Exhibit 10.30
CREDIT AGREEMENT
among
COLONIAL REALTY LIMITED PARTNERSHIP
as Borrower
and
COLONIAL PROPERTIES TRUST
as Guarantor
and
SOUTHTRUST BANK
as Managing Agent
and
THE LENDERS IDENTIFIED HEREIN
WACHOVIA BANK, NATIONAL ASSOCIATION
As Administrative Agent
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Documentation Agent
and
AMSOUTH BANK
as Syndication Agent
and
PNC BANK, NATIONAL ASSOCIATION
as Co-Agent
DATED AS OF NOVEMBER 22, 2002
TABLE OF CONTENTS
Table of Contents
Page
Article 1 DEFINITIONS.......................................................1
Article 2 REVOLVING LOAN...................................................15
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2.1 Disbursement of Revolving Advances.......................15
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2.2 The Revolving Notes......................................16
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2.3 Payments.................................................16
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2.4 Interest Rate............................................16
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2.5 Prepayment...............................................17
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2.6 Fees.....................................................17
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2.7 Termination by Borrower of the Revolving Loan............17
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2.8 Procedure for Revolving Advances Under Revolving Loan....18
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Article 3 LETTER OF CREDIT SUBFACILITY.....................................20
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3.1 Issuance and Maintenance of Letters of Credit............20
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3.2 Reimbursement Obligation of Borrower.....................21
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3.3 Commissions and Fees.....................................21
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3.4 Reimbursement Obligation Absolute........................22
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3.5 Surrender of Letter of Credit............................22
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Article 4 COMPETITIVE BID SUBFACILITY......................................22
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4.1 Competitive Bid Option...................................22
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4.2 Competitive Bid Quote Request............................23
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4.3 Invitation for Competitive Bid Quotes....................23
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4.4 Submission and Contents of Competitive Bid Quotes........23
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4.5 Notice to Borrower.......................................24
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4.6 Acceptance and Notice by Borrower........................25
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4.7 Interest Rate and Payments...............................25
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4.8 Prepayment...............................................25
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Article 5 SWING LOAN.......................................................25
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5.1 Disbursement of Swing Loan Advances......................25
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5.2 The Swing Loan Note......................................26
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5.3 Payments.................................................26
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5.4 Interest Rate............................................26
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5.5 Prepayment...............................................26
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5.6 Termination by Borrower of the Swing Loan................26
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5.7 Procedure for Swing Loan Advances........................26
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Article 6 GENERAL PROVISIONS RELATING TO...................................27
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ALL LOANS AND LETTERS OF CREDIT............................................27
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6.1 Interest Calculation; Late Charge; Default Rate..........27
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6.2 Use of Proceeds..........................................28
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6.3 Place, Manner, Time and Extension of Payment.............28
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6.4 Obligation to Pay Loans Absolute.........................28
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6.5 Application of Payments..................................28
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6.6 Capital Adequacy.........................................30
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6.7 Inability to Determine Interest Rate.....................31
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6.8 Increased Costs..........................................31
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6.9 Continuation and Conversion Elections....................31
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6.10 Funding Losses; Prepayment...............................32
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6.11 Expansion of Facility....................................33
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6.12 Term.....................................................33
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6.13 Miscellaneous............................................34
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6.14 Discontinuance of Advances...............................34
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Article 7 GUARANTY.........................................................34
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7.1 Guaranty of Payment......................................34
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7.2 Obligations Unconditional................................35
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7.3 Modifications............................................36
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7.4 Waiver of Rights.........................................36
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7.5 Reinstatement............................................36
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7.6 Remedies.................................................36
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Article 8 CONDITIONS PRECEDENT TO MAKING ADVANCES, SWING LOAN ADVANCES,
OR ISSUING LETTERS OF CREDIT.....................................37
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Article 9 REPRESENTATIONS AND WARRANTIES...................................39
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9.1 Existence, Power and Qualification.......................39
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9.2 Authority to Borrow Hereunder............................39
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9.3 Due Execution and Enforceability.........................39
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9.4 No Conflict..............................................40
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9.5 Material Claims..........................................40
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9.6 Financial Statements Accurate............................40
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9.7 No Defaults or Restrictions..............................40
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9.8 Payment of Taxes.........................................40
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9.9 Necessary Permits, Etc...................................40
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9.10 Regulation U.............................................41
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9.11 Title to Assets..........................................41
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9.12 Compliance with Applicable Environmental Law.............41
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9.13 Disclosure...............................................42
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9.14 Insolvency...............................................42
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9.15 ERISA....................................................42
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9.16 Existing Debt............................................42
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Article 10 AFFIRMATIVE COVENANTS...........................................42
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10.1 Payment of Loans and Reimbursement Obligation; Maintenance
of Maximum Borrowing Base................................42
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10.2 Insurance................................................43
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10.3 Maintenance of Existence.................................43
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10.4 Compliance with Laws; Payment of Claims..................43
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10.5 Accrual and Payment of Taxes.............................43
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10.6 Maintenance of Properties................................43
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10.7 Other Indebtedness.......................................43
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10.8 Examination and Visitation By Lenders....................44
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10.9 Accounting Records.......................................44
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10.10 Maintenance of Permits, Etc..............................44
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10.11 Conduct Business.........................................44
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10.12 Correction of Defect, Etc................................44
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10.13 Financial and Other Information..........................44
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10.14 Compliance Certificate...................................45
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10.15 Employee Plan Reports and Notices........................46
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10.16 Ownership................................................46
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10.17 REIT Status..............................................46
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10.18 Ratings..................................................46
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10.19 Registration of Stock of CLP.............................46
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10.20 Key Officers.............................................46
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10.21 Environmental Laws.......................................46
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10.22 Newly formed Significant Subsidiaries of CLP as
Guarantors...............................................48
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Article 11 NEGATIVE COVENANTS..............................................48
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11.1 Debt.....................................................49
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11.2 Merger, Consolidation, Etc...............................49
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11.3 Sale or Disposition of Substantially All Assets..........49
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11.4 Other Disposition of Assets..............................49
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11.5 ERISA Funding and Termination............................49
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11.6 Transactions with Affiliates.............................49
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11.7 Distributions............................................50
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11.8 Financial Covenants:.....................................50
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11.9 Change in Business.......................................51
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11.10 Changes in Accounting; Fiscal Year.......................51
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11.11 Loans or Advances........................................51
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11.12 Investments..............................................51
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11.13 Change in Management.....................................52
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Article 12 EVENTS OF DEFAULT AND REMEDIES..................................52
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12.1 Events of Default........................................52
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12.2 Remedies.................................................54
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Article 13 AGENCY PROVISIONS...............................................55
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13.1 Appointment..............................................55
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13.2 Delegation of Duties.....................................55
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13.3 Exculpatory Provisions...................................55
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13.4 Reliance on Communications...............................56
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13.5 Notice of Default; Default by Credit Parties.............56
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13.6 Non-Reliance on Agent and Other Lenders..................57
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13.7 Indemnification..........................................58
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13.8 Agent in Its Individual Capacity.........................58
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13.9 Successor Agent..........................................58
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13.10 Reimbursement of Expenses................................59
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13.11 Resignation or Removal of Agent..........................59
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Article 14 PARTICIPATIONS, ASSIGNMENTS, AND SETOFF.........................59
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14.1 Participations...........................................59
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14.2 Assignment...............................................60
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14.3 Right to Purchase........................................62
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14.4 Setoff...................................................62
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Article 15 GENERAL PROVISIONS..............................................63
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15.1 Notices..................................................63
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15.2 Amendments, Waiver, and Consents.........................63
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15.3 Defaulting Lender........................................64
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15.4 Consent of Lenders.......................................64
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15.5 Other Loans by Lenders to Credit Parties.................64
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15.6 Time.....................................................65
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15.7 No Control By Lenders....................................65
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15.8 No Waiver By Lenders, Etc................................65
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15.9 Lenders' Expenses........................................65
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15.10 GAAP.....................................................66
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15.11 Number and Gender........................................66
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15.12 Headings.................................................66
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15.13 Survival of Covenants, Etc...............................66
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15.14 Successors and Assigns...................................66
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15.15 Severability of Provisions...............................66
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15.16 Entire Agreement, Counterparts...........................66
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15.17 Trustees Not Liable for Obligations of CLP...............67
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15.18 Certain Provisions.......................................67
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15.19 EUPP Liability...........................................67
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15.20 Termination of Prior Credit Agreement....................67
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15.21 Controlling Law; Consent to Venue........................67
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15.22 Waiver of Jury Trial.....................................68
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Agreement") dated as of November 22, 2002,
is among COLONIAL REALTY LIMITED PARTNERSHIP, a Delaware limited partnership
("Borrower" or "CRLP"); COLONIAL PROPERTIES TRUST, an Alabama trust ("CLP"), the
Lenders (as defined herein), and SOUTHTRUST BANK, an Alabama banking corporation
("SouthTrust"), as Agent for the Lenders.
AGREEMENT:
NOW, THEREFORE, the parties agree as follows:
Article 1.........
DEFINITIONS
In addition to the terms defined in the introductory paragraph, the
following terms shall have the following respective meanings:
"Adjusted London Interbank Offered Rate" means a rate per annum,
applicable to any Interest Period, equal to the quotient obtained (rounded
upwards, if necessary, to the next higher 1/100th of 1%) by dividing (i) the
applicable London Interbank Offered Rate for such Interest Period by (ii) 1.00
minus the Euro-Dollar Reserve Percentage (Adjusted London Interbank Offered Rate
shall be adjusted automatically on and as of the effective date of any change in
the Euro-Dollar Reserve Percentage).
"Administrative Agent" shall mean Wachovia Bank, National Association
The title of Administrative Agent shall be in name only.
"Advance" means a Revolving Advance or a Competitive Bid Advance, as
the case may be.
"Affiliate" means any Person which, directly or indirectly, controls,
or is controlled by, or is under common control with, another Person. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with"), as used with any
person means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person whether
through the ownership of voting securities or by contract or otherwise.
"Agent" means SouthTrust (or any successor thereto), or any successor
agent appointed pursuant to Section 13.9 Notwithstanding the fact that other
Lenders may in some limited capacity serve as a type of agent for this
Agreement, the term "Agent" as used herein shall refer solely to SouthTrust.
"Agreement" or "Credit Agreement" means this Agreement, as the same may
hereafter be modified or amended.
"Anniversary Date" means each anniversary of the Closing Date.
"Applicable Environmental Law" means any statutory law or case law
pertaining to health or the environment, or petroleum products, or oil, or
hazardous substances, including without limitation the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as codified at
42 U.S.C. ss. 9601 et. seq.; the Resource Conservation and Recovery Act of 1976,
as amended, as codified at 42 U.S.C. ss. 6901 et seq.; the Superfund Amendments
and Reauthorization Act of 1986, as codified at 42 U.S.C. ss. 9671, et seq.; and
any state or local law, regulation or ordinance pertaining to such matters.
"Base Rate" means the rate of interest designated by SouthTrust
periodically as its Base Rate. The Base Rate is not necessarily the lowest rate
charged by SouthTrust.
"Base Rate Advance" means an advance of a Base Rate Loan.
"Base Rate Loan" means a Loan which bears or is to bear interest at a
rate based upon the Base Rate, and to be made as a Base Rate Loan pursuant to
the applicable Notice of Borrowing or Notice of Continuation or Conversion.
"Borrowing Date" means the date an Advance is to be disbursed
hereunder.
"Capitalization Rate" means 9.00% for multifamily Properties, 9.50% for
strip shopping centers Properties, 8.50% for all enclosed shopping mall
Properties and 9.50% for office complex Properties, as such rates may be
adjusted by Lenders on each anniversary of the Closing Date based upon then
current market conditions. Agent shall give Borrower prompt written notice of
any such adjustments.
"Cash Management Agreements" means that certain Cash Management Service
Agreement dated November 16, 1994, between Borrower and SouthTrust and exhibits
thereto providing for Automatic Loan Adjustment Service, Account Reconcilement
Service, Controlled Disbursement Service, SouthLink Service, Zero Balance
Account Service, and Automated Clearing House Service, and any agreement given
in renewal of, substitution for, or as a supplement to, any of the foregoing, or
any agreement entered into by Borrower relating to its cash management
arrangements with SouthTrust.
"Closing Date" means the date of this Agreement.
"Co-Agent" shall mean PNC Bank, National Association. The title of
Co-Agent shall be in name only.
"Colonial Investments" means the amount of any investment by any Credit
Party in any unconsolidated Person, whether by means of purchase or acquisition
of obligations or securities of such Person, capital contribution to such
Person, loan or advance to such Person or making of a time deposit with such
Person.
"Commitment Period" means the period of time during which Lenders shall
be committed to make Advances to Borrower and SouthTrust shall be obligated to
make Swing Loan Advances to Borrower, and shall be from the Closing Date until
the Commitment Termination Date.
"Commitment Termination Date" means the first to occur of (i) the date
that Lenders, by reason of an Event of Default, suspend the making of further
Advances, or SouthTrust, by reason of Event of Default, suspends the making of
Swing Loan Advances, (ii) the Maturity Date (or if extended, then the Maturity
Extension Date), or (iii) the date that the Revolving Loan is terminated by
Borrower as provided in Section 2.7. hereof.
"Competitive Bid Advance" means an advance by a Lender pursuant to
Article 4.
"Competitive Bid Loan" means a loan made by some or all of the Lenders
pursuant to Article 4 hereof, together with accrued interest thereon and other
agreed charges as shall be outstanding at any given time, which shall be due and
owing on or before the Stated Maturity Date.
"Competitive Bid Note" means a promissory note in substantially the
form of Exhibit A attached hereto, with appropriate insertions, evidencing a
Competitive Bid Loan, duly executed and delivered to Agent by Borrower for the
account of a Lender and payable to the order of such Lender, together with any
renewals, extensions, modifications, or amendments to such promissory note.
"Competitive Bid Quote" means a Competitive Bid Quote in substantially
the form of Exhibit B attached hereto, completed and delivered by a Lender to
Agent in accordance with Section 4.2.
"Competitive Bid Quote Request" means Competitive Bid Quote Request in
substantially the form of Exhibit C attached hereto, completed and delivered by
Borrower to Agent in accordance with Section 4.2.
"Compliance Certificate" means the certificate in the form of Exhibit E
hereto completed and delivered by Credit Parties to Agent in accordance with
Section 10.14.
"Construction in Process" means (i) any Property which is in the
process of being developed but is not classified as a Stabilized Property or
Non-Stabilized Property and (ii) the redevelopment costs associated with any
Property, which in the case of either (i) or (ii) is calculated on a
consolidated basis for the Borrower and the Guarantors and which is the
Construction in Process as shown from time to time on the books and records of
the Borrower and the Guarantors, maintained in accordance with GAAP.
"Corporate Recurring Income" means recurring income received by one or
more Subsidiaries of any of the Credit Parties for sales commissions, leasing
fees, and management fees relating to any Property not wholly owned by a Credit
Party.
"Credit Documents" means collectively this Agreement, the Notes, the
Letters of Credit, the Letters of Credit Agreements, any guaranty agreement
provided pursuant to Section 7.1, and any other documents or instruments now or
hereafter executed by Borrower or others evidencing, securing, or relating to
the Loans or the Letters of Credit.
"Credit Parties" means, collectively, the Borrower and Guarantors.
"Credit Party Obligations" means all principal, interest, fees,
charges, expenses, attorneys' fees and expenses and other indebtedness and
obligations of the Credit Parties to SouthTrust, the Lenders and the Agent,
whenever arising, under this Credit Agreement, the Notes, or any of the other
Credit Documents, as any of the same may hereafter be amended or extended.
"Debt" means the total indebtedness of Credit Parties, determined in
accordance with GAAP.
"Debt Rating" has the meaning set forth herein in the chart in Section
2.4.
"Debt Service" means the sum of the following amounts for the
immediately preceding fiscal quarter on an annualized basis: (i) Interest
Expense, (ii) debt amortization excluding balloon payments (including accruals
of debt amortization to the extent not paid on a monthly or quarterly basis and
Credit Parties' pro-rata share of debt amortization from Unconsolidated
Subsidiaries) and (iii) capital expenditures in an amount equal to five percent
(5%) of Funds From Operations, plus Credit Parties' amortized leasing
commissions and tenant improvements and Credit Parties' pro-rata share of
amortized leasing commissions and tenant improvements from Unconsolidated
Subsidiaries.
"Default" means any event which will constitute an Event of Default
with the lapse of time, giving of notice or both.
"Default Rate" means a per annum rate of interest equal to two percent
(2%) in excess of the Base Rate.
