Consolidated EBITDA" means at any time the sum of the
following, determined on a consolidated basis for the Borrower/Parent and each
Consolidated Entity, at the end of each Fiscal Quarter, for the applicable
measuring period: (i) Consolidated Net Income; plus (ii) Consolidated Interest
Expense; plus (iii) taxes on income; plus (iv) depreciation; plus (v)
amortization; plus (vi) other non-cash charges.
"Consolidated Entity" means at any date the Guarantors and any
other Person the accounts of which, in accordance with GAAP, are consolidated
with those of the Borrower/Parent in its consolidated financial statements as of
such date.
"Consolidated Fixed Charges" means at any time the sum of the
following, determined on a consolidated basis for the Borrower/Parent and each
Consolidated Entity, at the end of each Fiscal Quarter, for the Fiscal Quarter
just ended: (i) Consolidated Interest Expense; plus (ii) all Dividends paid, or
declared but not yet paid, by the Borrower/Parent on preferred stock; plus (iii)
the aggregate amount of scheduled principal amortization paid, as reflected on
the Borrower/Parent's most recent quarterly financial statement submitted to the
Banks, but excluding any principal payments under this Agreement or any other
agreement pertaining to revolving Debt permitted under Section 5.19(iii), and
excluding any balloon, bullet or similar payments on other Debt and (iv)
payments on ground leases.
"Consolidated Intangible Assets" means, with respect to the
Borrower/Parent and its Consolidated Subsidiaries, determined on a consolidated
basis, all assets which would be treated as intangible assets for balance sheet
presentation purposes under GAAP, including without limitation goodwill (whether
representing the excess of cost over book value of assets acquired, or
otherwise), trademarks, tradenames, copyrights, patents and technologies, and
unamortized debt discount and expense.
"Consolidated Interest Expense" for any period means interest,
whether expensed or capitalized, in respect of Debt of the Borrower/Parent and
each Consolidated Entity outstanding during such period.
"Consolidated Net Income" means, for any period, the Net
Income of the Borrower/Parent and each Consolidated Entity determined on a
consolidated basis, but excluding (i) extraordinary items, (ii) gains and losses
on sales of assets, (iii) losses resulting from forgiveness by the
Borrower/Parent or any Consolidated Entity of Debt, (iv) expenses associated
with significant non-recurring events and (v) any equity interests of the
Borrower/Parent or any Subsidiary in the unremitted earnings of any Person that
is not a Subsidiary.
"Consolidated Operating Profits" means, for any period, the
Operating Profits of the Borrower/Parent and each Consolidated Entity.
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"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which, in accordance with GAAP, would be
consolidated with those of the Borrower/Parent in its consolidated financial
statements as of such date.
"Consolidated Tangible Assets" means the sum of (i)
Consolidated Total Assets, less (ii) Consolidated Intangible Assets.
"Consolidated Total Assets" means, at any time, the total
assets of the Borrower/Parent and each Consolidated Entity, determined on a
consolidated basis, as set forth or reflected on the most recent consolidated
balance sheet of the Borrower/Parent and each Consolidated Entity, prepared in
accordance with GAAP.
"Consolidated Total Asset Value" means, on a consolidated
basis for the Borrower/Parent and each Consolidated Entity, the sum of:
(i) an amount equal to the product of: (x) the
quotient of (1) the Net Operating Income for the 3 month period ending
on the last day of the Fiscal Quarter just ended prior to the date of
determination (excluding percentage rents received during such 3 month
period, but including an amortized value for percentage rents received
during the current Fiscal Year), from each Property (other than
Property owned by Borrower or any Consolidated Entity for less than
three months) less, divided by (2) 0.0975 (which is the capitalization
rate); times (y) 4 (which is the annualization factor); plus
(ii) an amount equal to the book value of (A)
Construction in Progress plus (B) Properties consisting of unimproved
land, as determined on the last day of the Fiscal Quarter just ended;
plus
(iii) an amount equal to the acquisition cost of
improved Properties owned by Borrower or any Consolidated Entity less
than three months, as determined on the last day of the Fiscal Quarter
just ended; plus
(iv) an amount equal to the sum of all unrestricted
balances on deposit with banks or other financial institutions and all
restricted cash held by a Qualified intermediary on behalf of the
Borrower/Parent or any Guarantor; plus
(v) for any Subsidiary which is not a Wholly Owned
Subsidiary, an amount equal to the book value of the Ownership
Percentage of such Subsidiary, as shown on the Borrower/Parent's
balance sheet; plus
(vi) without duplication, the book value of all
other Consolidated Tangible Assets.
"Consolidated Total Liabilities" means the total liabilities
of the Borrower/Parent and the Consolidated Entities, on a consolidated basis
(including liabilities on account of Dividends, whether paid or declared but not
yet paid), plus the aggregate amount of Debt Guaranteed by the Borrower/Parent,
the Guarantors and the Subsidiaries (other than of Debt of any of them) at the
end of the Borrower/Parent's most recent Fiscal Quarter.
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"Consolidated Total Secured Debt" shall mean all Debt of the
Borrower/Parent and the Consolidated Entities consisting of (i) capitalized
leases, (ii) money borrowed or the deferred purchase price of real property
which is also secured by a Mortgage on any real property owned by the
Borrower/Parent or any Consolidated Entity; and (iii) Guarantees of the
Borrower/Parent or any Consolidated Entity of Debt of any other Person which is
secured by a Mortgage on an asset of the Borrower/Parent or such Consolidated
Entity.
"Consolidated Unencumbered Net Operating Income" means that
portion of Net Operating Income which is attributable to any Property (i) which
is not subject to any Mortgage or (ii) which is owned by any Person whose stock,
partnership interests or other ownership interests are not subject to any pledge
in favor of a third party.
"Consolidated Unencumbered Real Estate Assets" means at any
time, for the Borrower and each Consolidated Entity, determined on a
consolidated basis, the sum (without duplication with respect to any Property)
of the following:
(i) an amount equal to the product of (x) 9.75 (which is
the capitalization rate), times (y) 4 (which is the annualization
factor), times (z) the Net Operating Income for the 3 month period
ending on the last day of the Fiscal Quarter just ended prior to the
date of determination, from each real estate Property not subject to a
Mortgage and owned by the Borrower or any Consolidated Entity for at
least one Fiscal Quarter; plus
(ii) an amount equal to the acquisition cost of improved
Properties not subject to a Mortgage owned by Borrower or any
Consolidated Entity less than three months, as determined on the last
day of the Fiscal Quarter just ended; plus
(iii) an amount equal to the book value of (A) Construction in
Progress on all Properties not subject to a Mortgage, plus (B)
Properties consisting of unimproved land, as determined on the last day
of the Fiscal Quarter just ended, of each Property not subject to a
Mortgage.