"Defaulting Lender" means, at any time, any Lender that, (a) has failed
to pay to Agent or any Lender its Revolving Commitment Percentage of any Advance
made pursuant to the terms of this Credit Agreement or any of the other Credit
Documents (but only for so long as such amount has not been repaid) or any
expenses or other amounts from time to time due to Agent by such Lender pursuant
to this Agreement, or (b) has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or to a receiver, trustee, or similar
official.
"Documentation Agent" shall mean Xxxxx Fargo Bank, National Association
("Xxxxx Fargo"). The title of Documentation Agent shall be in name only.
"Domestic Business Day" means any day except Saturday, Sunday or other
day on which commercial banks in Alabama are authorized by law to close.
"EBITDA" means the sum of property net operating income (as defined
herein) for all Property types of the Credit Parties before extraordinary items
(including gains and losses from debt restructuring and sales of Properties),
equity in earnings from Unconsolidated Subsidiaries and minority interest in
earnings. For purposes hereof, property net operating income shall be defined as
the sum of the net operating income from:
(a) office Properties, multifamily Properties, and strip center Properties,
calculated using the immediately preceding fiscal quarter multiplied by four
(4);
(b) enclosed mall Properties which have not converted from Construction in
Process in the applicable period, calculated using the most immediately
preceding four (4) fiscal quarters;
(c) enclosed mall Properties which have converted from Construction in Process
in the applicable period, calculated using the average of the net operating
income for each of the four fiscal quarters beginning in the first fiscal
quarter after conversion up to the fourth fiscal quarter after conversion, and
multiplied by four, and
(d) Credit Parties' pro-rata share of net operating income from Unconsolidated
Subsidiaries using the same calculations as outlined in (a), (b) and (c) above
for each Property type.
For purposes hereof, property net operating income shall exclude
Interest Expense, depreciation, amortization and income tax expense, but shall
include (i) accruals of those expenses, (including but not limited to, insurance
and property taxes) to the extent such expenses are not paid on a monthly or
quarterly basis, (ii) an imputed management fee expense for all Properties equal
to three percent (3%) of Effective Gross Income and (iii) an imputed reserve of
$200 per unit per annum for multifamily Properties and of $0.20 per square foot
per annum for all retail and office properties. Except as set forth above, the
calculation to determine EBITDA shall be prepared in accordance with GAAP.
"Effective Gross Income" means all collected rental income from all
Properties, plus other Corporate Recurring Income.
"Employee Plan" means any plan subject to Title IV of ERISA and
maintained in whole or in part for employees of Credit Parties.
"ERISA" means the Employee Retirement Income Security Act of 1974,
together with all amendments from time to time thereto, including any rules or
regulations promulgated thereunder.
"EUPP Liability" has the meaning set forth in Section 15.19 hereof.
"Euro-Dollar Advance" means an advance of a Euro-Dollar Loan.
"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" means for any day that the percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Lender to United States residents).
"Event of Default" means the events described in Section 12.1. hereof.
"Extension Fee" means an extension fee equal to twenty (20) basis
points of the Total Commitment. Such extension fee shall be paid to Lenders
based on their pro rata share of the Total Commitment.
"Facility Fee" means a facility fee as calculated in accordance with
Schedule 1.2.
"Fixed Charges" means the sum of the following amounts for the
immediately preceding fiscal quarter on an annualized basis: (i) Interest
Expense, (ii) debt amortization excluding balloon payments (including accruals
of debt amortization to the extent not paid on a monthly or quarterly basis and
Credit Parties' pro-rata share of debt amortization from Unconsolidated
Subsidiaries), (iii) capital expenditures in an amount equal to five percent
(5%) of Funds From Operations, plus Credit Parties' amortized leasing
commissions and tenant improvements and Credit Parties' pro-rata share of
amortized leasing commissions and tenant improvements from Unconsolidated
Subsidiaries, (iv) Preferred Stock Dividends, and (v) ground lease payments.
"Fixed Rate Advance" means a Euro-Dollar Advance or a Competitive Bid
Advance, or any or all of them, as the context shall require.
"Fixed Rate Loans" means Euro-Dollar Loans or Competitive Bid Loans, or
any or all of them, as the context shall require.
"Funds From Operations" means EBITDA less Interest Expense and
amortization of debt financing costs plus any gains or minus losses from the
sales of Property.
"GAAP" means, as in effect from time to time, generally accepted
accounting principles consistently applied with respect to a Person conducting a
business the same as or similar to that of Credit Parties.
"GAV" means the sum of (without redundancy) (i) EBITDA from all wholly
owned Properties which have not been acquired within the applicable reporting
period, capitalized at the appropriate Capitalization Rate, (ii) pro rata share
of EBITDA from Joint Ventures and Unconsolidated Subsidiaries which have not
been acquired within the applicable reporting period, capitalized at the
appropriate Capitalization Rate, (iii) Corporate Recurring Income less corporate
general and administrative expenses, net of the imputed management fee included
in the definition of EBITDA, all capitalized at eighteen percent (18%), (iv)
Gross Book Value of wholly owned Properties acquired during the applicable
reporting period, (v) pro rata share of Gross Book Value of Properties acquired
by Joint Ventures (subject to the limitation in Section 11.8 (m) of this
Agreement) and Unconsolidated Subsidiaries during the applicable reporting
period, (vi) recorded value of land, and (vii) recorded value of Construction in
Process (subject to the limitation of Section 11.8 (l) of this Agreement) and
(viii) remaining tangible assets, as determined in accordance with GAAP.
"Gross Book Value" means the value of an asset as recorded in the books
of Credit Parties, as determined in accordance with GAAP, before depreciation.
"Guarantor(s)" means CLP, any Significant Subsidiary, and any newly
formed Significant Subsidiaries of CLP as more particularly described in Section
10.22 of this Agreement.
"Interest Expense" means, for the immediately preceding fiscal quarter
on an annualized basis, all interest expense of the Credit Parties, plus
(without redundancy) (i) the pro-rata share of interest expense in
Unconsolidated Subsidiaries, (ii) capitalized interest, and (iii) all accrued,
or paid interest incurred on any obligation for which the Credit Parties are
wholly or partially liable under repayment, interest carry, or performance
guarantees, or other relevant liabilities.
"Interest Period(s)" means (1) with respect to each Euro-Dollar
Advance, the period commencing on the date of such Borrowing and ending seven
(7), fourteen (14), thirty (30), sixty (60), ninety (90) or one hundred eighty
(180) days 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
next succeeding 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 not a 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 Commitment
Termination Date and would otherwise end after the Commitment Termination Date.
(2)......with respect to each Competitive Bid Advance, 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 Competitive
Bid 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 Commitment
Termination Date and would otherwise end after the Commitment Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
together with all amendments from time to time thereto, including any rules or
regulations promulgated thereunder.
"Investments" 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.
"Invitation for Competitive Bid Quotes" means an Invitation for
Competitive Bid Quotes substantially in the form of Exhibit D hereto, completed
and delivered by Agent to Lenders in accordance with Section 4.3.
"Joining Lender" has the meaning set forth in Section 6.11.
"Joint Venture(s)" means any investment by any Credit Parties in a
corporation, limited liability company, limited liability partnership, tenancy
in common, and other similar entities.
"Lender(s)" means any of the Persons identified as a "Lender" on the
signature pages hereto, and including Agent whether in its capacity as Agent or
a Lender, and SouthTrust, as holder of the Swing Loan, any Person which may
become a Lender by way of assignment in accordance with the terms hereof,
together with their successors and permitted assigns and any Joining Lender,
together with their successors and permitted assigns.
"Letter(s) of Credit" means any irrevocable Letter of Credit issued by
Agent for the account of the Borrower, and all renewals and replacements of such
Letters of Credit, in the aggregate amount of up to $15,000,000 available to be
drawn from time to time, for the benefit of the beneficiaries named therein.
"Letter of Credit Agreement(s)" means an Application and Agreement for
Standby Letter of Credit executed by Borrower with respect to the issuance of
any Letter of Credit, as the same may be amended or extended. To the extent that
the provisions of any Letter of Credit Agreement are inconsistent with the terms
of this Agreement, the terms hereof shall control; otherwise, all terms and
conditions of any such Letter of Credit Agreement shall be binding upon and
enforceable against Borrower and are expressly incorporated herein by this
reference and made a part of this Agreement.
"Letter of Credit Fee" means the fee payable by Borrower to Agent with
respect to the issuance of a Letter of Credit pursuant to Section 3.3.
"LIBOR Plus Rate" means the sum of the Margin plus the applicable
London Interbank Offered Rate for the applicable Interest Period.
"Lien" means any voluntary or involuntary mortgage, security deed, deed
of trust, lien, pledge, assignment, charge, security interest, title retention
agreement, financing lease, levy, execution, seizure, judgment, attachment,
garnishment, charge or other encumbrance of any kind. Notwithstanding the
foregoing, a notice of commencement filed with respect to any Property located
in the State of Florida shall not constitute a "Lien" hereunder provided that
(i) the cost of the work described in such notice of commencement does not
exceed five percent (5%) of Property GAV, and (ii) no other Liens relating to
the work described in such notice of commencement are filed with respect to the
Property.
"Loans" means, collectively, the Revolving Loan, the Competitive Bid
Loans, if any, and the Swing Loan.
"London Interbank Offered Rate" or "LIBOR Rate" means for the Interest
Period of such Euro-Dollar Loan, the rate per annum determined on the basis of
the offered rate for deposits in dollars of amounts equal or comparable to the
principal amount of such Euro-Dollar Loan offered for a term comparable to such
Interest Period, which rates appear on Telerate Page 3750 effective as of 11:00
A.M., London time, 2 Euro-Dollar Business Days prior to the first day of such
Interest Period, provided that if no such offered rates appear on such page, the
"London Interbank Offered Rate" for such Interest Period will be the arithmetic
average (rounded upward, if necessary, to the next higher 1/100th of 1%) of
rates quoted by not less than 2 major banks in New York City, selected by the
Agent, at approximately 10:00 A.M., New York City time, 2 Euro-Dollar Business
Days prior to the first day of such Interest Period, for deposits in dollars
offered by leading European banks for a period comparable to such Interest
Period in an amount comparable to the principal amount of such Euro-Dollar Loan.
"Margin" shall have the meaning ascribed to such term in Section 2.4
hereof.
"Maturity Date" means the day which is thirty-six (36) months from the
Closing Date, which may be extended as set forth herein in Section 6.12.
"Maturity Extension Date" has the meaning set forth herein in Section
6.12.
"Maximum Borrowing Base" means the difference between (i) Pool GAV
divided by 1.70, and (ii) Unsecured Liabilities (excluding the outstanding
principal balance of the Loans and the Reimbursement Obligation funded under
Letter(s) of Credit) as more particularly set forth on Line 14 of the Compliance
Certificate.
"Multiemployer Plan" has the meaning set forth in Section 4001(a)(3) of
ERISA.
"Non-Stabilized Property" means (i) any Property which is not a
Stabilized Property and (ii) such Property is at least 65% leased (based on the
actual square footage at the Property) and wherein the tenants are paying at
least the average monthly lease payments required by the terms of such leases
and such leases are free from default by either the landlord or tenant
thereunder, and (iii) there is no Lien on the Property.
"Notes" means, collectively, the Revolving Notes, the Competitive Bid
Notes, and the Swing Loan Note.
"Organizational Documents" means (a) in the case of CLP, its
declaration of trust and bylaws (b) in the case of CRLP, its partnership
agreement and certificate of limited partnership, together, in each case, with
all amendments thereto, and (c) in the case of any other Guarantor, similar
documents relating to the formation and operation of such Person.
"Overadvance" means a Revolving Advance by Lenders under the Revolving
Notes when an Overadvance Condition exists or would result from the making of
such Revolving Advance.
"Overadvance Condition" means at any date, when the aggregate
outstanding principal of the Revolving Loans plus the Reimbursement Obligation,
plus the outstanding principal balance of all Competitive Bid Loans, plus the
outstanding principal balance of the Swing Loan, exceed the Maximum Borrowing
Base on such date.
"Performance Pricing Determination Date" shall mean each date on which
the Debt Rating changes.
"Person" means an individual, corporation, limited liability company,
limited partnership, partnership, association, joint-stock company, trust,
business trust, unincorporated organization or Joint Venture, or a court or
governmental authority.
"Permitted Investments" means the sum of (i) Colonial Investments and
(ii) the aggregate book value of land and Construction in Process.
"Pool" means the Credit Parties' unencumbered asset pool which shall
consist of (i) cash from a 1031 exchange, (ii) cash or cash equivalents held by
the Credit Parties for the sole purpose of liquidating or retiring unsecured
Debt, and (iii) all Stabilized Properties and Non-Stabilized Properties of
Credit Parties which are wholly owned and meet all of the following criteria:
(a) a certificate of occupancy has been issued for the Property and remains in
full force and effect and (b) there is no Lien on the Property, (c) the Credit
Parties have provided Agent with a Phase I environmental report for the Property
in form and content acceptable to Lenders, and (iv) wholly owned Construction in
Process which meets the criteria specified in (iii) (b) and (c), in an amount
not to exceed ten percent (10%) of Pool GAV.
"Pool EBITDA" means the sum of EBITDA of all Pool Properties.
"Pool GAV" means the sum of (without redundancy) (i) 100% of Pool
EBITDA from Stabilized Properties, capitalized at the appropriate Capitalization
Rate; (ii) for each Non-Stabilized Property in the Pool, the lesser of (a) 75%
of the Gross Book Value of Non-Stabilized Properties in the Pool, or (b) Pool
EBITDA of Non-Stabilized Properties capitalized at the appropriate
Capitalization Rate (subject, however, to such limitations set forth in Section
11.8 (i) and (j); (iii) 50% of the Gross Book Value of Construction in Process
Pool Properties (subject, however, to such limitations set forth in Section 11.8
(i) and (j); (iv) cash from a 1031 exchange; and (v) cash or cash equivalents
held by the credit parties for the sole purpose of liquidating or retiring
unsecured debt. Notwithstanding the foregoing, any Properties acquired during
the applicable reporting period that qualify for Pool shall be valued at Gross
Book Value.
"Pool Properties" means Properties included in the Pool.
"Preferred Stock" means preferred stock issued by the Borrower.
"Preferred Stock Dividends" means Borrower's preferred stock dividends
which have been paid and which have been declared and not yet paid (excluding
preferred stock dividends which are "paid in kind").
"Prohibited Transaction" means any transaction set forth in Section 406
of ERISA or Section 4975 of the Code.
"Property" or "Properties" means any multifamily, retail or office real
estate property.
"Property GAV" means EBITDA from wholly owned Properties, capitalized
at the appropriate Capitalization Rate, or if such wholly owned Property has
been acquired during the applicable reporting period, the Gross Book Value of
such Property.
"Qualified Rating Agency" means Xxxxx'x or Standard & Poors, or any
other rating agency from time to time approved by Borrower and Lenders in
writing as a Qualified Rating Agency.
"Refunding Loan(s)" means a new Revolving Loan made on the day on which
an outstanding Revolving Loan is maturing or a Base Rate Advance is being
converted to a Fixed Rate Advance, if and to the extent that the proceeds
thereof are used for the purpose of paying 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 2.8(c)
or remitted to the Agent as provided in Section 2.3, in each case as
contemplated in Section 2.8(d).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System from time to time in effect and shall include any
successor or other regulation or official interpretation of said Board of
Governors relating to the extension of credit by Lenders for the purpose of
purchasing or carrying margin stocks applicable to member Lenders of the Federal
Reserve System.
"Reimbursement Obligation" means at any time the sum of the undrawn
portion of any Letters of Credit plus the amounts of all drawings against
Letters of Credit and other fees and costs for which Borrower has not reimbursed
Agent.
"Reportable Event" means any of the events set forth in Section 4043(b)
of ERISA.
"Required Lenders" means the Lenders whose Total Commitments in the
aggregate exceed sixty-six and 67/100 percent (66.67%) of the Total Commitment
or if the Commitment Termination Date has occurred, Lenders having, at the time
of determination thereof, at least sixty-six and 67/100 percent (66.67%) of the
aggregate principal amount of the Loans outstanding plus all of the
Reimbursement Obligations; provided, however, that if any Lender shall be a
Defaulting Lender at such time then such Defaulting Lender's Total Commitment
shall be excluded from the determination of Required Lenders.
"Revolving Advance" means an advance of the Revolving Loan.
"Revolving Commitment" means, for each Lender, such Lender's committed
dollar amount of the Revolving Loan, as set forth on Schedule 1.1.