"Consolidated Unsecured Interest Expense" means at any time
that portion of Consolidated Interest Expense attributable to Consolidated
Unsecured Senior Debt.
"Consolidated Unsecured Senior Debt" means Consolidated Debt
which is (i) not expressly made subordinated to any other Consolidated Debt and
(ii) not subject to a Mortgage or any other Lien on any Property of the Borrower
or any Consolidated Entity.
"Construction in Progress" means, for any Property in the
process of being developed as a retail shopping center but is not a Stabilized
Property, calculated on a consolidated basis for the Borrower and the
Guarantors, the construction-in-progress as shown from time to time on the books
and records of the Borrower and the Guarantors, maintained in accordance with
GAAP.
"Contribution Agreement" means the Contribution Agreement of
even date herewith in substantially the form of Exhibit O to be executed by the
Borrower and each of the Guarantors pursuant to Section 3.01 or 5.27.
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"Control" means, with respect to any Person, the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities or otherwise.
"Controlled Group" means 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 Code.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) 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, (iv) all obligations of such Person as lessee under capital
leases, (v) all obligations of such Person to reimburse any bank or other Person
in respect of amounts payable under a banker's acceptance, (vi) all Redeemable
Preferred Stock of such Person (in the event such Person is a corporation),
(vii) all obligations of such Person to reimburse any bank or other Person in
respect of amounts paid or to be paid under a letter of credit or similar
instrument, (viii) all Debt of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person, (ix) all obligations
of such Person with respect to interest rate protection agreements, foreign
currency exchange agreements or other hedging arrangements (valued as the
termination value thereof computed in accordance with a method approved by the
International Swap Dealers Association and agreed to by such Person in the
applicable hedging agreement, if any), (x) all obligations of such Person under
a forward contract for the purchase of equity securities, and (xi) all Debt of
others Guaranteed by such Person.
"Debt Rating" means at any time whichever is the average of
the spread between the ratings of the Borrower/Parent's senior unsecured,
unenhanced debt (or, if no such debt exists, its issuer credit rating for debt
of such type) by Moody's or S&P (as such rating may change from time to time,
either pursuant to Section 2.07(g) or otherwise) (provided, that in the event of
a double or greater split rating, the rating immediately above the lowest rating
shall apply), or if only one of them rates the Borrower/Parent's senior
unsecured, unenhanced debt, such rating.
"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.
"Default Rate" means, with respect to any Loan, on any day,
the sum of 2% plus the then highest interest rate (including the Applicable
Margin) which may be applicable to any Loans hereunder (irrespective of whether
any such type of Loans are actually outstanding hereunder).
"Designated Bank" means a special purpose corporation owned
and controlled by its Designating Bank that is identified as such on the
signature pages hereto next to the caption "Designated Bank" as well as each
special purpose corporation owned and controlled by its Designating Bank that
(i) shall have become a party to this Agreement pursuant to Section 9.08(g), and
(ii) is not otherwise a Bank.
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"Designated Bank Note" means a Money Market Loan Note,
evidencing the obligation of the Borrower to repay Money Market Loans made by a
Designated Bank, and "Designated Bank Notes" means any all such Money Market
Loan Notes to Designated Banks issued hereunder.
"Designating Bank" shall mean each Bank that is identified as
such on the signature pages hereto next to the caption "Designating Bank" and
immediately below the signature of its Designated Bank as well as each Bank that
shall designate a Designated Bank pursuant to Section 9.08(g).
"Designation Agreement" means a designation agreement in
substantially the form of Exhibit K attached hereto, entered into by a Bank and
a Designated Bank and acknowledged by the Borrower and the Administrative Agent.
"Dividends" means for any period the sum of all dividends and
other distributions paid or declared during such period in respect of any
Capital Stock and Redeemable Preferred Stock (other than dividends paid or
payable in the form of additional Capital Stock).
"Dollars" or "$" means dollars in lawful currency of the
United States of America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in Georgia are authorized by law
to close.
"Eligible Property" means the Non-Wholly Owned Eligible
Property (but only so long as the Borrower and/or the Guarantors control the
operation and management of, and have the controlling interest in, such
Property) and any other Property which is wholly owned by the Borrower and/or
any Guarantor and which is either (i) listed on Exhibit M or (ii) which is a
shopping center Property and has been approved (or deemed approved, as hereafter
provided) as an Eligible Property by the Required Banks at the request of the
Borrower, taking into account the following information concerning the Property
provided to the Administrative Agent and the Banks by the Borrower: a physical
description, applicable environmental reports, information regarding its age,
location and occupancy, an operating statement and rent roll for the most recent
Fiscal Quarter, and an operating budget for the current Fiscal Year; provided,
however, that (i) any Property that has been proposed by the Borrower as an
Eligible Property shall be deemed approved as such unless, within 15 Domestic
Business Days after all of the foregoing information concerning such Property
has been delivered by the Borrower to the Administrative Agent and the Banks,
the Administrative Agent notifies the Borrower that the Required Banks have not
approved such Property as an Eligible Property; and (ii) any Eligible Property
shall be released in writing by the Administrative Agent as an Eligible Property
upon the written request of the Borrower, to enable the Borrower to sell or
obtain financing on such Eligible Property, so long as no Default or Event of
Default is in existence or would be caused thereby, and upon such release, such
Property shall no longer constitute Eligible Property.
"Eligible Unencumbered Stabilized Property" means any Eligible
Property which (I) is not subject to a Mortgage, and (ii) is a Stabilized
Property.
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"Environmental Authority" means any foreign, federal, state,
local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
"Environmental Permits" means all licenses, permits, orders,
approvals, notices or registrations, approvals or similar legal authorizations
for conducting the business of the Borrower/Parent or any Subsidiary required by
any Environmental Requirement.
"Environmental Judgments and Orders" means (i) all judgments,
decrees or orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent, or (ii) written agreements
with an Environmental Authority or other entity arising from or in any way
associated with any Environmental Requirement, whether or not incorporated in a
judgment, decree or order.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way associated with
any Environmental Requirements.
"Environmental Notices" means written notice from any
Environmental Authority or by any other person or entity, of Borrower's or any
Subsidiary's alleged noncompliance with or liability under any Environmental
Requirement, including without limitation any written complaints, citations,
demands or requests from any Environmental Authority or from any other person or
entity for correction of any violation of any Environmental Requirement or any
investigations concerning any violation of any Environmental Requirement.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated with any
Environmental Requirement.
"Environmental Releases" means releases as defined in CERCLA
or under any similar applicable state or local environmental law or regulation.
"Environmental Requirements" means any federal, state or local
laws and ordinances, regulations, writs, judgments, orders or Environmental
Permits relating to pollution or protection of the environment and applicable to
the Borrower/Parent, any Subsidiary or the Properties, including but not limited
to any such requirement under CERCLA, EPCRA, RCRA, the Clean Water Act, the
Clean Air Act, similar state or local requirements or common law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Euro-Dollar Loan" means a Loan which bears or is to bear
interest at a rate based upon the Adjusted London Interbank Offered Rate, and to
be made as a Euro-Dollar Loan pursuant to the applicable Notice of Borrowing or
Notice of Continuation or Conversion.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.07(c).
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"Executive Officer" refers to an executive officer of the
Borrower, and means the Chairman, the Vice Chairman, the President, the Chief
Financial Officer, Chief Accounting Officer or the Treasurer of the Borrower.
"Event of Default" has the meaning set forth in Section 6.01.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 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 the day for which
such rate is to be determined 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 such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to the Administrative Agent
on such day on such transactions, as determined by the Administrative Agent.
"Fiscal Quarter" means any fiscal quarter of the
Borrower/Parent.
"Fiscal Year" means any fiscal year of the Borrower/Parent.
"Fixed Rate Borrowing" means a Euro-Dollar Borrowing or a
Money Market Borrowing, or any or all of them, as the context shall require.
"Fixed Rate Loans" means Euro-Dollar Loans or Money Market
Loans, or any or all of them, as the context shall require.
"Foreign Currency Loans" means Loans made in a Foreign
Currency pursuant to the terms and conditions set forth in Section 2.01.
"Funding Indemnification Letter" means a letter agreement
substantially in the form of Exhibit P, duly executed by an Executive Officer of
the Borrower, pursuant to which (i) the Administrative Agent and the Borrower
shall have agreed upon the interest rate, amount of Borrowing and Interest
Period for any Fixed Rate Loan requested to be made on the anticipated Closing
Date, and (ii) the Borrower shall indemnify the Banks from any loss or expense
arising from the failure to close on the anticipated Closing Date identified in
such letter or the failure to borrow such Fixed Rate Loan on such date.
"Funds From Operations" has the meaning ascribed to such term
in preparation of financial statements for real estate investment trusts as
required by NAREIT from time to time, subject to Section 1.02.
"GAAP" means generally accepted accounting principles applied
on a basis consistent with those which, in accordance with Section 1.02, are to
be used in making the calculations for purposes of determining compliance with
the terms of this Agreement.
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"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 secure, 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 provide collateral security, 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.
"Guaranty" means, individually and collectively, as the
context shall require, the Guaranty Agreement of even date herewith in
substantially the form of Exhibit N to be executed by the Guarantors,
unconditionally and jointly and severally Guaranteeing payment of the Loans, the
Notes and all other obligations of the Borrower to the Administrative Agent and
the Banks hereunder, including without limitation all principal, interest, fees,
costs, and compensation and indemnification amounts.
"Guarantors" means any one or more or all of the following, as
the context shall require: (i) IRT Capital Corporation II, a Georgia
corporation, IRT Partners L.P., a Georgia limited partnership (subject to the
provisions of Section 5.28), IRT Management Company, a Georgia corporation, and
IRT Alabama, Inc., an Alabama corporation; and (ii) any Significant Subsidiary
which becomes a Guarantor pursuant to Section 5.27; (iii) any other Subsidiary
which elects to become a Guarantor pursuant to Section 5.27; in each case
subject to the provisions of the last sentence of Section 5.05, and (iv) from
and after the consummation of a Top Level Reorganization and the satisfaction of
the Top Level Reorganization Conditions, the Parent.
"Hazardous Materials" includes, without limitation, (a)
hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. ss. 6901 et seq. and its implementing regulations and
amendments, or in any similar applicable state or local law or regulation, (b)
"hazardous substance", "pollutant", or "contaminant" as defined in CERCLA, or in
any similar applicable state or local law or regulation, (c) gasoline, or any
other petroleum product or by-product, including, crude oil or any fraction
thereof, (d) toxic substances, as defined in the Toxic Substances Control Act of
1976, or in any similar applicable state or local law or regulation and (e)
insecticides, fungicides, or rodenticides, as defined in the Federal
Insecticide, Fungicide, and Rodenticide Act of 1975, or in any similar
applicable state or local law or regulation.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the first, second, third or sixth month
thereafter, as the Borrower may elect in the applicable Notice of Borrowing;
provided that:
(a) any Interest Period (subject to paragraph (c)
below) which would otherwise end on a day which is not a Euro-Dollar
Business Day shall be extended to the
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next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar Business
Day;
(b) any 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 appropriate subsequent
calendar month) shall, subject to paragraph (c) below, end on the last
Euro-Dollar Business Day of the appropriate subsequent calendar month;
and
(c) no Interest Period may be selected which begins
before the Termination Date and would otherwise end after the
Termination Date.
(2) with respect to each Money Market Borrowing, the period commencing on the
date of such Borrowing and ending on the Stated Maturity Date or such other date
or dates as may be specified in the applicable Money Market Quote; provided
that:
(a) any Interest Period (subject to clause (b) below)
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) no Interest Period may be selected which begins
before the Termination Date and would otherwise end after the
Termination Date.
"Investment" means any investment in any Person, whether by
means of (i) purchase or acquisition of all or substantially all of the assets
of such Person (or of a division or line of business of such Person), (ii)
purchase or acquisition of obligations or securities of such Person, (iii)
capital contribution to such Person, (iv) loan or advance to such Person, (v)
making of a time deposit with such Person, (vi) Guarantee or assumption of any
obligation of such Person or (vii) by any other means.
"Lending Office" means, as to each Bank, its office located at
its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such Bank
may hereafter designate as its Lending Office by notice to the Borrower and the
Administrative Agent.
"Lien" means, with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest, security
title, preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Agreement, the Borrower/Parent or any Subsidiary 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.
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"Liquidity Bank" means for any Designated Bank, at any date of
determination, the collective reference to the financial institutions which at
such date are providing liquidity or credit support facilities to or for the
account of such Designated Bank to fund such Designated Bank's obligations
hereunder or to support the securities, if any, issued by such Designated Bank
to fund such obligations.
"Loan" means a Base Rate Loan, Euro-Dollar Loan, Syndicated
Loan or Money Market Loan, and "Loans" means Base Rate Loans, Euro-Dollar Loans,
Syndicated Loans, Money Market Loans, or any or all of them, as the context
shall require.
"Loan Documents" means this Agreement, the Notes, the
Guaranty, the Contribution Agreement, any other document evidencing, relating to
or securing the Loans, and any other document or instrument delivered from time
to time in connection with this Agreement, the Notes or the Loans, as such
documents and instruments may be amended or supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.07(c).