"Revolving Commitment Percentage" means, for each Lender, the
percentage identified as its Revolving Commitment Percentage on Schedule 1.1, as
such percentage may be adjusted as set forth herein.
"Revolving Loan" means the credit facility available to Borrower
pursuant to Article 2 of this Agreement, together with interest thereon and
other agreed charges as may be outstanding at any given time.
"Revolving Notes" means the promissory notes in substantially the form
of Exhibit F attached hereto, with appropriate insertions, evidencing each
Lender's Revolving Commitment in the Revolving Loan, duly executed and delivered
to Lenders by Borrower and payable to the order of such Lender, together with
any renewals, extensions, modifications, or amendments to such promissory notes.
"SEC" means the Securities and Exchange Commission.
"Secured Liabilities" means those Total Liabilities which are secured
by a Lien.
"Significant Subsidiary" means any Subsidiary wholly owned by the
Credit Parties representing equal to or greater than five percent (5%) of GAV
and/or the total consolidated revenues of the Credit Parties as reported in the
financial statements of the Credit Parties and prepared in accordance with GAAP.
"SouthTrust" means SouthTrust Bank, its successors and assigns.
"Stabilized Properties" means any Property which meets all of the
following criteria: (i) a certificate of occupancy has been issued for the
Property and remains in full force and effect, (ii) the Property has been at
least eighty percent (80%) occupancy level if multifamily, retail, or office
(based on actual leasable square footage at the Property) for the most
immediately preceding three (3) consecutive months based on leases wherein the
tenants are paying at least the average monthly lease payments required by the
terms of such leases and such leases are free from default by either the
landlord or tenant thereunder, and (iii) there is no Lien on the Property.
However, if a historically Stabilized Property drops below the above listed
occupancy threshold level, such Property may again become classified as a
Stabilized Property after attaining a ninety percent (90%) occupancy level for a
monthly reporting period if such Property attains such ninety percent (90%)
occupancy level within three months of previously being classified as a
Stabilized Property. Once a Property is reclassified as a Stabilized Property,
then such Property shall remain classified as a Stabilized Property if it
satisfies items (i) and (iii) above and maintains at least eighty percent (80%)
occupancy level for each month thereafter.
"Stated Maturity Date" means, with respect to any Competitive Bid Loan,
the Stated Maturity Date therefor specified by the Lender in applicable
Competitive Bid Quote Request and which must be for an Interest Period of seven
(7), fourteen (14), thirty (30), sixty (60), or ninety (90) days not to extend
more than ninety (90) days.
"Subsidiary" means any corporate entity, partnership, or other business
entity, in which one or more of the Credit Parties owns an ownership interest.
"Swing Commitment" means SouthTrust's committed dollar amount of the
Swing Loan, as set forth on Schedule 1.1.
"Swing Commitment Percentage" means SouthTrust's percentage identified
as its Swing Commitment Percentage on Schedule 1.1, as such percentage may be
adjusted as set forth herein.
"Swing Loan" means the $25,000,000 loan made available to Borrower
pursuant to Article 5 of this Agreement, together with accrued interest thereon
and other agreed charges as may be outstanding at any given time.
"Swing Loan Advance" means an advance of the Swing Loan.
"Swing Loan Note" means that certain Swing Loan Note of even date
herewith from Borrower to SouthTrust, in the form of Exhibit J attached hereto,
together with any renewals, extensions, modifications, or amendments thereof.
"Syndication Agent" shall mean AmSouth Bank. The title of Syndication
Agent shall be in name only.
"Total Allocated Commitment" means each Lender's Revolving Commitment
as determined by the Agent and Borrower in its sole discretion.
"Total Commitment" means $320,000,000, subject to being increased as
set forth in Section 6.11, and consisting, for each Lender, of such Lender's
committed dollar amount of the Loans, as set forth in Schedule 1.1.
"Total Commitment Percentage" means for each Lender, the percentage
identified as its Total Commitment Percentage on Schedule 1.1, as such
percentage may be adjusted as set forth herein.
"Total Liabilities" shall mean (without redundancy), all mortgage debt,
letters of credit, the deferred purchase price pursuant to purchase agreements
or contracts, to the extent such deferred purchase price is required to be
included in accordance with GAAP, forward equity commitments (however, such
commitments shall not be considered debt if such commitments are required to be
replaced dollar for dollar with equity), pre-purchase deals (including all
assets and liabilities of such pre-purchase deals), unsecured debt, subordinated
debt, payables, accrued expenses, lease obligations (including ground leases),
EUPP Liability, guarantees of indebtedness and unfunded obligations (excluding
EUPP Liability), pro rata share of non-recourse debt in Unconsolidated
Subsidiaries or Joint Ventures (where the pro rata share of the asset has been
included) and any loan where any of the Credit Parties are liable for debt as a
general partner, and one hundred percent (100%) of Credit Parties portion of
recourse debt in Unconsolidated Subsidiaries or Joint Ventures, and one hundred
percent (100%) of Credit Parties Portion of recourse debt incurred by any of the
Credit Parties.
"Unconsolidated Subsidiary" means a Subsidiary that is not consolidated
with the Credit Parties for financial reporting purposes.
"Unsecured Interest Expense" means Interest Expense relating to
Unsecured Liabilities.
"Unsecured Liabilities" means those Total Liabilities which are not
secured by a Lien.
"Up-Front Fee" means a one-time up-front fee equal to the sum of each
Lender's Total Commitment amount multiplied by the appropriate fee as detailed
below and paid on the Closing Date:
Total Allocated Commitment Amount Upfront Fee
$15,000,000 to $34,999,999.99 45 basis points
$35,000,000 to $44,499,999.99 50 basis points
Maximum Commitment $50,000,000 55 basis points
Article 2.........
REVOLVING LOAN
2.1 Disbursement of Revolving Advances.
(a) Subject to the terms and conditions of this Agreement, and for so long as no
Event of Default exists and no covenant, term or condition contained in any of
the Credit Documents will be breached or violated as a result of such Revolving
Advance, the Lenders agree to make Revolving Advances to Borrower from time to
time during the Commitment Period, in an aggregate principal amount at any time
outstanding not to exceed the lesser of (i) the Total Commitment less the
Reimbursement Obligation and less the outstanding principal balance of
Competitive Bid Loans and less the Swing Commitment, and (ii) the Maximum
Borrowing Base less the Reimbursement Obligation and less the outstanding
principal balance of Competitive Bid Loans, and less the Swing Commitment.
Notwithstanding the foregoing, no Lender shall be obligated to make Revolving
Advances in excess of its Revolving Commitment. The Revolving Loan shall mature
and be payable in full upon the Commitment Termination Date. During the
Commitment Period, Borrower may borrow, repay and reborrow the principal of the
Revolving Loan, all in accordance with the terms and conditions of this
Agreement.
(b) If the sum of the outstanding principal amount of the Revolving Loan, plus
the Reimbursement Obligation, plus the outstanding principal balance of all
Competitive Bid Loans, plus the outstanding principal balance of the Swing Loan,
at any time exceeds the Maximum Borrowing Base, Borrower shall immediately pay
to the Agent, without need of notice or demand by Agent (and without Lenders'
waiving the Default or Event of Default which may arise as a result of such
excess), an amount sufficient to reduce said sum to the Maximum Borrowing Base.
(c) Even if such Revolving Advance would constitute an Overadvance, the Lenders
may, in their sole discretion, but shall not be obligated to, advance to
Borrower, and make a Revolving Advance for a sum sufficient each month to pay
all interest accrued on the Loans and fees due under this Agreement and the
other Credit Documents during or for the immediately preceding month.
(d) The minimum Revolving Advance shall be in an aggregate principal amount of
$5,000,000 or any larger integral multiple of $500,000.
2.2 The Revolving Notes. The liability of the Borrower to pay the
Revolving Loan shall be evidenced by the Revolving Notes.
-------------------
2.3 Payments.
--------
(a) For a Base Rate Loan, on the tenth (10th) day of each calendar month during
the Commitment Period and/or upon conversion to a Euro-Dollar Loan, Borrower
shall pay to Agent in arrears all accrued and unpaid interest on the outstanding
principal balance of the Base Rate Loan through the last day of the preceding
month.
(b) For a Euro-Dollar Loan, (i) on the maturity of Interest Period of seven (7)
or fourteen (14) days or (ii) on the tenth (10th) day of each month during the
Commitment Period and upon the maturity of an Interest Period of thirty (30),
sixty (60), ninety (90) and/or one hundred eighty (180) days, Borrower shall pay
to Agent in arrears all accrued and unpaid interest on the outstanding principal
balance of the Euro-Dollar Loan through the last day of the preceding month.
(c) On the Commitment Termination Date, the outstanding principal balance of the
Revolving Loan, plus all accrued and unpaid interest thereon, shall be due and
payable.
2.4 Interest Rate.
-------------
(a) "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, 1.05%; and
(ii) from and after the first Performance Pricing Determination Date for any
Base Rate Loan, and 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", being the ratings as determined by a Qualified Rating Agency
and described in the table below, on each Performance Pricing
Determination Date; provided, that if there is no Debt Rating the
Margin for Euro-Dollar Loans shall be based upon Level V of the table
below.
Level I Level II Level III Level IV Level V
Debt Rating > BBB + BBB+ or BBB BBB- < BBB-
-
or Baal Baa1 or Baa2 or Baa3 or Baa3
Euro-Dollar Margin 0.70% 0.80% 0.90% 1.05% 1.35%
Base Rate Margin 0.00% 0.00% 0.00% 0.00% 1.00%
Each change in interest and fees as a result of a change in Debt Rating shall be
effective for Euro-Dollar Loans and Base Rate Loans (including Refunding Loans)
which are made and fees which accrue on or after the relevant Performance
Pricing Determination Date. All determinations hereunder shall be made by the
Agent unless the Required Lenders shall object to any such determination. The
Borrower shall promptly notify the Agent of any change in the Debt Rating. If
more than one Debt Rating is available from different Qualified Rating Agencies,
then the lowest Debt Rating will be used for purposes of determining the Margin.
(b) Each Base Rate Loan shall bear interest on the outstanding principal amount
thereof, for each day from the date such Loan is made (including the date of
conversion of a Euro-Dollar Loan to a Base Rate Loan pursuant to Section 6.9),
at a rate per annum equal to the Base Rate plus applicable margin set forth in
Section 2.4(a) above, which rate will change as and when the Base Rate changes.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per annum
equal to the LIBOR Plus Rate.
(d) The Agent shall determine each interest rate applicable to the Loans
hereunder. The Agent shall give prompt notice to the Borrower and the Lenders by
telecopier of each rate of interest so determined, and its determination thereof
shall be conclusive in the absence of demonstrable error.
(e) After the occurrence and during the continuance of an Event of Default, the
principal amount of the Loans shall bear interest at the Default Rate.
2.5 Prepayment. Except as set forth in Section 6.10 herein, the principal of the
Revolving Loan may be prepaid in whole or in part without premium or penalty;
provided that Borrower shall orally notify Agent at least two (2) Domestic
Business Days in advance of any prepayment in excess of $5,000,000 which arises
outside of the Cash Management Agreements.
2.6 Fees. ..The Borrower shall pay a one-time Up-Front Fee to Agent, for account
of Lenders, on the Closing Date of the Credit Agreement. The Borrower shall pay
to Agent the Facility Fee in accordance with Schedule 1.2, for account of
Lenders, with the first payment on January 1, 2003. Thereafter, the Borrower
shall pay one-fourth (1/4) of the Facility Fee to Agent, for account of Lenders,
on the first Domestic Business Day following every fiscal quarter end.
2.7 Termination by Borrower of the Revolving Loan. Provided that (1) no Advances
or Swing Loan Advances are outstanding and no Letters of Credit are outstanding,
(2) all fees and charges due to Lenders under the Credit Documents have been
paid, and (3) Borrower simultaneously terminates the Swing Loan and Competitive
Bid Loans, Borrower may, by written notice to Agent, terminate the Revolving
Loan upon the date specified in such notice. On the date of such termination
(which shall become the Commitment Termination Date), Borrower shall pay to
Agent, for the account of Lenders, the Facility Fee specified in Section 2.6.,
for each month through the original Commitment Termination Date.
2.8 Procedure for Revolving Advances Under Revolving Loan.
-----------------------------------------------------
(a) Request for a Revolving Advance shall be disbursed pursuant to the
Borrower's request therefor (whether in writing, by telephone, or
otherwise) to Agent. Any written request for a Revolving Advance shall
be given by Borrower to Agent (substantially in the form of Exhibit L,
the "Notice of Borrowing") and any telephonic or other request shall be
confirmed by a Notice of Borrower in such form within five (5) Domestic
Business Days of such telephonic or other request). Any request for a
Revolving Advance must be received prior to 11:00 A.M. Birmingham,
Alabama time), on the same Domestic Business Day of each Base Rate
Advance, and at least three (3) Euro-Dollar Business Days before each
Euro-Dollar Advance (once the Notice of Borrowing is received by the
Agent such notice shall not thereafter be revocable by the Borrower),
specifying:
(i) the date of such Borrowing, which shall be a Domestic Business Day in
the case of a Base Rate Advance or a Euro-Dollar Business Day in the
case of a Euro-Dollar Advance,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Revolving Loans comprising such Borrowing are to be Base
Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Fixed Rate Advance, the duration of the Interest
Period applicable thereto, subject to the provisions of the definition
of Interest Period.
Revolving Advance must be made by (1) Xxxxxx X. Xxxxxx, (2) Xxxxx X. Xxxxxxxx,
(3) Xxxxxxx X. Xxxxxx, (4) Xxxxxx X. Xxxxxx, Xx., (5) Xxxxx X. Xxxxxx, and (6)
any other Person designated in writing by Xxxxxx X. Xxxxxx as President and CEO
or Xxxxxx X. Xxxxxx, Xx., as CFO (or any successor President, CEO, and/or CFO).
Agent and each Lender shall be entitled to rely upon any notice it believes is
genuine and to have been given by an authorized Person. Revolving Advances made
in conformity with the provisions of this paragraph shall be fully binding upon
the Borrower. Notwithstanding the foregoing, all drafts under any Letter of
Credit and Revolving Advances made pursuant to Section 5.7., shall be deemed a
Revolving Advance requested by Borrower for all purposes of this Section 2.8.
(b) If a Notice of Borrowing is not received at least three (3) Domestic
Business Days prior to the proposed Borrowing Date, then such Revolving Advance
shall be a Base Rate Advance and Agent shall provide prompt notice to Lender on
the day of such Base Rate Advance to the Lender. The Agent agrees to provide at
least two (2) days notice to the Lenders for a Euro-Dollar Advance. Such notice
("Notice of Borrowing to Lenders") provided to the Lenders by the Agent
(substantially in the form of Exhibit M) shall also include the principal amount
of the Revolving Advance that each Lender shall disburse as calculated based
upon each Lender's Revolving Commitment Percentage, whether it is a Base Rate
Loan or a Euro-Dollar Loan, and the applicable interest rate.
(c) Not later than 2:00 P.M. (Birmingham, Alabama, time) as to Base Rate
Advances and as to Euro-Dollar Advances, on the date of each Revolving Advance,
each Lender shall (except as provided in paragraph (d) of this Section) make
available its Revolving Commitment Percentage of such Revolving Advance, in
Federal or other funds immediately available in Birmingham, Alabama, to the
Agent via wire transfer to the following account (or to such other account as
Agent may hereafter designate in writing):
SouthTrust Bank
Birmingham, Alabama
ABA No.: 000000000
Customer No.: 00015209641
For the account of Colonial Realty Limited Partnership
Attention: Participation Loans
The Agent will make the funds so received from the Lenders available to the
Borrower at the Agent's aforesaid address. Unless the Agent receives notice from
a Lender, at the Agent's address referred to in or specified pursuant to Section
15.1, no later than 4:00 P.M. (Local time at such address) on the Domestic
Business Day before the date of a Revolving Advance stating that such Lender
will not make a Revolving Loan in connection with such Revolving Advance, the
Agent shall be entitled to assume that such Lender will make a Revolving Loan in
connection with such Revolving Advance and, in reliance on such assumption, the
Agent may (but shall not be obligated to ) make available such Lender's
Revolving Commitment Percentage of such Revolving Advance to the Borrower for
the account of such Lender. If the Agent makes such Lender's Revolving
Commitment Percentage available to the Borrower and such Lender does not in fact
make its Revolving Commitment Percentage of such Revolving Advance available on
such date, the Agent shall be entitled to recover such Lender's Revolving
Commitment Percentage from such Lender or the Borrower (and for such purpose
shall be entitled to charge such amount to any account of the Borrower
maintained with the Agent), together with interest thereon for each day during
the period from the date of such Revolving Advance until such sum shall be paid
in full at a rate per annum equal to the rate at which the 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 Lender's Revolving Commitment Percentage and interest
thereon shall be without prejudice to any rights that the Borrower may have
against such Lender, including, but not limited to actual attorneys' fees,
reasonable costs and expenses and (ii) until such Lender has paid its Revolving
Commitment Percentage of such Revolving Advance, together with interest pursuant
to the foregoing provisions, it will have no interest in or rights with respect
to such Revolving Advance for any purpose hereunder. If the Agent does not
exercise its option to advance funds for the account of such Lender, it shall
forthwith notify the Borrower of such decision. No Lender's obligation to fund
its Revolving Commitment Percentage of a Revolving Advance shall be affected by
any other Lender's failure to fund its Revolving Commitment Percentage of a
Revolving Advance, nor shall any Lender's Revolving Commitment Percentage be
increased as a result of any such failure of any other Lender.