"Margin Stock" means "margin stock" as defined in Regulations
T, U or X.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition or conditions, occurrence or occurrences, whether or not
related, a material adverse change in, or a material adverse effect upon, any of
(a) the financial condition, operations, business, properties or prospects of
the Borrower/Parent and its Consolidated Subsidiaries taken as a whole, (b) the
rights and remedies of the Administrative Agent or the Banks under the Loan
Documents, or the ability of the Borrower or the Parent to perform its
obligations under the Loan Documents to which it is a party, as applicable, or
(c) the legality, validity or enforceability of any Loan Document.
"Money Market Borrowing Date" has the meaning specified in
Section 2.03.
"Money Market Facility Limit" means an amount equal to 50% of
the aggregate Commitments, as such Commitments may be increased or reduced from
time to time.
"Money Market Loan Notes" means the promissory notes of the
Borrower, substantially in the form of Exhibit A-2, evidencing the obligation of
the Borrower to repay the Money Market Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Money Market Loans" means Loans made pursuant to the terms
and conditions set forth in Section 2.03.
"Money Market Quote" has the meaning specified in Section
2.03(c)(i).
"Money Market Quote Request" has the meaning specified in
Section 2.03(b).
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"Money Market Rate" has the meaning specified in Section
2.03(c)(ii)(C).
"Moody's" means Xxxxx'x Investor Service, Inc.
"Mortgage" means, with respect to any referenced Property or
other asset, a mortgage, deed to secure debt, deed of trust or similar
instrument encumbering such Property or other asset.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"NAREIT" means the National Association of Real Estate
Investment Trusts.
"Net Income" means, as applied to any Person for any period,
the aggregate amount of net income of such Person, after taxes, for such period,
as determined in accordance with GAAP.
"Net Operating Income" means, (A) for any Property, calculated
on a consolidated basis for the Borrower and the Guarantors, the sum of the
following derived from such Property: (i) Property revenues, less (ii) Property
expenses (excluding depreciation, amortization and debt service), less (iii) an
assumed management fee equal to 4% of gross rental income (less any management
fees included in Property expenses under clause (ii)) and less (iv) the ratable
portion allocable to the measurement period of an annual capital reserve equal
to $0.15 per square foot.
"Non-Wholly Owned Eligible Property" means Eligible Property
which is not wholly owned by the Borrower or any Guarantor, which is Venice
Plaza, Venice, Florida.
"Non-Wholly Owned Eligible Property Ownership Percentage"
refers to the ownership percentage which the Borrower and/or the Guarantors have
with respect to the Non-Wholly owned Eligible Property, which as of the Closing
Date is 75%.
"Notes" means each of the Syndicated Loan Notes or Money
Market Loan Notes, or any or all of them, as the context shall require.
"Notice of Borrowing" has the meaning set forth in Section
2.02(a).
"Notice of Continuation or Conversion" has the meaning set
forth in Section 2.04.
"Officer's Certificate" has the meaning set forth in Section
3.01(f).
"Operating Profits" means, as applied to any Person for any
period, the operating income of such Person for such period, as determined in
accordance with GAAP.
"Ownership Percentage" means, with respect to any Subsidiary
which is not a Wholly Owned Subsidiary, the percentage which the aggregate
beneficial ownership interests of the Borrower/Parent in such Subsidiary bears
to the aggregate beneficial ownership interests of all owners of beneficial
interests in such Subsidiary.
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"Parent" has the meaning set forth in Section 5.28, but
references in this Agreement and the other Loan Documents to Parent shall take
effect only upon consummation of the Top Level Reorganization and the
satisfaction of each of the Top Level Reorganization Conditions.
"Participant" has the meaning set forth in Section 9.08(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" has the meaning set
forth in Section 2.07(a).
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is either (i) maintained by a member
of the Controlled Group for employees of any member of the Controlled Group or
(ii) maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding 5 plan years made contributions.
"Prime Rate" refers to that interest rate so denominated and
set by Wachovia from time to time as an interest rate basis for borrowings. The
Prime Rate is but one of several interest rate bases used by Wachovia. Wachovia
lends at interest rates above and below the Prime Rate.
"Properties" means all real property owned, leased or
otherwise used or occupied by the Borrower or any Subsidiary, wherever located.
"Qualified Intermediary" means any Person serving as a
"qualified intermediary" for purposes of a Section 1031 Exchange.
"Quarterly Payment Date means each March 31, June 30,
September 30 and December 31, or, if any such day is not a Domestic Business
Day, the next succeeding Domestic Business Day.
"Redeemable Preferred Stock" of any Person means any preferred
stock issued by such Person which is at any time prior to the Termination Date
either (i) mandatorily redeemable (by sinking fund or similar payments or
otherwise) or (ii) redeemable at the option of the holder thereof.
"Refunding Loan" means a new Syndicated Loan made on the day
on which an outstanding Syndicated Loan is maturing or a Base Rate Borrowing is
being converted to a Fixed Rate Borrowing, if and to the extent that the
proceeds thereof are used for the purpose of paying
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such maturing Loan or Loan being converted, excluding any difference between the
amount of such maturing Loan or Loan being converted and any greater amount
being borrowed on such day and actually either being made available to the
Borrower pursuant to Section 2.02(c) or remitted to the Administrative Agent as
provided in Section 2.13, in each case as contemplated in Section 2.02(d).
"Regulation T" means Regulation T of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Related Fund" means, with respect to any Bank that is a fund
that invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Bank.
"Relinquished Property" means a Property sold to a Person
which is not the Borrower or an Affiliate thereof, and the proceeds of such sale
are held in an exchange account by a Qualified Intermediary, as part of a
Section 1031 Exchange.
"Replacement Property" means a Property acquired as a
replacement for a Relinquished Property as part of a Section 1031 Exchange.
"Reported Net Income" means, for any period, the Net Income of
the Borrower/Parent and its Consolidated Subsidiaries determined on a
consolidated basis.
"Required Banks" means at any time Banks having at least 66
2/3% of the aggregate amount of the Commitments or, if the Commitments are no
longer in effect, Banks holding at least 66 2/3% of the aggregate outstanding
principal amount of the sum of the (i) Syndicated Loans and (ii) Money Market
Loans.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower/Parent's Capital Stock (except
Dividends payable solely in shares of its Capital Stock) or (ii) any payment on
account of the purchase, redemption, retirement or acquisition of (a) any shares
of the Borrower/Parent's Capital Stock (except shares acquired upon the
conversion thereof into other shares of its Capital Stock) or (b) any option,
warrant or other right to acquire shares of the Borrower/Parent's Capital Stock.
"Section 0000 Xxxxxxxx" means a sale and exchange of a
Relinquished Property for a Replacement Property pursuant to and qualifying for
tax treatment under Section 1031 of the Code.
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"Significant Subsidiary" means any Subsidiary, other than IRT
Capital Corporation, which has assets which constitute more than 5% of
Consolidated Total Asset Value at the end of the most recent Fiscal Quarter (or,
with respect to any Subsidiary which existed during the entire 4 Fiscal Quarter
period but was acquired by the Borrower/Parent during such period, which would
have contributed more than 5% of Consolidated Total Asset Value during such
period had it been a Subsidiary for the entire period).
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc.
"Stabilized Property" means at any time any retail shopping
center Property owned by the Borrower or any Guarantor (i) which is at least 85%
leased and under which rent is being paid (pursuant to written leases which have
been signed by both landlord and tenant, but including any month to month
occupancy by any such tenant after the expiration of such written lease) or (ii)
with respect to which a final certificate of occupancy was issued at least 3
months prior to the date of measurement.
"Stated Maturity Date" means, with respect to any Money Market
Loan, the Stated Maturity Date therefor specified by the Bank in the applicable
Money Market Quote.
"Stock Buyback Plan" means any stock purchase or other stock
acquisition program approved by the board of directors (or any authorized
committee thereof) of the Borrower/Parent pursuant to which the Borrower/Parent
will purchase or otherwise acquire outstanding shares of the common stock of the
Borrower/Parent.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Borrower/Parent (including,
after the consummation of the Top Level Reorganization and the satisfaction of
the Top Level Reorganization Conditions, the then Borrower hereunder, IRT
Partners L.P.).
"Syndicated Loans" means Base Rate Loans or Euro-Dollar Loans
made pursuant to the terms and conditions set forth in Section 2.01.
"Syndicated Loan Notes" means the promissory notes of the
Borrower, substantially in the form of Exhibit A-1, evidencing the obligation of
the Borrower to repay Syndicated Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Taxes" has the meaning set forth in Section 2.13(c).
"Termination Date" means whichever is applicable of (i)
November 1, 2002, (ii) such later date to which it is extended by the Banks
pursuant to Section 2.06(b), in their sole and absolute discretion, (iii) the
date the Commitments are terminated pursuant to Section 6.01 following the
occurrence of an Event of Default, or (iv) the date the Borrower terminates the
Commitments entirely pursuant to Section 2.09.
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"Third Parties" means all lessees, sublessees, licensees and
other users of the Properties, excluding those users of the Properties in the
ordinary course of the Borrower's business and on a temporary basis.
"Transferee" has the meaning set forth in Section 9.08(d).
"Top Level Reorganization" has the meaning set forth in
Section 5.28.
"Top Level Reorganization Conditions" has the meaning set
forth in Section 5.28.
"Unfunded Vested Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the present value of all vested
nonforfeitable benefits under such Plan exceeds (ii) the fair market value of
all Plan assets allocable to such benefits, 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 Controlled Group to the PBGC
or the Plan under Title IV of ERISA.
"Unused Commitment" means at any date, with respect to any
Bank, an amount equal to its Commitment less the aggregate outstanding principal
amount of its Syndicated Loans (but not its Money Market Loans).
"Wachovia" means Wachovia Bank, N.A., a national banking
association, and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the
Borrower/Parent.
"Y2K Plan" has the meaning set forth in Section 4.19.
"Year 2000 Compliant and Ready" means that (a) the
Borrower's/Parent's and its Subsidiaries' hardware and software systems with
respect to the operation of its business and its general business plan will: (i)
handle date information involving any and all dates before, during and after
January 1, 2000, including accepting input, providing output and performing date
calculations in whole or in part; (ii) operate, accurately without material
interruption on and in respect of any and all dates before, during and after
January 1, 2000 and without any change in performance; (iii) store and provide
date input information without creating any ambiguity as to the century and; (b)
the Borrower/Parent has developed alternative plans to ensure business
continuity in the event of the failure of any or all of items (i) through (iii)
in clause (a) above in this definition.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS.
Unless otherwise specified herein, all terms of an accounting
character 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 GAAP, or with respect to the
calculation of Funds From Operations, as required by NAREIT, applied on a basis
consistent (except for changes concurred in by the Borrower/Parent's
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independent public accountants or otherwise required by a change in GAAP) with
the most recent audited consolidated financial statements of the Borrower/Parent
and its Consolidated Subsidiaries delivered to the Banks unless with respect to
any such change concurred in by the Borrower/Parent's independent public
accountants or required by GAAP or, with respect to the calculation of Funds
From Operations, as required by NAREIT, in determining compliance with any of
the provisions of this Agreement or any of the other Loan Documents: (i) the
Borrower shall have objected to determining such compliance on such basis at the
time of delivery of such financial statements, or (ii) the Required Banks shall
so object in writing within 30 days after the delivery of such financial
statements, in either of which events such calculations shall be made on a basis
consistent with those used in the preparation of the latest financial statements
as to which such objection shall not have been made (which, if objection is made
in respect of the first financial statements delivered under Section 5.01
hereof, shall mean the financial statements referred to in Section 4.04).
SECTION 1.03. REFERENCES.
Unless otherwise indicated, references in this Agreement to
"Articles", "Exhibits", "Schedules", "Sections" and other Subdivisions are
references to articles, exhibits, schedules, sections and other subdivisions
hereof.
SECTION 1.04. USE OF DEFINED TERMS.
All terms defined in this Agreement shall have the same
defined meanings when used in any of the other Loan Documents, unless otherwise
defined therein or unless the context shall require otherwise.
SECTION 1.05. TERMINOLOGY.
All personal pronouns used in this Agreement, whether used in
the masculine, feminine or neuter gender, shall include all other genders; the
singular shall include the plural, and the plural shall include the singular.
Titles of Articles and Sections in this Agreement are for convenience only, and
neither limit nor amplify the provisions of this Agreement.
ARTICLE II.
THE CREDITS
SECTION 2.01. COMMITMENTS TO LEND SYNDICATED LOANS.
Each Bank severally agrees, on the terms and conditions set
forth herein, to make Syndicated Loans to the Borrower from time to time before
the Termination Date; provided that,
(i) immediately after each such Syndicated Loan is
made, the aggregate outstanding principal amount of Syndicated Loans by
such Bank shall not exceed the amount of its Commitment, and
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(ii) the aggregate outstanding amount of all
Syndicated Loans and Money Market Loans shall not exceed the lesser of
(A) the aggregate amount of the Commitments and (B) the Borrowing Base.
Each Syndicated Borrowing under this Section shall be in an
aggregate principal amount of $1,000,000 or any larger integral multiple of
$500,000 (except that any such Syndicated Borrowing may be in the aggregate
amount of the Unused Commitments) and shall be made from the several Banks
ratably in proportion to their respective Commitments. Within the foregoing
limits, the Borrower may borrow under this Section, repay or, to the extent
permitted by Section 2.11, prepay Syndicated Loans and reborrow under this
Section at any time before the Termination Date.