(d) If any Lender makes a new Revolving Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Revolving Loan from such
Lender, such Lender shall apply the proceeds of its new Revolving 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 Lender to the Agent as provided in paragraph (c)
of this Section, or shall be remitted by the Borrower to the Agent as provided
in Section 2.3, as the case may be.
(e) Notwithstanding anything to the contrary contained in this Agreement, no
Fixed Rate Advance may be made if there shall have occurred and be continuing 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
Revolving Loans comprising such Revolving Advance are to be Base Rate Loans or
Euro-Dollar Loans such Revolving Loans shall be made as Base Rate Loans. If the
Borrower is otherwise entitled under this Agreement to repay any Revolving Loans
maturing at the end of any Interest Period applicable thereto with the proceeds
of a new Borrowing, and the Borrower fails to repay such Revolving Loans using
its own moneys and fails to give a Notice of Borrowing in connection with such
new Revolving Advance, a new Revolving Advance shall be deemed to be made on the
date such Revolving Loans mature in an amount equal to the principal amount of
the Revolving Loans so maturing, and the Revolving Loans comprising such new
Revolving Advance shall be Base Rate Loans.
(g) Notwithstanding anything to the contrary contained herein, there shall not
be more than eight (8) Euro-Dollar Loans and two (2) Competitive Bid Loans
outstanding at any given time.
(h) The obligations of the Lenders hereunder are several and not joint. None of
the Lenders shall be liable to the Credit Parties due to the failure of any
other Lender to fund its Revolving Commitment Percentage of a Revolving Advance.
Article 3.........LETTER OF CREDIT SUBFACILITY
3.1 Issuance and Maintenance of Letters of Credit.
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(a) Subject to all terms set forth herein and in the Letter of Credit
Agreements, and for so long as no Event of Default exists and no covenant will
be breached or violated as a result of issuance of such Letters of Credit, Agent
agrees, from the date hereof until thirty (30) days prior to the Commitment
Termination Date, and on the terms hereinafter set forth, to issue on its behalf
and on behalf of the Lenders, the Letters of Credit, and agrees to maintain the
Letters of Credit for the account of the Borrower in accordance with the terms
hereof and of the Letter of Credit Agreements.
(b) Upon Borrower's written request specifying (i) the beneficiary of the Letter
of Credit, (ii) the amount of the Letter of Credit, (iii) the term of the Letter
of Credit, and (iv) such other information as Agent may request, and upon
Borrower's execution of a Letter of Credit Agreement, Agent shall issue a Letter
of Credit substantially in the form of the letter of credit attached hereto as
Exhibit G. Agent shall not be obligated to issue any Letter of Credit if the
amount of such Letter of Credit plus the Reimbursement Obligation would exceed
$15,000,000 or if the requested expiration date would extend beyond the
Commitment Termination Date.
(c) Agent shall give prompt written notice to Lenders of the issuance of a
Letter of Credit and each Lender's respective Revolving Commitment Percentage in
such Letter of Credit.
3.2 Reimbursement Obligation of Borrower. Borrower hereby agrees to reimburse
Agent: (i) on each date on which a draft is presented for payment on the Letters
of Credit (x) the amount of the draft paid by the Agent under the Letters of
Credit and (y) the amount of any taxes (other than income taxes), fees, charges
or other costs or expenses whatsoever incurred by Agent under, or with respect
to the Letters of Credit; and (ii) upon the acceleration of the Loans in
accordance with Section 12.2. hereof, an amount equal to the Reimbursement
Obligation. Payments of the Reimbursement Obligation shall be made by Lenders
making a Revolving Advance of the Revolving Loan, and this Revolving Advance
will be made notwithstanding Section 13.5 or any other provision of this
Agreement to the contrary. All amounts remaining unpaid by Borrower under this
Section 3.2. shall bear interest from the date such amounts become payable
(whether as stated, by acceleration or otherwise) until payment in full, at the
Default Rate, and such interest shall be payable by Borrower to Agent on each
Domestic Business Day.
3.3 Commissions and Fees.
(a) As consideration for the issuance of each Letter of Credit, Borrower shall
pay to Agent, for the account of Lenders, a fee (the "Letter of Credit Fee")
equal to the then applicable Euro-Dollar Loan Margin on the available and
undrawn portion of the applicable Letter of Credit from the effective date of
such Letter of Credit to the expiration of such Letter of Credit based upon a
360-day year. The Letter of Credit Fee for any Letter of Credit shall be
nonrefundable and shall be payable in full upon execution of the Letter of
Credit.
(b) In addition to the Letter of Credit Fee described above, Borrower shall also
pay to Agent for its account, standard and customary set-up and draw fees in
such amounts as may be established by Agent from time to time.
3.4 Reimbursement Obligation Absolute.
Borrower's obligations under this Article 3 and under the Letter of Credit
Agreements shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which
Borrower may have or have had against any Agent or a beneficiary of a Letter of
Credit. Borrower also agrees that Agent shall not be responsible for, and
Borrower's Reimbursement Obligation shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements thereon,
even if such documents should, in fact, prove to be in any and all respects
invalid, fraudulent or forged, or any dispute between or among Borrower and the
beneficiary of a Letter of Credit or other party to whom a Letter of Credit may
be transferred or any claims whatsoever of Borrower against the beneficiary of a
Letter of Credit or any transferee. Agent shall not be liable for any error,
omission, interpretation or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with a Letter of Credit.
Borrower agrees that any action taken or omitted by Agent under or in connection
with a Letter of Credit or any related drafts or documents, if done in good
faith and in accordance with the standards and principles specified in the
International Standby Practices 1998 (as defined in the Letter of Credit), shall
be binding on Borrower and shall not put the Agent under any liability to
Borrower.
3.5 Surrender of Letter of Credit.
Borrower shall surrender or cause to be surrendered to Agent all original
outstanding Letters of Credit on the Commitment Termination Date, or upon
failing to do so shall pay to Agent in escrow an amount equal to the
Reimbursement Obligation. Agent will be entitled to apply such escrowed funds to
any draws thereafter made upon any such Letters of Credit and, if a balance
remains in escrow once all Letters of Credit have been surrendered or expired,
Agent will remit such balance to Borrower upon request.
Article 4.........COMPETITIVE BID SUBFACILITY
4.1 Competitive Bid Option. Subject to the terms and conditions of this
Agreement, and for as long as (i) no Default or Event of Default exists, (ii)
Borrower maintains BBB-/Baa3 or higher Debt Rating from all Qualified Rating
Agencies, and (iii) no covenant, term, or condition contained in any of the
Credit Documents will be breached or violated as a result of such Competitive
Bid Advance, Borrower shall have the option from time to time during the
Commitment Period, but not more than two (2) times in any calendar month, to
request Lenders to make Competitive Bid Loans, in an aggregate amount at any
time not to exceed (after giving effect to any prepayments on the Revolving Loan
and Swing Loan that will be made with the proceeds of a Competitive Bid Loan)
the lesser of (1) 50% of the Total Commitment (subject to being changed as set
forth in Sections 6.11 and 6.12 hereof) and (2) the Maximum Borrowing Base less
the Reimbursement Obligation and less the outstanding principal balance of the
Revolving Loan and less the Swing Commitment. Each Lender may, but shall have no
obligation to, make such offers for Competitive Bid Loans and the Borrower may,
but shall have no obligation to, accept any such offers. Any amounts outstanding
under a Competitive Bid Loan will reduce availability for a Revolving Advance. A
Lender's Competitive Bid Loan(s) shall not reduce Lender's obligation to make
its Revolving Commitment Percentage of a Revolving Advance. Competitive Bid
Loans shall be evidenced by the Competitive Bid Notes.
4.2 Competitive Bid Quote Request. When the Borrower wishes to request offers to
make Competitive Bid Loans under this Section 4.2, it shall transmit to the
Agent by telecopy a Competitive Bid Quote Request so as to be received no later
than 10:00 A.M. (Birmingham, Alabama, time) at least seven (7) Domestic Business
Days prior to the Borrowing Date which request must specify:
(a) the proposed Borrowing Date, which must be seven (7) Domestic Business Days
after the day Borrower submits the Competitive Bid Quote Request;
(b) the aggregate principal amount of such Competitive Bid Advance (which must
be for a minimum of $25,000,000 and must be in increments of $1,000,000); and
(c) the Stated Maturity Date must not extend beyond the Commitment Termination
Date.
A Competitive Bid Quote Request that does not conform substantially to the
format of Exhibit C hereto shall be rejected, and the Agent shall promptly
notify the Borrower of such rejection by telecopy.
4.3 Invitation for Competitive Bid Quotes. For any Competitive Bid Quote Request
that is not rejected pursuant to Section 4.2, the Agent shall send to each of
the Lenders by telecopy, on or before 10:00 A.M. (Birmingham, Alabama, time) two
(2) Domestic Business Days after Agent's receipt of a Competitive Bid Quote
Request, an Invitation for Competitive Bid Quote in the form of Exhibit D, which
shall constitute an invitation by the Borrower to each Lender to submit
Competitive Bid Quotes offering to make the Competitive Bid Loans to which such
Competitive Bid Quote Request relates in accordance with this Article 4. If
Agent chooses to submit a Competitive Bid Quote to Borrower, it must do so on or
before the earlier of (i) 10:00 A.M. (Birmingham, Alabama, time) two (2)
Domestic Business Days after the receipt of the Competitive Bid Quote Request,
or (ii) its submission of the Invitation for Competitive Bid Quotes to the
Lenders.
4.4 Submission and Contents of Competitive Bid Quotes.
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(a) Each Lender may, in its sole discretion, submit a Competitive Bid Quote
containing an offer or offers to make Competitive Bid Loans in response
to any Invitation for Competitive Bid Quotes. Each Competitive Bid
Quote must comply with the requirements of this Section 4.4 and must be
submitted to the Agent by telecopy on or before 10:00 A.M. (Birmingham,
Alabama, time) two (2) Domestic Business Days after their receipt of
the Invitation for Competitive Bid Quotes. Subject to Articles 8 and
12, any Competitive Bid Quote so made shall be irrevocable except with
the written consent of the Agent given on the instructions of the
Borrower.
(b) Each Competitive Bid Quote shall be in substantially the form of
Exhibit B hereto and shall in any case specify:
(i) the proposed Borrowing Date, which shall be the same as that set
forth in the applicable Invitation for Competitive Bid Quotes;
(ii) the principal amount of the Competitive Bid Loan for which each
such offer is being made, which principal amount (1) may be
greater than, less than or equal to the Total Commitment of the
quoting Lender, and (2) may not exceed the principal amount of
Competitive Bid Loans for which offers were requested;
(iii) the applicable margin for each such principal amount from such
quoting Lender ("Competitive Bid Margin");
(iv) the minimum amount, if any, of the Competitive Bid Loan which may
be accepted by the Borrower;
(v) the identity of the quoting Lender; and
(vi) applicable Interest Period.
(c) The Agent shall reject any Competitive Bid Quote that:
(i) is not substantially in the form of Exhibit B hereto or does not
specify all of the information required by Section 4.4.
(ii) contains qualifying, conditional or similar language, other than
any such language contained in Exhibit B hereto;
(iii) proposes terms other than or in addition to those set forth in
the applicable Invitation for Competitive Bid Quotes; or
(iv) arrives after the time set forth in Section 4.4.
If any Competitive Bid Quote shall be rejected pursuant to this Section 4.4(c),
then the Agent shall notify the relevant Lender of such rejection promptly.
4.5 Notice to Borrower. The Agent shall promptly notify the Borrower of the
terms (i) of the Competitive Bid Quote submitted by a Lender that is in
accordance with Section 4.4 and (ii) of any Competitive Bid Quote that amends,
modifies or is otherwise inconsistent with a previous Competitive Bid Quote
submitted by such Lender with respect to the same Competitive Bid Quote Request.
Any such subsequent Competitive Bid Quote shall be disregarded by the Agent
unless such subsequent Competitive Bid Quote specifically states that it is
submitted solely to correct a manifest error in such former Competitive Bid
Quote, and absent such manifest error, each original Competitive Bid Quote shall
be irrevocable for the period to and including the proposed Borrowing Date or
such earlier date, if any, at which such Competitive Bid Quote is rejected in
writing by Borrower. The Agent's notice to the Borrower shall specify the
aggregate principal amount of Competitive Bid Loans for which offers have been
received.
4.6 Acceptance and Notice by Borrower. Not later than 10:00 A.M. (Birmingham,
Alabama, time) two (2) Domestic Business Days prior to the Borrowing Date, the
Borrower shall notify the Agent of its acceptance or rejection of the offers so
notified to it pursuant to Section 4.5 and of the account of Borrower into which
such Competitive Bid Advance is to be disbursed; provided, however, that the
failure by the Borrower to give such notice to the Agent shall be deemed to be a
rejection of all such offers. Not later than 11:00 A.M. (Birmingham, Alabama,
time) on such date, Agent shall notify the Lenders of (1) the name of the
Lender(s) whose bid(s) is (are) accepted by Borrower, (2) the principal amount,
interest rate, and term of the Competitive Bid Quote accepted by Borrower, and
(3) the account designated by Borrower into which the Competitive Bid Advance is
to be disbursed. The Lender(s) whose bid(s) is (are) accepted by Borrower shall
make the Competitive Bid Advance into the account designated by Borrower by 1:00
P.M. (Birmingham, Alabama, time) on the Borrowing Date.
4.7 Interest Rate and Payments. Interest on Competitive Bid Loans shall accrue
at the per annum rate equal to the sum of the Competitive Bid Margin plus the
Adjusted London Interbank Offered Rate for such applicable Interest Period,
which such Adjusted London Interbank Offered Rates shall be calculated two (2)
Euro-Dollar Business Days prior to the funding of the Competitive Bid Advance.
Interest on Competitive Bid Loans shall be payable (i) on the Stated Maturity
Date for Competitive Bid Loans with an Interest Period of one month and (ii) on
the tenth (10th) day of each month for Competitive Bid Loans with an Interest
Period of two and/or three months. Interest on Competitive Bid Loans shall be
payable in arrears. The outstanding principal balance of Competitive Bid Loans,
together with all accrued and unpaid interest thereon, shall be due and payable
in full on the Stated Maturity Date.
4.8 Prepayment. Competitive Bid Loans may not be prepaid except in the sole
discretion of the Lender who made such Competitive Bid Loan and subject to
Section 6.5(e).
Article 5.........SWING LOAN
5.1 Disbursement of Swing Loan Advances. Subject to the terms and conditions of
this Agreement, and for so long as no Event of Default exists and no covenant,
term or condition contained in any of the Credit Documents will be breached or
violated as a result of such Swing Loan Advance, SouthTrust agrees to make Swing
Loan Advances to Borrower from time to time during the Commitment Period, in an
aggregate principal amount at any time outstanding not to exceed $25,000,000
less the outstanding principal balance of the Swing Loan Note. The Swing Loan
shall mature and be payable in full upon the Commitment Termination Date. During
such time, Borrower may borrow, repay and reborrow the principal of the Swing
Loan, all in accordance with the terms and conditions of this Agreement.
Notwithstanding anything to the contrary contained herein, SouthTrust shall be
required to make Swing Loan Advances only to the extent that Lenders are
obligated to make Revolving Advances hereunder.
5.2 The Swing Loan Note. The liability of the Borrower to pay the Swing
Loan shall be evidenced by the Swing Loan Note.
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5.3 Payments.
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(a) On the tenth day of each calendar month during the Commitment Period,
Borrower shall pay to Agent, for the account of SouthTrust, all accrued and
unpaid interest on the outstanding principal balance of the Swing Loan.