SECTION 2.02. METHOD OF BORROWING SYNDICATED LOANS.
(a) The Borrower shall give the Administrative Agent notice (a
"Notice of Borrowing"), which shall be substantially in the form of Exhibit E-1,
prior to 11:00 A.M. (Atlanta, Georgia time), on the same Domestic Business Day
of each Base Rate Borrowing, and at least 3 Euro-Dollar Business Days before
each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Base Rate Borrowing or a
Euro-Dollar Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Syndicated Loans comprising such
Borrowing are to be Base Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Fixed Rate Borrowing, the
duration of the Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Administrative
Agent shall promptly notify each Bank of the contents thereof and of such Bank's
ratable share of such Syndicated Borrowing and such Notice of Borrowing, once
received by the Administrative Agent, shall not thereafter be revocable by the
Borrower.
(c) Not later than (i) 12:30 P.M. (Atlanta, Georgia time) as
to Base Rate Borrowings and (ii) 11:00 A.M. (Atlanta, Georgia time) as to
Euro-Dollar Borrowings, on the date of each Syndicated Borrowing, each Bank
shall (except as provided in paragraph (d) of this Section) make available its
ratable share of such Syndicated Borrowing, in Federal or other funds
immediately available in Atlanta, Georgia, to the Administrative Agent at its
address determined pursuant to Section 9.01. Unless the Administrative Agent
determines that any applicable condition specified in Article III has not been
satisfied, the Administrative Agent will make the funds so received from the
Banks available to the Borrower at the Administrative Agent's aforesaid address.
Unless the Administrative Agent receives notice from a Bank, at the
Administrative Agent's address referred to in or specified pursuant to Section
9.01, no later than 4:00 P.M. (local time at such address) on the Domestic
Business Day before the date of a Syndicated Borrowing stating that such Bank
will not make a Syndicated Loan in connection
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with such Syndicated Borrowing, the Administrative Agent shall be entitled to
assume that such Bank will make a Syndicated Loan in connection with such
Syndicated Borrowing and, in reliance on such assumption, the Administrative
Agent may (but shall not be obligated to) make available such Bank's ratable
share of such Syndicated Borrowing to the Borrower for the account of such Bank.
If the Administrative Agent makes such Bank's ratable share available to the
Borrower and such Bank does not in fact make its ratable share of such
Syndicated Borrowing available on such date, the Administrative Agent shall be
entitled to recover such Bank's ratable share from such Bank or the Borrower
(and for such purpose shall be entitled to charge such amount to any account of
the Borrower maintained with the Administrative Agent), together with interest
thereon for each day during the period from the date of such Syndicated
Borrowing until such sum shall be paid in full at a rate per annum equal to the
rate at which the Administrative Agent determines that it obtained (or could
have obtained) overnight Federal funds to cover such amount for each such day
during such period, provided that (i) any such payment by the Borrower of such
Bank's ratable share and interest thereon shall be without prejudice to any
rights that the Borrower may have against such Bank and (ii) until such Bank has
paid its ratable share of such Syndicated Borrowing, together with interest
pursuant to the foregoing, it will have no interest in or rights with respect to
such Syndicated Borrowing for any purpose hereunder. If the Administrative Agent
does not exercise its option to advance funds for the account of such Bank, it
shall forthwith notify the Borrower of such decision.
(d) If any Bank makes a new Syndicated Loan hereunder on a day
on which the Borrower is to repay all or any part of an outstanding Syndicated
Loan from such Bank, such Bank shall apply the proceeds of its new Syndicated
Loan to make such repayment as a Refunding Loan and only an amount equal to the
difference (if any) between the amount being borrowed and the amount of such
Refunding Loan shall be made available by such Bank to the Administrative Agent
as provided in paragraph (c) of this Section, or remitted by the Borrower to the
Administrative Agent as provided in Section 2.13, as the case may be.
(e) Notwithstanding anything to the contrary contained in this
Agreement, no Fixed Rate Borrowing may be made if there shall have occurred a
Default or an Event of Default, which Default or Event of Default shall not have
been cured or waived, and all Refunding Loans shall be made as Base Rate Loans
(but shall bear interest at the Default Rate, if applicable).
(f) In the event that a Notice of Borrowing fails to specify
whether the Syndicated Loans comprising such Syndicated Borrowing are to be Base
Rate Loans or Euro-Dollar Loans, such Syndicated Loans shall be made as Base
Rate Loans. If the Borrower is otherwise entitled under this Agreement to repay
any Syndicated Loans maturing at the end of an Interest Period applicable
thereto with the proceeds of a new Borrowing, and the Borrower fails to repay
such Syndicated Loans using its own moneys and fails to give a Notice of
Borrowing in connection with such new Syndicated Borrowing, a new Syndicated
Borrowing shall be deemed to be made on the date such Syndicated Loans mature in
an amount equal to the principal amount of the Syndicated Loans so maturing, and
the Syndicated Loans comprising such new Syndicated Borrowing shall be Base Rate
Loans.
(g) Notwithstanding anything to the contrary contained herein,
there shall not be more than 8 Interest Periods outstanding at any given time.
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SECTION 2.03. MONEY MARKET LOANS.
(a) In addition to making Syndicated Borrowings, so long as
the Debt Rating is BBB- and Baa3 or higher, the Borrower may, as set forth in
this Section 2.03, request the Banks to make offers to make Money Market
Borrowings available to the Borrower. The Banks may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section
2.03, provided that:
(i) the number of Interest Periods applicable to Money
Market Loans which may be outstanding at any given time is subject to
the provisions of Section 2.02(g);
(ii) the aggregate principal amount of all Money Market
Loans, (A) do not exceed the Money Market Facility Limit, and (B)
together with the aggregate principal amount of all Syndicated Loans at
any one time outstanding shall not exceed the aggregate amount of the
Commitments of all of the Banks at such time; and
(iii) The Money Market Loans of any Bank will be deemed to be
usage of the Commitments for the purpose of calculating availability
pursuant to Section 2.01(a)(ii), but will not reduce such Bank's
obligation to lend its pro rata share of the remaining Unused
Commitment.
(b) When the Borrower wishes to request offers to make Money
Market Loans, it shall give the Administrative Agent (which shall promptly
notify the Banks) notice substantially in the form of Exhibit I hereto (a "Money
Market Quote Request") so as to be received no later than 11:00 A.M. (Atlanta,
Georgia time) at least 2 Domestic Business Days prior to the date of the Money
Market Borrowing proposed therein (or such other time and date as the Borrower
and the Administrative Agent, with the consent of the Required Banks, may
agree), specifying:
(i) the proposed date of such Money Market Borrowing, which
shall be a Euro-Dollar Business Day (the "Money Market Borrowing
Date");
(ii) the maturity date (or dates) (each a "Stated Maturity
Date") for repayment of each Money Market Loan to be made as part of
such Money Market Borrowing (which Stated Maturity Date shall be that
date occurring not less than 7 days but not more than 180 days from the
date of such Money Market Borrowing); provided that the Stated Maturity
Date for any Money Market Loan may not extend beyond the Termination
Date (as in effect on the date of such Money Market Quote Request); and
(iii) the aggregate amount of principal to be requested by the
Borrower as a result of such Money Market Borrowing, which shall be at
least $1,000,000 (and in larger integral multiples of $500,000) but
shall not cause the limits specified in Section 2.03(a) to be violated.
The Borrower may request offers to make Money Market Loans having up to 2
different Stated Maturity Dates in a single Money Market Quote Request; provided
that the request for each separate Stated Maturity Date shall be deemed to be a
separate Money Market Quote Request for
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a separate Money Market Borrowing. Except as otherwise provided in the
immediately preceding sentence, after the first Money Market Quote Request has
been given hereunder, no Money Market Quote Request shall be given until at
least 5 Domestic Business Days after all prior Money Market Quote Requests have
been fully processed by the Administrative Agent, the Banks and the Borrower
pursuant to this Section 2.03.
(c) (i) Each Bank may, but shall have no obligation to,
submit a response containing an offer to make a Money Market Loan substantially
in the form of Exhibit J hereto (a "Money Market Quote") in response to any
Money Market Quote Request; provided that, if the Borrower's request under
Section 2.03(b) specified more than 1 Stated Maturity Date, such Bank may, but
shall have no obligation to, make a single submission containing a separate
offer for each such Stated Maturity Date and each such separate offer shall be
deemed to be a separate Money Market Quote. Each Money Market Quote must be
submitted to the Administrative Agent not later than 11:00 A.M. (Atlanta,
Georgia time) on the Money Market Borrowing Date; provided that any Money Market
Quote submitted by Wachovia may be submitted, and may only be submitted, if
Wachovia notifies the Borrower of the terms of the offer contained therein not
later than 10:45 A.M. (Atlanta, Georgia time) on the Money Market Borrowing Date
(or 15 minutes prior to the time that the other Banks are required to have
submitted their respective Money Market Quotes). Subject to Section 6.01, any
Money Market Quote so made shall be irrevocable except with the written consent
of the Administrative Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall specify:
(A) the proposed Money Market Borrowing Date and the
Stated Maturity Date therefor;
(B) the principal amounts of the Money Market Loan
which the quoting Bank is willing to make for the applicable Money
Market Quote, which principal amounts (x) may be greater than or less
than the Commitment of the quoting Bank, (y) shall be at least
$1,000,000 or a larger integral multiple of $500,000, and (z) may not
exceed the principal amount of the Money Market Borrowing for which
offers were requested;
(C) the rate of interest per annum (rounded upwards,
if necessary, to the nearest 1/100th of 1%) offered for each such Money
Market Loan (such amounts being hereinafter referred to as the "Money
Market Rate"); and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Administrative Agent and the
Borrower, no Money Market Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth in the
applicable Money Market Quote Request (other than setting forth the principal
amounts of the Money Market Loan which the quoting Bank is willing to make for
the applicable Interest Period) and, in particular, no Money Market Quote may be
conditioned upon acceptance by the Borrower of all (or some specified minimum)
of the
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principal amount of the Money Market Loan for which such Money Market
Quote is being made.
(d) The Administrative Agent shall as promptly as practicable
after the Money Market Quote is submitted (but in any event not later than
11:30 A.M. (Atlanta, Georgia time)) on the Money Market Borrowing Date, notify
the Borrower of the terms (i) of any Money Market Quote submitted by a Bank that
is in accordance with Section 2.03(c) and (ii) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market Quote Request. Any
such subsequent Money Market Quote shall be disregarded by the Administrative
Agent unless such subsequent Money Market Quote is submitted solely to correct a
manifest error in such former Money Market Quote. The Administrative Agent's
notice to the Borrower shall specify (A) the principal amounts of the Money
Market Borrowing for which offers have been received and (B) the respective
principal amounts and Money Market Rates so offered by each Bank (identifying
the Bank that made each Money Market Quote).
(e) Not later than 12:00 P.M. (Atlanta, Georgia time) on the
Money Market Borrowing Date, the Borrower shall notify the Administrative Agent
of its acceptance or nonacceptance of the offers so notified to it pursuant to
Section 2.03(d) and the Administrative Agent shall promptly notify each Bank
which submitted an offer. In the case of acceptance, such notice shall specify
the aggregate principal amount of offers (for each Stated Maturity Date) that
are accepted. The Borrower may accept any Money Market Quote in whole or in
part; provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request;
(ii) the aggregate principal amount of each Money Market Loan
comprising a Money Market Borrowing shall be at least $1,000,000 (and
in larger integral multiples of $500,000) but shall not cause the
limits specified in Section 2.03(a) to be violated;
(iii) acceptance of offers may only be made in ascending order
of Money Market Rates; and
(iv) the Borrower may not accept any offer where the
Administrative Agent has advised the Borrower that such offer fails to
comply with Section 2.03(c)(ii) or otherwise fails to comply with the
requirements of this Agreement (including without limitation, Section
2.03(a)).
If offers are made by 2 or more Banks with the same Money Market Rates for a
greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Stated Maturity Date, the principal amount of Money
Market Loans in respect of which such offers are accepted shall be allocated by
the Borrower among such Banks as nearly as possible in proportion to the
aggregate principal amount of such offers. Determinations by the
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Borrower of the amounts of Money Market Loans shall be conclusive in the absence
of manifest error.
(f) Any Bank whose offer to make any Money Market Loan has
been accepted shall, not later than 1:00 P.M. (Atlanta, Georgia time) on the
Money Market Borrowing Date, make the amount of such Money Market Loan allocated
to it available to the Administrative Agent at its address referred to in
Section 9.01 in immediately available funds. The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower on such date by depositing the
same, in immediately available funds, not later than 4:00 P.M. (Atlanta, Georgia
time), in an account of such Borrower maintained with Wachovia.
(g) After any Money Market Loan has been funded, the
Administrative Agent shall notify the Banks of the aggregate principal amount of
the Money Market Quotes received and the highest and lowest rates included in
such Money Market Quotes.
(h) For any Bank which is a Designating Bank, any Money Market
Loan to be made by such Bank may from time to time be made by its Designated
Bank in such Designated Bank's sole discretion, and nothing herein shall
constitute a commitment to make Money Market Loans by such Designated Bank;
provided, that if any Designated Bank elects not to, or fails to, make any such
Money Market Loan that has been accepted by the Borrower in accordance with the
foregoing, its Designating Bank hereby agrees that it shall make such Money
Market Loan pursuant to the terms hereof.