(b) On the Commitment Termination Date, the outstanding principal balance of the
Swing Loan, plus all accrued and unpaid interest thereon, shall be due and
payable.
5.4 Interest Rate.
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(a) The unpaid principal balance of the Swing Loan shall bear interest at the
LIBOR Plus Rate, for an Interest Period of one month as calculated two (2)
Euro-Dollar Business Days prior to the end of a calendar month, with such LIBOR
Plus Rate being effective for the entire subsequent month and being recalculated
for each subsequent calendar month thereafter pursuant to the foregoing
procedure.
(b) Credit Parties agree that notwithstanding the fact that the interest rate
accruing on the Swing Loan is based upon SouthTrust's cost of funds in the
Euro-Dollar Market, SouthTrust shall not be required to actually obtain funds
from such source at any time.
5.5 Prepayment. Except as provided in Section 6.10 herein, the principal of the
Swing Loan may be prepaid in whole or in part without premium or penalty;
provided that Borrower shall orally notify Agent at least two (2) Domestic
Business Days in advance of any prepayment in excess of $5,000,000.
5.6 Termination by Borrower of the Swing Loan. Provided that no Swing Loan
Advances or Advances are outstanding and no Letters of Credit are outstanding,
and provided further that Borrower has terminated the Revolving Loan and
Competitive Bid Loans in the manner set forth in Section 2.7., Borrower may, by
written notice to SouthTrust, also terminate the Swing Loan upon the date
specified in such notice.
5.7 Procedure for Swing Loan Advances.
(a) Swing Loan Advances shall be disbursed to fund the day to day operations of
Borrower, and Borrower shall be deemed to have requested a Swing Loan Advance,
pursuant to the Cash Management Agreements, as necessary to cover any excess of
disbursements over receipts, or as otherwise permitted pursuant to the Cash
Management Agreements.
(b) Upon the occurrence of an Event of Default, and notwithstanding anything to
the contrary in Section 13.5 or any other provision of this Agreement, the Swing
Commitment shall terminate, and each other Lender will purchase from SouthTrust
its Total Commitment Percentage of the Swing Loan, and SouthTrust shall purchase
from the other Lenders the remainder of its Total Commitment Percentage in the
Revolving Loan, such that upon an Event of Default each Lender will hold its
Total Commitment Percentage of the Revolving Loan, Swing Loan and Reimbursement
Obligation. Each Lender's obligation to purchase its Total Commitment Percentage
of the Swing Loan and the SouthTrust obligation to purchase its Total Commitment
Percentage in the Revolving Loan shall be absolute and unconditional and shall
not be affected by any circumstance, including, without limitation, (i) any
setoff, counterclaim, recoupment, defense or other right which such Lender or
any other Person may have against SouthTrust or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or Event of Default
or the Commitment Termination Date; (iii) any adverse change in the condition
(financial or otherwise) of any Credit Party or any of their Subsidiaries; (iv)
any breach of this Agreement or any of the other Credit Documents by any Credit
Party, SouthTrust, or any Lender; or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
Notwithstanding anything to the contrary contained in this Agreement, after an
Event of Default and termination of the Swing Loan, all subsequent Advances, if
any, shall be made based upon the Total Commitment Percentage and the term
"Revolving Commitment Percentage", as contained in this Agreement, shall read as
"Total Commitment Percentage".
Article 6.........GENERAL PROVISIONS RELATING TO
ALL LOANS AND LETTERS OF CREDIT
6.1 Interest Calculation; Late Charge; Default Rate.
(a) All rates of interest to be applied to the principal of the Loans shall be
calculated on a simple basis for a 360-day year by multiplying the outstanding
principal amount by the applicable per annum rate, multiplying the product
thereof by the actual number of days elapsed, and dividing the product so
obtained by 360.
(b) Borrower shall pay to Agent, for the account of Lenders, a late charge equal
to two percent (2%) of any payment which is not received by Agent within fifteen
(15) days of the due date therefor in order to cover the additional expenses
incident to the handling and processing of delinquent payments.
(c) Upon the occurrence and during the continuance of an Event of Default, the
outstanding principal balance of the Loans shall bear interest at the Default
Rate.
6.2 Use of Proceeds. The proceeds of the Loans shall be used by Borrower, and
the Letters of Credit shall be used by Borrower, for pre-development costs,
development costs, acquisition costs, working capital, equity investments,
repayment of indebtedness, and general corporate purposes of Borrower.
6.3 Place, Manner, Time and Extension of Payment. All sums payable hereunder and
under the Notes shall be paid to Agent for the account of the Lenders (or, in
the case of Competitive Bid Notes, for the account of the applicable Lender, and
in the case of the Swing Loan Note, for the account of SouthTrust) at Agent's
principal office in Birmingham, Alabama, not later than 12:00 P.M. (Birmingham,
Alabama, time) on the date due in collected funds. If any payment falls due on a
day which is not a Domestic Business Day, then such due date shall be extended
to the next succeeding Domestic Business Day but during any such extension all
unpaid principal of the Loans, and other sums bearing interest shall continue to
bear interest at the rates herein provided. The Agent shall send Borrower
statements of all accrued interest hereunder, which statements shall be
considered correct and conclusively binding on the Borrower absent manifest
error unless Borrower notifies Agent to the contrary within ten (10) days of its
receipt of any statement which it deems to be incorrect. Provided an Event of
Default has occurred, the Lenders may, in their sole discretion, charge against
any deposit account of the Credit Parties maintained at any of the Lenders, all
or any part of any amount due under this Agreement, the Notes, or the other
Credit Documents, provided any such amount charged against a deposit account
shall be allocated among Agent and Lenders as provided in Section 6.5(e) and in
accordance with Section 14.4 hereof. Any payment made by Credit Parties to Agent
pursuant to this Section 6.3 shall, to the extent such payment is required to be
transmitted by Agent to the other Lenders pursuant to Section 6.5 discharge that
portion of Credit Parties' obligation under the Notes.
6.4 Obligation to Pay Loans Absolute. Notwithstanding anything to the contrary
contained herein, the Credit Parties' obligation to pay the principal of and
interest on the Loans, and all expenses and charges with respect thereto, is
absolute and unconditional.
6.5 Application of Payments.
(a) All payments and other collections required or permitted to be made
under the Notes, the Reimbursement Obligation, the Credit Agreement, or
otherwise in respect to the Loan, or the Letters of Credit shall be
remitted to Agent whether made directly by the Borrower, through the
Cash Management Agreements, by means of setoff or otherwise. Prior to
an Event of Default the Borrower shall at the time it makes payment
under this Credit Agreement, specify to Agent the Loans, Reimbursement
Obligation, fees or other amounts payable by Borrower hereunder to
which such payment is to be applied, and if Borrower fails to specify,
or if such application would be inconsistent with the terms hereof,
such payments shall be applied first to the Swing Loan, then pro rata
to the Revolving Loan, the Reimbursement Obligation, and the
Competitive Bid Loans. Notwithstanding the foregoing, Agent may, in its
discretion (and absent any directive from the Borrower to the contrary)
elect to apply all or any portion of a payment to the Revolving Loan
prior to application on the Swing Loan. Upon receipt of a payment or
other collection from Credit Parties or otherwise received in respect
of the Loans or Reimbursement Obligation, such payment shall be
impressed with a trust in favor of Lenders to the extent of their
respective Total Commitment Percentage of such payment. Any Defaulting
Lender shall not be entitled to its Revolving Commitment Percentage of
any payments on the Revolving Loan until the non-Defaulting Lenders
have been fully paid for the Revolving Advance which was not funded by
Defaulting Lender. Payments received on the Revolving Loan or
Reimbursement Obligation, whether made directly by the Credit Parties,
through the Cash Management Agreements, or from any source whatsoever,
shall be paid to the Lenders according to their respective Revolving
Commitment Percentages in the Revolving Loan and Reimbursement
Obligation, subject to the foregoing sentence. Payments received on the
Swing Loan shall be paid to SouthTrust and payments received on a
Competitive Bid Loan shall be paid to the applicable Lender of the
Competitive Bid Loans. All payments required to be transmitted by Agent
to the Lenders shall be made in immediately available funds.
(b) If a payment is made on the Revolving Loan, on or before 12:00 P.M.
(Birmingham, Alabama, time) of the same day, Agent shall provide each
Lender with notice of their Revolving Commitment Percentage of such
payment and shall send such payment via wire transfer to such Lender to
the accounts specified on Schedule 6.5 (or such other account as such
Lender may hereafter designate in writing) on the same day. If a
payment is made on the Swing Loan, on or before 1:00 P.M. (Birmingham,
Alabama, time) of the same day, Agent shall provide SouthTrust with
notice of its Swing Commitment Percentage of such payment and shall
send such payment via wire transfer to SouthTrust to the accounts
specified on Schedule 6.5 (or such other account as SouthTrust may
hereafter designate in writing) on the same day.
(c) All other payments and collections received in respect of the Loans or
Reimbursement Obligation, whether principal, interest or fees shall be
transmitted by Agent to SouthTrust and/or the Lenders (as applicable)
on the same Domestic Business Day that Agent has received collected
funds, if Agent receives collected funds before 12:00 P.M. (Birmingham,
Alabama, time); otherwise Agent will distribute payment on the next
Domestic Business Day. If Agent fails to distribute payment when
required pursuant to the foregoing sentence, then the amount of such
payment shall bear interest payable to Lenders at a rate equal to the
federal funds rate.
(d) In the event Agent is compelled to return or refund any payment or sum
previously received from or on behalf of Credit Parties and remitted to
the Lenders, by reason of the same being declared a preferential
transfer in a bankruptcy proceeding or for any other reason, each of
the Lenders shall, on demand of Agent, immediately reimburse Agent for
such Lender's Revolving Commitment Percentage or SouthTrust's Swing
Commitment Percentage of such payment, together with its Revolving
Commitment Percentage or Swing Commitment Percentage of interest
assessed against Agent or incurred by Agent between the time of return
of such payment by Agent and the time of reimbursement by such Lender.
(e) Notwithstanding the provisions of subsection (a) above, upon the
occurrence and during the continuance of an Event of Default, all
amounts collected or received by Agent or any Lender on account of
amounts outstanding under any of the Credit Documents shall be paid as
follows:
(i) First, to the payment of all reasonable out-of-pocket expenses
(including without limitation reasonable attorneys' fees) of
Agent and Lenders in connection with enforcing their rights under
the Credit Documents;
(ii) Second, to payment of any fees due Agent for its own account and
for the account of the Lenders;
(iii) Third, to the accrued but unpaid interest on all Loans and
Reimbursement Obligation;
(iv) Fourth, to the principal balance of all Loans and Reimbursement
Obligations on a pro rata basis (based upon each Lender's
outstanding principal balance of all Loans and Reimbursement
Obligations);
(v) Fifth, to all other Credit Party Obligations not repaid pursuant
to (1) through (4) above; and
(vi) Sixth, the surplus, if any, to whoever may be lawfully entitled
thereto.
In carrying out the foregoing, (A) amounts received shall be applied in the
order named until exhausted prior to application to the next succeeding
category, (B) accrued interest shall be paid prior to principal and (C) each
Lender shall receive its Total Commitment Percentage of the amounts available to
be applied pursuant to clauses (2), (3), and (5).
6.6 Capital Adequacy. If, after the date hereof, any Lender has determined that
the adoption or the becoming effective of, or any change in, or any change by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of any applicable law, rule, or regulation regarding capital adequacy, or
compliance by such Lender, or its parent corporation, with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank, or comparable agency, has or would have the
effect of reducing the rate of return on such Lender's (or parent corporation's)
capital or assets as a consequence of its commitments or obligations hereunder
to a level below that which such Lender, or its parent corporation, could have
achieved but for such adoption, effectiveness, changes or compliance (taking
into consideration such Lender's (or parent corporation's) policies with respect
to capital adequacy), then, upon notice from such Lender to the Borrower, the
Borrower shall be obligated to pay to such Lender such additional amount or
amounts as will compensate such Lender on an after-tax basis (after taking into
account applicable deductions and credits in respect of the amount indemnified)
for such reduction, but in no event shall Borrower be obligated to pay for any
reduction or loss of return accruing more than 30 days prior to its receipt of
such notice. Each determination by any such Lender of amounts owing under this
Section shall, absent error, be conclusive and binding on the parties hereto.
6.7 Inability to Determine Interest Rate. If the Agent shall have determined in
good faith (which determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the LIBOR Plus Rate
for such month, the Agent shall give telecopy or telephonic notice thereof to
the Borrower and the Lenders as soon as practicable thereafter, and will also
give prompt written notice to the Borrower and Lenders when such conditions no
longer exist. If such notice is given, the outstanding principal balance of the
Loans shall commence to bear interest at a floating rate of interest determined
with reference to the Base Rate, plus or minus a margin determined by Lenders,
so as to most closely approximate the LIBOR Plus Rate in effect immediately
prior to such termination. Until such notice has been withdrawn by Agent, the
LIBOR Plus Rate shall be unavailable to Borrower. Furthermore, if Agent
determines, in accordance with reasonable and ordinary commercial standards,
that the acquisition of funds in the London interbank market would be unsafe,
impractical or in violation of any law, regulation, guideline or order, the
Agent shall give telecopy or telephonic notice thereof to Borrower and Lenders
as soon as practicable thereafter. If such notice is given, the outstanding
principal balance of any Competitive Bid Loan (but not the Revolving Loan or
Swing Loan), shall commence to bear interest at a floating rate of interest
determined in the manner set forth in the preceding sentences of this Section
6.7 until such notice has been withdrawn by Agent.
6.8 Increased Costs. If any change in any law or regulation or in the
interpretation or application thereof by any court, administration or other
governmental authority charged with the administration thereof shall either (i)
impose upon Agent or any Lender any other assessment or similar requirement
against the Loans or Letters of Credit or (ii) impose upon Agent or any Lender
any other condition regarding this Agreement, the Loans, the Letter of Credit
Agreements, or the Letters of Credit and the result of any event referred to in
clauses (i) or (ii) above shall be to increase the cost to Agent of issuing or
maintaining a Letter of Credit or to increase the cost to Agent or Lenders to
make the Loans (which increase in cost shall be the result of Agent's and
Lenders' reasonable allocation of the aggregate of such cost increases resulting
from such events), then, upon written demand by Agent, Borrower shall
immediately pay to Agent for its account, or for the account of Lenders, as the
case may be, from time to time as specified by Agent, additional amounts which
shall be sufficient to compensate Agent and Lenders for such increased costs,
together with interest on each such amount from the date demanded until payment
in full thereof at the Default Rate, but in no event shall Borrower be obligated
to pay for any such increased costs accruing more than thirty (30) days prior to
its receipt of such demand. A certificate as to such increased costs incurred by
Agent submitted to Borrower, shall be conclusive, absent error, as to the amount
thereof.
6.9 Continuation and Conversion Elections. By delivering a notice (a "Notice of
Continuation or Conversion"), which shall be substantially in the form of
Exhibit N, to the Agent on or before 12:30 P.M. (Birmingham, Alabama, time), on
a Domestic Business Day, in the case of Base Rate Loans, the Borrower may from
time to time irrevocably elect, by notice on the same Domestic Business Day,
that all, or any portion in an aggregate principal amount of $1,000,000 or any
larger integral multiple of $500,000 be converted into Euro-Dollar Loans. By
delivering a Notice of Continuation or Conversion, to the Agent on or before
12:30 P.M. (Birmingham, Alabama, time), on a 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 third (3rd) Euro-Dollar Business Days prior
to the last day of the applicable Interest Period, that all, or any portion in
an aggregate principal amount of $1,000,000 or any larger integral multiple of
$500,000, be converted into Base Rate Loans or continued as Euro-Dollar Loans
(in the absence of delivery of a Notice of Continuation or Conversion as set
forth herein, such Euro-Dollar Loan shall, on the day following such last day of
such applicable Interest Period, automatically convert to a Base Rate Loan).
Provided, however, that (i) each such conversion or continuation shall be pro
rated among the applicable outstanding Loans of all Lenders that have made such
Loans, and (ii) 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. Such Notice of Continuation or
Conversion shall be promptly delivered to the Lenders.
6.10 Funding Losses; Prepayment. The Borrower shall pay to the Agent for account
of each Lender, upon the request of such Lender through the Agent within fifteen
(15) business days, an amount, as set forth below, to compensate such Lender for
any loss, cost or expense as determined pursuant to the provisions set forth
below that such Lender reasonably determines is attributable to:
(a) any payment or prepayment (whether mandatory or optional) of a Euro-Dollar
Loan or Conversion of a Euro-Dollar Loan for any reason (including, without
limitation, acceleration) on a date other than the last day of the Interest
Period for such Loan; or
(b) any failure by the Borrower for any reason to borrow a Euro-Dollar Loan from
such Lender on the date for borrowing, or to convert a Base Rate Loan into a
Euro-Dollar Loan or continue a Euro-Dollar Loan on the requested date of such
conversion or continuation.