SECTION 2.04. CONTINUATION AND CONVERSION ELECTIONS.
By delivering a notice (a "Notice of Continuation or
Conversion"), which shall be substantially in the form of Exhibit E-2, to the
Administrative Agent on or before 12:00 P.M., Atlanta, Georgia time, on a
Domestic Business Day (or Euro-Dollar Business Day, in the case of Euro-Dollar
Loans outstanding), the Borrower may from time to time irrevocably elect, by
notice on the same Domestic Business Day, in the case of Base Rate Loans, or 3
Euro-Dollar Business Days, in the case of Euro-Dollar Loans, that all, or any
portion in an aggregate principal amount of $1,000,000 or any larger integral
multiple of $500,000 be, (i) in the case of Base Rate Loans, converted into
Euro-Dollar Loans or, (ii) in the case of Euro-Dollar Loans, converted into Base
Rate Loans or continued as Euro-Dollar Loans (in the absence of delivery of a
Notice of Continuation or Conversion with respect to any Euro-Dollar Loan at
least 3 Euro-Dollar Business Days before the last day of the then current
Interest Period with respect thereto, such Euro-Dollar Loan shall, on such last
day, automatically convert to a Base Rate Loan); provided, however, that (x)
each such conversion or continuation shall be pro rated among the applicable
outstanding Loans of all Lenders that have made such Loans, and (y) no portion
of the outstanding principal amount of any Loans may be continued as, or be
converted into, any Fixed Rate Loan when any Event of Default has occurred and
is continuing.
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SECTION 2.05. NOTES.
(a) The Syndicated Loans of each Bank shall be evidenced by a
single Syndicated Loan Note payable to the order of such Bank for the account of
its Lending Office in an amount equal to the original principal amount of such
Bank's Commitment.
(b) The Money Market Loans made by any Bank to the Borrower
shall be evidenced by a single Money Market Loan Note payable to the order of
such Bank for the account of its Lending Office in an amount equal to the Money
Market Facility Limit.
(c) Upon receipt of each Bank's Notes pursuant to Section
3.01, the Administrative Agent shall deliver such Notes to such Bank. Each Bank
shall record, and prior to any transfer of its Notes shall endorse on the
schedules forming a part thereof appropriate notations to evidence, the date,
amount and maturity of, and effective interest rate for, each Loan made by it,
the date and amount of each payment of principal made by the Borrower with
respect thereto, and such schedules of each such Bank's Notes shall constitute
rebuttable presumptive evidence of the respective principal amounts owing and
unpaid on such Bank's Notes; provided that the failure of any Bank to make, or
any error in making, any such recordation or endorsement shall not affect the
obligation of the Borrower hereunder or under the Notes or the ability of any
Bank to assign its Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Notes and to attach to and make a part of any Note a
continuation of any such schedule as and when required.
SECTION 2.06. MATURITY OF LOANS.
(a) Each Fixed Rate Loan included in any Borrowing shall
mature, and the principal amount thereof shall be due and payable, on the last
day of the Interest Period applicable to such Borrowing.
(b) Notwithstanding the foregoing, the outstanding principal
amount of the Loans, if any, together with all accrued but unpaid interest
thereon, if any, shall be due and payable on November 1, 2002, unless the
Termination Date is otherwise extended by the Banks, in their sole and absolute
discretion. Upon the written request of the Borrower, which request shall be
delivered to the Administrative Agent at least 60 days prior to the Extension
Date (as such term is hereinafter defined), the Banks shall have the option
(without any obligation whatsoever so to do) of extending the Termination Date
for an additional one-year period on November 1, 2000 and November 1, 2001 (each
an "Extension Date"). Each Bank shall notify the Borrower and the Administrative
Agent at least 30 days prior to the relevant Extension Date whether or not it
chooses to extend the Termination Date for such an additional one-year period
(but any Bank which fails to give such notice within such period shall be deemed
not to have extended); provided, that the Termination Date shall not be extended
with respect to any of the Banks unless:
(i) the Required Banks are willing to extend the Termination
Date; and
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(ii) on or before the relevant Extension Date, as to
the Commitment of any Bank which gave notice that it chooses not to
extend, or which is deemed pursuant to the foregoing not to have
extended (any such Bank being a "Terminating Bank"), one of the
following shall occur:
(x) the remaining Banks shall purchase
ratable assignments (without any obligation so to do)
from such Terminating Bank (in the form of an
Assignment and Acceptance) in accordance with their
respective percentage of the remaining Aggregate
Commitments; provided, that, such Banks shall be
provided such opportunity (which opportunity shall
allow such Banks at least 5 Domestic Business Days in
which to make a decision) prior to the Borrower
finding another bank pursuant to the immediately
succeeding clause (y); and, provided, further, that,
should any of the remaining Banks elect not to
purchase such an assignment, then, such other
remaining Banks shall be entitled to purchase an
assignment from any Terminating Bank which includes
the ratable interest that was otherwise available to
such non-purchasing remaining Bank or Banks, as the
case may be, or
(y) the Borrower shall find another bank,
acceptable to the Administrative Agent, willing to
accept an assignment from such Terminating Bank (in
the form of an Assignment and Acceptance) on or
before the Extension Date, or
(z) the Borrower shall reduce the aggregate
Commitments in an amount equal to the Commitment of
any such Terminating Bank.
In the event of any extension pursuant to the foregoing, on the
relevant Extension Date, the Borrower shall pay to the Administrative
Agent, for the ratable account of the Banks, an extension fee equal to
0.15% of the aggregate amount of the Commitments in effect on such
relevant Extension Date.
SECTION 2.07. INTEREST RATES.
(a) "Applicable Margin" means:
(i) for the period commencing on the Closing Date to and
including the first Performance Pricing Determination Date, (x) for any Base
Rate Loan, 0.00%, and (y) for any Euro-Dollar Loan, 1.15%; and
(ii) from and after the first Performance Pricing
Determination Date, (x) for any Base Rate Loan, 0.00% and (y) for each
Euro-Dollar Loan, the percentage determined on each Performance Pricing
Determination Date by reference to the table set forth below as to such type of
Loan and the Debt Rating on such Performance Pricing Determination Date;
provided, that if there is no Debt Rating, the Applicable Margin for Euro-Dollar
Loans shall be based upon Level V of the table below.
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=============================================================================================================
XXXXX XXXXX XXXXX XXXXX XXXXX
X II III IV V
=============================================================================================================
>=BBB >=BBB-
>=BBB+ or Baa2 or Baa3 =A- or Baa1 but but or
but =BBB >=BBB-
>=BBB+ or Baa2 or Baa3 =A- or Baa1 but but or
but