Such compensation shall include and be limited to, in the case of a
Euro-Dollar Loan, an amount equal to (A) the then present value of the amount of
interest that would have accrued on such Euro-Dollar Loan for the remainder of
the Interest Period at the rate applicable to such Euro-Dollar Loan, less (B)
the then present value of the amount of interest that would accrue on the same
Euro-Dollar Loan for the same period if the LIBOR Rate were set on the date on
which such Euro-Dollar Loan was repaid, prepaid or converted or the date on
which the Borrower failed to borrow, convert or continue such Euro-Dollar Loan,
as applicable, calculating present value by using as a discount rate the LIBOR
Rate quoted on such date. Upon the Borrower's request, any Lender requesting
compensation under this Section shall provide the Borrower with a statement
setting forth the basis for requesting such compensation and the method for
determining the amount thereof and such statement shall be delivered to Agent
within ten (10) business days of such loss or expense. Any such statement shall
be conclusive absent manifest error. Without limitation of any losses or
expenses arising from changes in the Euro-Dollar Loan adverse to the Lenders, in
no event will the administrative cost payable by the Borrower as a result of
such early payment or failure to make an advance exceed $250 per occurrence per
Lender.
6.11 Expansion of Facility. At the request of the Borrower, so long as no
Default or Event of Default exists, the aggregate amount of the Total Commitment
may be increased at any time prior to the Commitment Termination Date to an
aggregate amount not in excess of $400,000,000 without any amendment to this
Agreement and without consent of the Lenders, by the execution and delivery by
any new Lender or increased commitment from any of the existing Lenders
(provided, however, that no Lender's Total Commitment may be increased without
such Lender's consent), which has been approved by the Borrower and the Agent (a
"Joining Lender") of a Lender Joinder Agreement (substantially in the form of
Exhibit O). Neither the Agent, the Borrower nor any Credit Party shall have any
obligation to offer the increase in the amount of the Total Commitment to the
existing Lenders. On the effective date of such joinder: (i) the Agent shall
notify all other Lenders thereof, including the name, notice address and amount
of Total Commitment of the Joining Lender; (ii) the Borrower shall execute and
deliver to the Agent for re-delivery to the Lender, as appropriate, a Revolving
Note payable to the Joining Lender in the amount of its Total Commitment, after
giving effect to such joinder; and (iii) the Joining Lender shall purchase from
each other Lender a pro rata participation in such other Lender's existing
Revolving Loans, including in any right of payment pursuant to Section 6.5 with
respect thereto, so that, after giving effect thereto, each Lender's Total
Commitment Percentage and Revolving Commitment Percentage will be revised to
account for such increase in the Total Commitment and each Lender (including the
Joining Lender) will have risk for such existing Loans and Reimbursement
Obligations (other than Competitive Bid Loans) equal to its revised Revolving
Commitment Percentage and Total Commitment Percentage. Loans made after the
effective date of such joinder shall not be subject to the foregoing, and the
Joining Lender shall fund its share thereof in accordance with its Total
Commitment.
6.12 Term.
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(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 accrued but unpaid interest thereon, if any, shall
be due and payable on November 22, 2005, unless the Maturity Date is otherwise
extended as set forth herein. Upon the written request of the Borrower, which
request shall be delivered to the Agent prior to or on the Maturity Extension
Date (as such term is hereinafter defined), the Borrower shall have the option
of extending the Commitment Termination Date for an additional one-year period
six (6) months prior to the Maturity Date without the consent of any Lender
("Maturity Extension Date") provided Borrower satisfies the Extension
Conditions. The Extension Conditions are (a) a written certification that
provides (i) that no Event of Default exists as to the Agreement and (ii) that
the Borrower is in compliance with all financial covenants set forth in Section
11.8 and provides all necessary supporting documentation, (b) Borrower's payment
to Agent on behalf of the Lenders of the Extension Fee on the Maturity Extension
Date and (c) all Guarantors have consented to such extension in writing. Upon
written notice and satisfaction on any of the Extension Conditions as determined
by Agent in its reasonable discretion, the Maturity Date shall be automatically
extended from thirty-six (36) months from the Closing Date to forty-eight (48)
months from the Closing Date and Agent shall promptly give each Lender notice of
such extension.
(c) Borrower agrees to execute such documentation to reflect the extension of
the Commitment Termination Date as Lenders may reasonably request, and to pay
all reasonable costs and expenses of Lenders and their respective counsel
incurred in connection therewith.
6.13 Miscellaneous. The Agent and the Borrower shall determine each Lender's
Total Allocated Commitment prior to the Closing Date. Except as provided herein,
at no time during the term of the Loans shall any Lender's Total Commitment
Percentage be greater than SouthTrust's Total Commitment Percentage.
Notwithstanding the foregoing, if there is a merger of any of the Lenders with
another Lender then SouthTrust shall not be required to have a Total Commitment
Percentage greater than any other Lender.
6.14 Discontinuance of Advances. Notwithstanding anything to the contrary
contained in this Agreement, if an involuntary proceeding as more particularly
set forth in Section 12.1(e) or an event as set forth in Section 12.1(j) should
occur prior to such involuntary proceeding or event becoming an Event of
Default, then no further advances of the Loans shall be made under Articles 2,
4, and 5 of the Agreement or issuances of Letters of Credit under Article 3 of
the Agreement shall be made until (i) (a) the involuntary proceeding has been
dismissed or vacated or (b) the order, judgment, or decree decreeing the
dissolution or split up of such Credit Party has been discharged or stayed or
(ii) the Required Lenders have approved making further advances pursuant to
Article 2, 4, and/or 5 of this Agreement or issuances of Letters of Credit
pursuant to Article 3 of this Agreement. Once an event or act under Sections
12.1(e) and (j) rises to the level of an Event of Default then Section 12.2 of
this Agreement shall control and not this Section 6.14 of the Agreement.
Article 7.........GUARANTY
7.1 Guaranty of Payment. Guarantors hereby unconditionally guarantee to each
Lender and the Agent the prompt payment of the Credit Party Obligations in full
when due (whether at stated maturity, as a mandatory prepayment, by acceleration
or otherwise). The Guarantors additionally unconditionally guarantee to each
Lender and the Agent the timely performance of all other obligations under the
Credit Documents. This Guaranty is a guaranty of payment and performance and not
of collection and is a continuing guaranty and shall apply to all Credit Party
Obligations whenever arising. The term "Guarantor" shall include any Significant
Subsidiary, and each of the Credit Parties agrees to notify Agent in writing
promptly of the existence at any time of a Significant Subsidiary and cause such
Significant Subsidiary, whether such Person now exists or is later formed, to
execute such guaranty agreements or other documentation evidencing a guaranty of
the Credit Party Obligations, continuing the terms set forth in this Article 3
and otherwise acceptable to Agent.
7.2 Obligations Unconditional. The obligations of the Guarantors hereunder are
absolute and unconditional, irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Credit Documents, the insolvency of
any Credit Party, or any other agreement or instrument referred to therein, to
the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor. Guarantors agree that this
Guaranty may be enforced by the Lenders without the necessity at any time of
resorting to or exhausting any other security or collateral and without the
necessity at any time of having recourse to the Notes or any other of the Credit
Documents or any collateral, if any, hereafter securing the Credit Party
Obligations or otherwise and Guarantors hereby waive the right to require the
Lenders to proceed against the Borrower or any other Person (including a
co-guarantor) or to require the Lenders to pursue any other remedy or enforce
any other right. Guarantors further agree that they shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower or
any other Guarantor of the Credit Party Obligations for amounts paid under this
Guaranty until such time as the Lenders have been paid in full, all Total
Commitments under the Credit Agreement have been terminated and no Person shall
have any right to request any return or reimbursement of funds from the Lenders
in connection with monies received under the Credit Documents. Guarantors
further agree that nothing contained herein shall prevent the Lenders from suing
on the Notes or any of the other Credit Documents or foreclosing its security
interest in or Lien on any collateral, if any, securing the Credit Party
Obligations or from exercising any other rights available to it under this
Credit Agreement, the Notes, any other of the Credit Documents, or any other
instrument of security, if any, and the exercise of any of the aforesaid rights
and the completion of any foreclosure proceedings shall not constitute a
discharge of any of the Guarantors' obligations hereunder; it being the purpose
and intent of Guarantors that their obligations hereunder shall be absolute,
independent and unconditional under any and all circumstances. Neither
Guarantors' obligations under this Guaranty nor any remedy for the enforcement
thereof shall be impaired, modified, changed or released in any manner
whatsoever by an impairment, modification, change, release or limitation of the
liability of the Borrower or by reason of the bankruptcy or insolvency of the
Borrower. Guarantors waive any and all notice of the creation, renewal,
extension or accrual of any of the Credit Party Obligations and notice of or
proof or reliance by the Agent or any Lender upon this Guaranty or acceptance of
this Guaranty. The Credit Party Obligations, and any of them, shall conclusively
be deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon this Guaranty. All dealings between the
Borrower and the Guarantors, on the one hand, and the Agent and the Lenders, on
the other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon this Guaranty.
7.3 Modifications. Guarantors agree that (a) all or any part of the security (if
any) now or hereafter held for the Credit Party Obligations, if any, may be
exchanged, compromised or surrendered from time to time; (b) the Lenders shall
not have any obligation to protect, perfect, secure or insure any such security
interests, liens or encumbrances now or hereafter held, if any, for the Credit
Party Obligations or the Properties subject thereto; (c) the time or place of
payment of the Credit Party Obligations may be changed or extended, in whole or
in part, to a time certain or otherwise, and may be renewed or accelerated, in
whole or in part; (d) the Borrower and any other party liable for payment under
the Credit Documents may be granted indulgences generally; (e) any of the
provisions of the Notes or any of the other Credit Documents may be modified,
amended or waived; (f) any party (including any co-guarantor) liable for the
payment thereof may be granted indulgences or be released; and (g) any deposit
balance for the credit of the Borrower or any other party liable for the payment
of the Credit Party Obligations or liable upon any security therefor may be
released, in whole or in part, at, before or after the stated, extended or
accelerated maturity of the Credit Party Obligations, all without notice to or
further assent by such Guarantors, which shall remain bound thereon,
notwithstanding any such exchange, compromise, surrender, extension, renewal,
acceleration, modification, indulgence or release.
7.4 Waiver of Rights. Guarantors expressly waive to the fullest extent permitted
by applicable law: (a) notice of acceptance of this Guaranty by the Lenders and
of all extensions of credit to the Borrower by the Lenders; (b) presentment and
demand for payment or performance of any of the Credit Party Obligations; (c)
protest and notice of dishonor or of Default or Event of Default (except as
specifically required in the Credit Agreement) with respect to the Credit Party
Obligations or with respect to any security therefor; (d) notice of the Lenders
obtaining, amending, substituting for, releasing, waiving or modifying any
security interest, lien or encumbrance, if any, hereafter securing the Credit
Party Obligations, or the Lenders' subordinating, compromising, discharging or
releasing such security interests, liens or encumbrances, if any; (e) all other
notices to which such Guarantors might otherwise be entitled; and (f) demand for
payment under this Guaranty.
7.5 Reinstatement. The obligations of the Guarantors under this Article 7 shall
be automatically reinstated if and to the extent that for any reason any payment
by or on behalf of any Person in respect of the Credit Party Obligations is
rescinded or must be otherwise restored by any holder of any of the Credit Party
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and Guarantor agrees that it will indemnify the
Agent and each Lender on demand for all reasonable costs and expenses
(including, without limitation, reasonable fees of counsel) incurred by the
Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
7.6 Remedies. The Guarantors agree that the Credit Party Obligations shall be
due and payable, without demand, on the Maturity Date, if applicable, and may be
declared to be forthwith due and payable as provided in Article 12 (and shall be
deemed to have become automatically due and payable in the circumstances
provided in Article 12) notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing such Credit Party
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or such Credit Party
Obligations being deemed to have become automatically due and payable), such
Credit Party Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors.
Article 8.........CONDITIONS PRECEDENT TO MAKING ADVANCES,
SWING LOAN ADVANCES, OR ISSUING LETTERS OF CREDIT
The obligations of Lenders to make any Advance to Borrower, the
obligation of Agent to issue Letters of Credit, and the obligation of SouthTrust
to make Swing Loan Advances, shall be subject to the satisfaction by Borrower of
the following conditions precedent (in addition to any such conditions precedent
as may be applicable pursuant to Article 2, 3, 4, and 5), as of the date of the
requested Advance, Swing Loan Advance or Letter of Credit.
(a) There shall exist no Event of Default, and no covenant, term, or
condition contained in any of the Credit Documents will be breached or
violated as a result of such Advance or the issuance of such Letter of
Credit.
(b) The representations and warranties of Credit Parties made in this
Agreement or in any certificate executed and delivered pursuant hereto
shall be true and accurate in all material respects.
(c) Credit Parties shall have performed or observed all agreements,
covenants, and conditions required by the Required Lenders or, in the
case of a Swing Loan Advance, SouthTrust, to be performed or observed
by Credit Parties, including, without limitation, the submission by
Borrower and approval by the Required Lenders or, in the case of a
Swing Loan Advance, SouthTrust, of any required Compliance Certificates
(provided, SouthTrust will cease Swing Loan Advances upon failure of
Borrower to satisfy this condition if instructed to do so in writing by
the Required Lenders).
(d) Credit Parties shall have duly executed the Credit Documents and Notes,
and shall have delivered the same to Lenders, together with any and all
other documents that Lenders or their legal counsel, in their
reasonable discretion, shall deem necessary to complete the
transactions contemplated hereunder.
(e) Any proceedings taken in connection with the performance and observance
of the provisions of this Agreement shall be reasonably satisfactory to
Lenders and their legal counsel.
(f) Prior to the first Advance, Agent shall have received, in form and
substance satisfactory to Agent and its counsel:
(i) Copies of the Organizational Documents for each of the Credit
Parties, certified on the Closing Date by the appropriate Person
on behalf of each of the Credit Parties.
(ii) Certificates of existence and good standing (or such similar
certificates) for each of the Credit Parties, all certified on or
within thirty (30) days of the Closing Date by the Secretary of
State of Alabama, and, in the case of CRLP, Delaware.
(iii) Copies of the resolutions of the Board of Trustees of CLP and,
to the extent necessary, the general partners of CRLP, certified
as of the Closing Date by the appropriate Person on behalf of
each of the Credit Parties, authorizing (A) the transactions
contemplated by this Agreement and (B) the execution, delivery
and performance by each of the Credit Parties of the Credit
Documents and the execution and delivery of all other documents
to be delivered by the Credit Parties in connection with the
transactions herein contemplated.
(iv) Incumbency certificates, dated as of the date of this Agreement,
executed by the appropriate Person on behalf of each of the
Credit Parties, which shall identify by name and title and bear
the signature of the officers of each Credit Party authorized to
sign the Credit Documents and all other documents executed in
connection with the transactions herein contemplated on behalf of
the Credit Parties. Lenders shall be entitled to rely upon such
incumbency certificates in completing the transactions herein
contemplated.
(v) The written opinion of legal counsel to the Credit Parties
acceptable to Lenders, dated the date of this Agreement,
addressed to Lenders and in form and substance acceptable to
Lenders and their legal counsel.
(vi) Such other agreements, instruments, approvals, opinions and other
documents as Lenders may reasonably request.
(vii) Payment to Agent for the account of the Lenders of the Up-Front
Fee and payment to Agent for its own account of the Agent Fee.
(viii) Evidence of property and liability insurance in such amounts,
and with such carriers, as is acceptable to Lenders.
Notwithstanding subsection (c) above, SouthTrust may elect to make any
Swing Loan Advance or Agent may establish any Letter of Credit (unless
SouthTrust or Agent is instructed in writing, prior thereto, not to do so by
Required Lenders), and the Lenders may (and will upon election of Required
Lenders) make any Advances even though subsection (c) is not satisfied.
Each request for an Advance or Swing Loan Advance, and each request for
issuance of a Letter of Credit shall constitute Credit Parties' representation
and warranty that each of the foregoing conditions and any conditions set forth
in this Agreement are satisfied on the date of such request, and on the date of
such Advance or Swing Loan Advance, or date of issuance of such Letter of
Credit, that all representations and warranties contained in the Credit
Documents are true and correct and that Credit Parties are in compliance with
all terms and conditions of the Credit Documents as of the date of such request
and the date of such Advance, or Swing Loan Advance, and issuance of such Letter
of Credit, as the case may be, and Agent and Lenders may rely upon such
representation and warranty without further inquiry.
Nothing in this Section is intended to restrict Lenders' obligation to
make a Revolving Advance required by Section 3.2 or 5.7(b) hereof.
Article 9.........REPRESENTATIONS AND WARRANTIES
To induce Lenders to enter into this Agreement, to induce Lenders to
make Advances hereunder, to induce Agent to issue Letters of Credit hereunder,
and to induce SouthTrust to make Swing Loan Advances, Credit Parties represent
and warrant to Lenders that:
9.1 Existence, Power and Qualification.
(a) CLP (1) is duly organized, validly existing and in good standing under the
laws of the State of Alabama, (2) has the power and authority and the legal
right to own its property and to conduct its business in the manner in which it
is now conducted or hereafter contemplates conducting its business, and (3)
qualifies as a "real estate investment trust" under the applicable provisions of
the Internal Revenue Code.
(b) CRLP (1) is duly organized, validly existing and in good standing under the
laws of the State of Delaware, (2) has the power and authority and the legal
right to own its property and to conduct its business in the manner in which it
is now conducted or hereafter contemplates conducting its business, and (3) is
duly qualified and registered to do business under the laws of the State of
Alabama and any other states where its ownership of property or conduct or
proposed conduct of its business requires such qualification.
(c) There are no Significant Subsidiaries (except as disclosed to Agent in
writing and which have provided a guaranty as required by Section 7.1).
9.2 Authority to Borrow Hereunder. Credit Parties have the power and authority
and the legal right to make, deliver and perform the Credit Documents. Credit
Parties have taken all necessary action on their part to authorize the
execution, delivery and performance of the Credit Documents, and the borrowing
contemplated thereby. No consent or authorization of, or filing with, any
federal, state, county or municipal government, or any department or agency of
any such government, is required of Credit Parties in connection with the
execution, delivery, performance, validity or enforceability of the Credit
Documents, or the borrowing contemplated hereby.
9.3 Due Execution and Enforceability. The Credit Documents have been duly
executed and delivered on behalf of Credit Parties, and constitute the legal,
valid and binding obligation of Credit Parties enforceable against Credit
Parties in accordance with their respective terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditor's rights generally, and
general principles of equity which may limit the availability of equitable
remedies.
9.4 No Conflict. The execution, delivery and performance of the Credit
Documents, and the consummation of the transactions contemplated therein, will
not (a) conflict with or be in contravention of any law, regulation, rule, order
or judgment applicable to Credit Parties or their Organizational Documents, or
any other agreement, instrument, mortgage, deed of trust, lien, lease, judgment,
decree or order to which Credit Parties are a party or are subject or by which
Credit Parties or their Properties are bound or affected, or (b) result in the
creation of any Lien upon any of the Properties of any of the Credit Parties.
9.5 Material Claims. There is no litigation, claim, lawsuit, investigation,
action or other proceeding pending or, to the knowledge of Credit Parties,
threatened before any court, agency, arbitrator or other tribunal which
individually or in the aggregate might result in any material adverse change in
the financial condition, operations, businesses or prospects of any of the
Credit Parties.
9.6 Financial Statements Accurate. All financial statements heretofore or
hereafter provided by the Credit Parties are and will be true and complete in
all material respects as of their respective dates and will fairly present the
financial condition of the Credit Parties, and there are no liabilities, direct
or indirect, fixed or contingent, as of the dates of such statements which are
not reflected therein or in the notes thereto or in a written certificate
delivered with such statements. All financial statements have been or will be
prepared in accordance with GAAP and any requirements of SEC. There has been no
material adverse change in the financial condition, operations, or prospects of
any Credit Parties, since the date of such statements except as fully disclosed
in writing with the delivery of such statements.
9.7 No Defaults or Restrictions. There is no declared default under any
agreement or instrument nor does there exist any restriction in the
Organizational Documents of Credit Parties that causes or would cause a material
adverse effect on the business, properties, operations or condition, financial
or otherwise, of Credit Parties (there are, however, typical restrictions
applicable to real estate investment trusts under the Internal Revenue Code).
9.8 Payment of Taxes. Credit Parties have filed all federal, state, and local
tax returns which are required to be filed and have paid, or made adequate
provision for the payment of, all taxes which have or may become due pursuant to
said returns or to assessments received by Borrower.
9.9 Necessary Permits, Etc. Credit Parties possess all franchises, trademarks,
permits, licenses, consents, agreements and governmental approvals that are
necessary or required by any authority to carry on their businesses as now
conducted. Credit Parties have received no notice of default or termination of
any material agreement or any notice of noncompliance with any law, rule or
regulation by which they are bound, which would cause a material adverse effect
upon the business, properties, operations or condition, financial or otherwise,
of any of the Credit Parties.
9.10 Regulation U. Credit Parties are not engaged and will not engage,
principally or as one of their important activities, in the business of
extending credit for the purpose of "purchasing" or "carrying" any "margin
stock" (as each of the quoted terms is defined or used in Regulation U), and no
part of the Loans will be used for so "purchasing" or "carrying" "margin stock"
or for any purpose which violates, or which would be inconsistent with, the
provisions of Regulation U. If requested by Lenders, Borrower will furnish to
Lenders a statement in conformity with the requirements of Regulation U to the
foregoing effect.
9.11 Title to Assets. Credit Parties have good and marketable title to all
of their assets.
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9.12 Compliance with Applicable Environmental Law. Credit Parties represent and
warrant to Lenders that, except as set forth in Schedule 9.12, the Properties
and Credit Parties are not in violation of or subject to any existing, pending
or, to the best of Credit Parties' knowledge, threatened investigation or
inquiry by any governmental authority or any response costs or remedial
obligations under any Applicable Environmental Law, and this representation and
warranty would continue to be true and correct following disclosure to the
applicable governmental authorities of all relevant facts, conditions and
circumstances, if any, pertaining to the Properties; that Credit Parties have
not obtained and are not required to obtain any permits, licenses or similar
authorizations to construct, occupy, operate or use any buildings, improvements,
fixtures or equipment located upon the Properties by reason of any Applicable
Environmental Law; that Credit Parties have taken all steps reasonably necessary
to determine and have determined that no petroleum products, oil, hazardous
substances, or solid wastes have been disposed of or otherwise released on the
Properties; and that the use which Credit Parties have made, make or intend to
make of the Properties will not result in the location on or disposal or other
release of any petroleum products, oil, hazardous substances or solid waste on
or to the Properties. Credit Parties hereby agree to pay any fines, charges,
fees, expenses, damages, losses, liabilities, or response costs arising from or
pertaining to the application of any such Applicable Environmental Law to the
Properties and to indemnify and forever save Lenders harmless from any and all
judgments, fines, charges, fees, expenses, damages, losses, liabilities,
response costs, or attorneys' fees and expenses arising from the application of
any such Applicable Environmental Law to the Projects or Agent. Each of the
Credit Parties agree to notify Lenders in the event that any governmental agency
or other entity notifies any of them that they may not be in compliance with any
Applicable Environmental Law. Credit Parties agree to permit Lenders to have
access to the Properties at all reasonable times in order to conduct, at Credit
Parties' expense, any tests which Lenders deem are necessary to ensure that
Credit Parties and the Properties are in compliance with all Applicable
Environmental Laws. Terms used in this Section 9.12 which are defined in any
Applicable Environmental Law shall have the meanings given therein.
9.13 Disclosure. Neither this Agreement nor any other document, financial
statement, credit information, certificate or statement required herein to be
furnished to Lenders by Credit Parties in connection with this Agreement
contains any untrue, incorrect or misleading statement of material fact, and all
of these documents taken as a whole do not omit to state a fact material to this
Agreement, to Lenders' decision to enter into this Agreement or to the
transactions contemplated hereunder. All representations and warranties made
herein or any certificate or other document delivered to Lenders by or on behalf
of Credit Parties, pursuant to or in connection with this Agreement, shall be
deemed to have been relied upon by Lenders notwithstanding any investigation
heretofore or hereafter made by Lenders or on their behalf, and shall survive
the making of Advances as contemplated hereby.
9.14 Insolvency. Credit Parties are now and, after giving effect to the
transactions contemplated hereby, at all times will be, solvent, as determined
in accordance with GAAP.
9.15 ERISA. Each Credit Party is in compliance with all applicable material
provisions of ERISA. No Credit Party has received any notice to the effect that
it is not in full compliance with any of the requirements of ERISA and the
regulations promulgated thereunder. No fact or situation that could result in a
material adverse change in the financial condition of Credit Parties, including,
but not limited to, any Reportable Event or Prohibited Transaction, exists in
connection with any Employee Plan. Neither Credit Parties nor any of the
Subsidiaries has any withdrawal liability in connection with a Multiemployer
Plan.
9.16 Existing Debt. To the best of their knowledge, Credit Parties are not in
default with respect to any of their existing Debt. No Credit Party has received
any written notice of a default or event of default from any creditor with
respect to Credit Party's Debt. The Total Liabilities of the Credit Parties are,
and will be, accurately and completely set forth in an attachment to the
Compliance Certificate.
Article 10........AFFIRMATIVE COVENANTS
Credit Parties agree and covenant that until the Loans and
Reimbursement Obligation have been paid in full, and the Commitment Period has
expired, Credit Parties shall comply with each of the following affirmative
covenants:
10.1 Payment of Loans and Reimbursement Obligation; Maintenance of Maximum
Borrowing Base. Borrower will duly and punctually pay the principal and interest
of the Loans in accordance with the terms of this Agreement and the Notes; will
duly and punctually pay the Reimbursement Obligation and interest thereon in
accordance with the terms of this Agreement and the Letter of Credit Agreements;
will timely pay and perform all other Credit Obligations and will maintain the
Maximum Borrowing Base at an amount that at all times equals or exceeds the sum
of the outstanding principal of the Revolving Loan plus the Reimbursement
Obligation, plus the outstanding principal balance of Competitive Bid Loans,
plus the outstanding principal balance of the Swing Loan.
10.2 Insurance. Credit Parties will maintain insurance with insurance companies
satisfactory to Lenders on such of their Properties, in such amounts and against
such risks as is customarily maintained in similar businesses operating in the
same vicinities, and file with Agent upon request, from time to time, a detailed
list of the insurance then in effect, stating the names of the insurance
companies, the amounts and rates of the insurance, dates of expiration thereof,
and the Properties and risks covered thereby, and within ten (10) days after
notice in writing from Agent, shall obtain additional insurance as Lenders may
reasonably request. All liability insurance policies shall name Agent, as agent
for Lenders, as additional insured, and shall provide Agent with a certificate
confirming that such insurance is in effect and cannot be canceled without
giving Agent at least thirty (30) days' prior written notice of such
cancellation. Credit Parties shall give Agent prompt notice of any casualty loss
in excess of $1,000,000 occurring at any of the Properties.
10.3 Maintenance of Existence. Credit Parties will maintain their existence and,
in each jurisdiction in which the character of the properties owned by any of
the Credit Parties or in which the transaction of their businesses makes
qualification necessary, maintain such qualification and good standing.
10.4 Compliance with Laws; Payment of Claims. Credit Parties will comply in all
material respects with all applicable laws, rules, regulations and orders
(including, without limitation, Applicable Environmental Laws and ERISA); pay
before the same become delinquent all taxes, assessments and governmental
charges or levies imposed upon Credit Parties or upon their income or profits or
upon any of their Properties; and pay all lawful claims, which, if unpaid, might
become a Lien upon any of their Properties, except to the extent contested in
good faith by proper proceedings which stay the imposition of any penalty, fine
or Lien resulting from the nonperformance or nonpayment thereof and with respect
to which adequate reserves have been set aside for payment thereof.
10.5 Accrual and Payment of Taxes. Credit Parties will accrue all current tax
liabilities of all kinds, all required withholdings of income taxes of
employees, all required old age and unemployment contributions, and pay the same
when they become due, unless appropriate extensions are obtained.
10.6 Maintenance of Properties. Each of the Credit Parties will keep all of its
Properties, in good repair, working order and condition, reasonable wear and
tear excepted, and from time to time make all needed and proper repairs,
renewals, replacements, additions, and improvements thereto as is necessary for
items that have become obsolete or worn in the ordinary course of business, and
comply with the provisions of all leases to which Credit Parties are parties or
under which they occupy Property so as to prevent any loss or forfeiture thereof
or thereunder.
10.7 Other Indebtedness. Credit Parties will duly and punctually pay or cause to
be paid all principal and interest of any indebtedness of Credit Parties to
Lenders or to other creditors, comply with and perform all conditions, terms and
obligations of the notes or other instruments evidencing such indebtedness and
the mortgages, deeds of trust, security agreements and other instruments
evidencing security for such indebtedness.
10.8 Examination and Visitation By Lenders. At any reasonable time and from time
to time upon reasonable notice and during normal business hours, Credit Parties
will permit Lenders or their representatives to examine and make copies and
abstracts from the records and books of account of, and visit the Properties of,
Credit Parties, and to discuss the affairs, finances and accounts of Credit
Parties with any of their respective officers, directors or employees.
10.9 Accounting Records. Credit Parties will keep adequate records and books of
account, with complete entries made in accordance with GAAP consistently
applied, reflecting all of their financial transactions.
10.10 Maintenance of Permits, Etc. Credit Parties will obtain, maintain and
preserve all permits, licenses, authorizations, approvals, certificates and
accreditation which are necessary for the proper conduct of their businesses.
10.11 Conduct Business. Credit Parties will conduct their businesses as now
conducted and do all things necessary to preserve, renew and keep in full force
and effect their rights and franchises necessary to continue such businesses.
10.12 Correction of Defect, Etc. On request of Lenders, Credit Parties will
promptly correct any scrivener's error which may be discovered in the contents
of the Credit Documents, or in the execution thereof, and execute and deliver
such further instruments and do such further acts as may be necessary or as may
be requested by Lenders to carry out more effectively the purposes of this
Agreement.
10.13 Financial and Other Information. Credit Parties will provide Lenders with
the following financial statements and other information on a continuing basis:
(a) Within one hundred (100) days after the end of the respective fiscal years
of Credit Parties, annual audited consolidated financial statements of Credit
Parties, prepared by a nationally recognized accounting firm or an independent
certified public accounting firm acceptable to the Lenders, which statements
shall include a balance sheet and a statement of income and expenses for the
year then ended and consolidated and consolidating schedules.
(b) Within fifty (50) days after the end of each fiscal quarter, unaudited
financial statements of the Credit Parties, prepared in accordance with GAAP and
consistent with the annual statements, which statements shall include a detailed
balance sheet and statement of income and expenses for the quarter then ended
and shall be certified by the treasurer or chief financial officer of each of
Credit Parties to be true and correct.
(c) Within fifty (50) days after the end of each fiscal quarter ending June 30
and December 31, the Borrower shall provide Lenders a four quarter projection
for income statement, balance sheet, cash flow, and financial covenants of
Borrower.
(d) Simultaneously with the filing or mailing thereof, copies of any filings
made by CLP with the Securities and Exchange Commission or mailings made by CLP
to its shareholders, including, without limitation, copies of CLP's proxy
statements, annual reports, Form 10-K, Form 10-Q, and Form 8-K (if filed).
(e) To the extent a Credit Party is aware of the same, prompt notice of the
commencement of any proceeding or investigation by or before any governmental
authority and any action or proceeding in any court or other tribunal or before
any arbitrator against or in any other way relating adversely to, or adversely
affecting, any Credit Party or its respective properties, assets or business
which, if determined or resolved adversely to such Credit Party, could have a
material adverse effect on the operations or financial condition of such Credit
Party.
(f) Prompt notice of any amendment to any Organizational Documents of a Credit
Party.
(g) Prompt notice of any change in the Senior Management of any Credit Party.
For purposes hereof, "Senior Management" means Xxxxxx X. Xxxxxx, Xxxxxx X.
Xxxxxx, Xx., Xxxx Xxxxxxx, X. Xxxxxxxx Xxxxxxxx, III and Xxxxxxx XxXxxxx.
(h) Prompt notice of any change in the business, assets, liabilities, financial
condition, results of operations or business prospects of any Credit Party or
any Subsidiary which has had or may have a material adverse effect on such
Person's operations or financial condition.
(i) Prompt notice of the occurrence of any Default or Event of Default
hereunder, under any other Credit Documents or under the documents evidencing
any Debt of any of the Credit Parties.
(j) Prompt notice of the acquisition, incorporation, or other creation of any
Subsidiary or Joint Venture in which Credit Parties have an ownership interest
of $10,000,000 or more.
(k) Promptly upon receipt thereof, copies of all reports, if any, submitted to
any Credit Party or to such Credit Parties' Board of Directors, Board of
Trustees, or partners, as applicable, by its independent public accountants,
including, without limitation, any management report.
Lenders reserve the right to require such other financial information
of Credit Parties, at such other times, as Lenders shall deem necessary, and
Credit Parties agree promptly to provide such information to Lenders. All
financial statements must be in the form and detail as the Lenders may from time
to time reasonably request.
10.14 Compliance Certificate. At the time of furnishing the quarterly financial
statements required under the foregoing Section, within ten (10) Domestic
Business Days of any purchase, sale, acquisition, merger, or similar transaction
wherein the value of the transaction equals or exceeds $30,000,000, or the
assumption of additional debt in excess of $30,000,000, or the issuance of a
Letter of Credit under the Revolving Loan, and within ten (10) Domestic Business
Days of the removal of any Property from the Pool, Credit Parties shall submit
to Lenders a compliance certificate in the form attached hereto as Exhibit E,
with all information completed, attached, and certified by the treasurer or
chief financial officer of each of Credit Parties as complete and correct.
10.15 Employee Plan Reports and Notices. Credit Parties will, upon request,
promptly furnish to Lenders after the filing or receipt thereof, copies of all
reports and notices, if any, which Credit Parties file under the Internal
Revenue Code or ERISA with the Internal Revenue Service, the Pension Benefit
Guaranty Corporation or the U.S. Department of Labor, or which Credit Parties
receive from any such agency, with respect to any Employee Plan, if any of the
information therein could form the basis of, or any dispute referred to therein
which, if determined adversely to Credit Parties, could constitute or give rise
to, an Event of Default.
10.16 Ownership. CLP shall at all times be the sole general partner of CRLP.
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10.17 REIT Status. CLP will maintain its status as a real estate investment
trust, as defined in the Internal Revenue Code.
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10.18 Ratings. At the time CRLP's senior unsecured Debt is rated by any rating
agency, and thereafter, at the time of supplying the annual financial statements
required by Section 6.13. hereof, Credit Parties shall submit to Lenders
evidence of CRLP's senior unsecured Debt then current rating by the applicable
rating agency. If such rating changes or such Debt is no longer rated by a
Qualified Rating Agency at any time, Credit Parties must notify Lenders within
two (2) Domestic Business Days of such change, and the Margin shall be
recalculated and shall be effective two (2) days after such change in ratings.
10.19 Registration of Stock of CLP. Credit Parties shall cause the stock of CLP
to be listed on the New York Stock Exchange, the American Stock Exchange, or the
National Association of Securities Dealers Automated Quotation System at all
times.
10.20 Key Officers. Credit Parties shall cause Xxxxxx X. Xxxxxx to remain as
chief executive officer or chairman of the board of directors of each of the
Credit Parties; provided, however, that his removal or resignation from either
or both such positions shall not constitute a breach of this covenant if such
removal or resignation results from his death or disability, or is for cause.
10.21 Environmental Laws.
(a) Credit Parties will comply, and cause all of their Affiliates to comply,
with all Applicable Environmental Laws. If any Credit Party shall (i) receive
notice that any violation of any Applicable Environmental Law may have been
committed or is about to be committed by such Person, (ii) receive notice that
any administrative or judicial complaint or order has been filed or is about to
be filed against any Credit Party alleging violations of any Applicable
Environmental Laws or requiring any Credit Party to take any action in
connection with the release of hazardous materials, or (iii) receive any notice
from a governmental authority or private party alleging that any Property is
adversely affected by a violation or potential violation of any Applicable
Environmental Laws or that any Credit Party may be liable or responsible for any
costs associated with a response to or cleanup of a release of a hazardous
material or any damages caused thereby, and such notices, individually or in the
aggregate, could have a material adverse effect on the operations or financial
condition of any Credit Party or any Property, such Credit Party shall provide
Agent with a copy of such notice within thirty (30) days after the receipt
thereof by such Credit Party. Within thirty (30) days after any Credit Party
learns of the enactment or promulgation of any new Applicable Environmental Law
which could have a material adverse effect on the operations or financial
condition of any Credit Party, such Credit Party shall provide Agent with notice
thereof. Each Credit Party shall promptly take all actions necessary to prevent
the imposition of any Liens on any of their respective Properties arising out of
or related to any Applicable Environmental Laws. If Credit Parties are notified
as set forth herein, or otherwise become aware, that any of the Properties are
in violation of Applicable Environmental Laws, Credit Parties shall, within 180
days of Credit Parties' receipt of such notice or actual knowledge of such
violation, deliver to Agent an estimate of the cost to remediate and/or
otherwise cure such violation, which estimate must be from a licensed
environmental firm or engineer acceptable to Agent. If the costs of such
remediation and/or cure exceed $500,000 for any single Property, such estimated
costs shall be subtracted from the Maximum Borrowing Base until such time as
Credit Parties have remediated and/or cured (and have provided evidence
satisfactory to Agent of such remediation and cure) such violation in accordance
with Applicable Environmental Laws. Credit Parties agree to remedy and/or cure
any such violation within the time periods permitted therefor by Applicable
Environmental Laws or any governmental authorities.
(b) Upon request by Agent, Borrower shall provide the latest copy of an ESA for
any Pool Property. If Agent reasonably believes, based upon objective evidence,
or has actual knowledge (pursuant to ss.10.21(a) or otherwise) that there has
been an adverse environmental change in any Pool Property, then upon Agent's
request Borrower shall provide a current ESA or other environmental
investigation and report reasonably acceptable to Agent for such Pool Property
prepared in accordance with Agent's current environmental requirements. If such
ESA or other environmental investigation and report reasonably acceptable to
Agent reveals a significant violation, as determined by Agent in its reasonable
discretion, of Applicable Environmental Laws which would materially and
adversely effect the operation of such Pool Property, as determined by Agent in
its reasonable discretion, or the costs of such remediation and/or cure exceed
$500,000 for such Property and if such violation has not previously been
disclosed to the Agent prior to becoming a Pool Property, then Agent may remove
an amount reasonably estimated to effect a remediation of such problem (the
"Remediation Costs") from the Maximum Borrowing Base provided that (i) such
problem is not covered by an environmental policy which will be adequate to pay
for such remediation, (ii) such problem is not one covered by a state or federal
trust fund which will be adequate to pay for such remediation or (iii) Borrower
does not remedy such condition within ninety (90) days from the date of receipt
of such notice from Agent of violation and intent to remove remediation costs
from the Maximum Borrowing Base. If the Remediation Costs are equal to or
greater than twenty-five percent (25%) of the GAV of such Property, then Agent,
may in its sole discretion remove such Property from the Pool. If a Property is
removed from the Pool, then Credit Parties may request such Property's
reinstatement into the Pool and such Property shall be reinstated if consented
to by the Required Lenders.
(c) An initial list of Pool Properties is attached hereto as Exhibit H. The
Credit Parties represent and warrant to Lenders that the Pool Properties meet
the requirements for inclusion in the Pool as set forth in the definition of
"Pool" in Article 1 of this Agreement. The Credit Parties may add other
Properties to the Pool during the Commitment Period by delivering a certificate
to the Agent (which such certificate must be acceptable to Agent), which
certificate must (1) contain a detailed description of the Property, (2) state
that such Property meets the requirements for inclusion in the Pool, (3) state
that Borrower has substantially complied with the requirements of the Due
Diligence Checklist attached hereto as Exhibit I, and (4) must be signed by the
President, Chief Executive Officer, or Chief Financial Officer of Borrower.
Borrower shall provide Agent a Phase I Environmental Site Assessment for each
Property added to the Pool, which assessment must be acceptable to Lenders.
Borrower shall also provide Agent, upon the request of any Lender, copies of any
of the due diligence items described in the Due Diligence Checklist, together
with any other information with respect to such Property as Agent or any Lender
may reasonably request. If such certificate is submitted at least thirty (30)
days after the end of any fiscal quarter, and such Property meets the
requirements for inclusion in the Pool as of the last day of such fiscal
quarter, as reasonably determined by Agent, such Property will be included in
the Pool for such fiscal quarter. If all or a Material Portion (as hereinafter
defined) of a Pool Property is destroyed by fire or other casualty, or shall be
damaged or taken by condemnation (which term shall include any damage or taking
by any governmental authority and any transfer by private sale in lieu thereof),
either temporarily or permanently, such Property shall be immediately removed
from the Pool. As used herein, "Material Portion" means twenty-five percent
(25%) or more of the leasable square footage of the Property or, for multifamily
Properties, twenty-five percent (25%) or more of the total units at the
Property. Properties may also be removed from the Pool at the written request of
Credit Parties provided that such removal will not result in a breach or
violation of any term, covenant, or condition contained in any of the Credit
Documents.
10.22 Newly formed Significant Subsidiaries of CLP as Guarantors. CLP agrees
that any newly formed wholly owned Significant Subsidiaries of CLP shall execute
an agreement guaranteeing the prompt payment of the Credit Party Obligations in
full when due and shall assume and agree to all conditions and terms set forth
in Article 7 hereof.
Article 11........NEGATIVE COVENANTS
Credit Parties agree and covenant that until the Loans and
Reimbursement Obligation have been paid in full and the Commitment Period has
expired, Credit Parties shall abide by and observe the following negative
covenants:
11.1 Debt. No Credit Party shall create, incur, assume or suffer to exist any
Debt (other than the Loans) or obligation for money borrowed, or guarantee, or
endorse, or otherwise be or become contingently liable in connection with the
obligations of any Person unless prior to any such transaction, and immediately
following such transaction, Credit Parties will be in compliance with all terms,
covenants, and conditions (including, without limitation, financial covenants)
of the Credit Documents.
11.2 Merger, Consolidation, Etc. Without unanimous consent received in writing
from all the Lenders, no Credit Party will enter into any merger, consolidation
or similar transaction unless (i) following such transaction, such Credit Party
will continue to be engaged solely in the business of ownership, development,
management, and investment in real estate, (ii) such Credit Party is the
surviving entity of such transaction, and (iii) immediately upon consummation of
such transaction Credit Parties provide notice of such transaction to Agent and
provide to Agent evidence satisfactory to Lenders that no Default or Event of
Default exists and Credit Parties are in compliance with all covenants,
including, without limitation, financial covenants, contained herein and in any
of the other Credit Documents.
11.3 Sale or Disposition of Substantially All Assets. Credit Parties will not
sell, assign, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) (i) all or substantially all of their assets (whether
now or hereafter acquired) or (ii) twenty-five percent (25%) of Borrower's GAV
in a twelve (12) month period unless consented to in writing by all of the
Lenders.
11.4 Other Disposition of Assets. Credit Parties will not sell, lease, transfer
or otherwise dispose of assets, unless any such disposition shall be in the
ordinary course of business for a full and fair consideration, which in no event
shall include a transfer for full or partial satisfaction of a pre-existing Debt
without prior written notice to Agent.
11.5 ERISA Funding and Termination. Credit Parties will not permit (a) the
funding requirements of ERISA with respect to any Employee Plan ever to be less
than the minimum required by ERISA or (b) any Employee Plan ever to be subject
to involuntary termination proceedings.
11.6 Transactions with Affiliates. Credit Parties will not, without the prior
written consent of Required Lenders, enter into any transaction (i) with an
Affiliate which is not a Guarantor of the Loans other than in the ordinary
course of Credit Parties' business and on fair and reasonable terms no less
favorable to Credit Parties than those that Credit Parties would obtain in a
comparable arms-length transaction with a Person not an Affiliate; and (ii) with
a Person for the purpose of development of real estate provided, however, that
such consent shall not be required unless the total value of the property or
services represented by transactions which are not in the ordinary course of
business and on fair and reasonable terms ("Prohibited Transactions"), when
added to the total value of all property or services represented by prior
Prohibited Transactions and consummated after the Closing Date, exceeds
$16,000,000 (however, excluded from such $16,000,000 cap is the EUPP Liability).
11.7 Distributions. CLP's and CRLP's annual distributions (based upon prior
twelve (12) months from date of calculation) to shareholders or partners, from
and after the date hereof, shall not exceed 95% of Funds From Operations through
the date of any such distribution. After an Event of Default, CLP and CRLP shall
not make any distributions or other payments to shareholders or partners in
excess of the minimum amounts required in order for CLP to maintain its status
as a real estate investment trust, as defined in the Internal Revenue Code.
After an Event of Default specified in Sections 12.1.(a), (b), (e) and (f), CLP
and CRLP shall not make any distributions or other payments to shareholders or
partners without the prior written consent of the Required Lenders.
11.8 Financial Covenants: The Credit Parties shall not at any time permit:
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(a) the ratio of EBITDA to Interest Expense to be less than 2.0 to 1.0;
(b) the ratio of EBITDA to Debt Service to be less than 1.75 to 1.0;
(c) the ratio of EBITDA to Fixed Charges to be less than 1.55 to 1.0.
(d) the ratio of Pool EBITDA to Unsecured Interest Expense to be less than
2.0 to 1.0;
(e) the ratio of Pool GAV to Unsecured Liabilities to be less than 1.70 to 1.0;
(f) the ratio of Total Liabilities to GAV to exceed fifty-five percent (55%);
(g) the ratio of Secured Liabilities to GAV to exceed thirty-five percent (35%);
(h) the ratio of total preferred stock of CLP to GAV to exceed twenty percent
(20%).
(i) the aggregate value of Construction in Process contributing to Pool GAV to
exceed ten percent (10%);
(j) the aggregate value of Non-Stabilized Properties contributing to Pool GAV to
exceed ten percent (10%);
(k) the ratio of aggregate value of Colonial Investments to GAV to exceed
fifteen percent (15%) ("Investments Covenant"); however, if the Borrower
receives a BBB/Baa2 rating from a Qualified Rating Agency, then the Investments
Covenant shall be increased to twenty percent (20%);
(l) the ratio of combined book value of land and Construction in Process to GAV
to exceed seventeen and one-half percent (17.5%); and
(m) the ratio of Permitted Investments to GAV to exceed twenty-five percent
(25%) of GAV.
11.9 Change in Business. Make any material change in the nature of the business
of the Credit Parties as carried on at the date hereof.
11.10 Changes in Accounting; Fiscal Year. Change the methods of accounting of
the Credit Parties unless such change is permitted by GAAP and provided such
change does not have the effect of curing or preventing what would otherwise be
an Event of Default had such change not taken place, or change the date of its
fiscal year end.
11.11 Loans or Advances. No Credit Party shall make loans or advances to any
person without the prior written consent of the Required Lenders except as
permitted herein and except:
(a) loans or advance to employees and directors not exceeding $16,000,000 in the
aggregate principal amount outstanding at any time (excluding the guarantees
issued pursuant to EUPP);
(b) deposits required by government agencies or public utilities;
(c) loans or advances from the Borrower to any Guarantor or from any Guarantor
to the Borrower or another Guarantor; and/or
(d) other loans and advances by any Credit Party to any Person which (x) are
evidenced by notes (and, if requested by the Agent, acting at the direction of
the Required Lenders, such notes, together with any related mortgage, shall be
delivered to and assigned and pledged to the Agent, and endorsed for payment for
the benefit of itself and the Lenders, as security for the payment of all Credit
Obligations) and (y) are subject to the limitations of Section 11.12(g) of this
Agreement.
11.12 Investments. No Credit Party shall make Investments after the Closing Date
in any Person except as permitted by Section 11.11 and except for the following
Investments:
(a) direct obligations of the United States Government maturing within one (1)
year;
(b) certificates of deposit issued by a commercial bank whose credit is
satisfactory to the Agent;
(c) depository accounts with a commercial bank whose credit is satisfactory to
Agent;
(d) commercial paper rated A1 or the equivalent thereof by S&P, or P1, or the
equivalent thereof by Xxxxx'x, and in either case maturing within six (6) months
after the date of acquisition;
(e) tender bonds the payment of the principal of and interest on which is fully
supported by a letter of credit issued by a United States bank whose long-term
certificates of deposit are rated at least AA or the equivalent thereof by S&P
and AA or the equivalent thereof by Xxxxx'x;
(f) Investments consisting of the acquisition of all or substantially all of the
assets or stock or another Person permitted by Section 11.2;
(g) other Colonial Investments by Credit Parties in an amount which together
with loans and advances permitted by clause (d) of Section 11.11, do not exceed
fifteen percent (15%) of GAV as of the end of the most recent Fiscal Quarter.
However, if the Borrower receives a BBB/Baa 2 rating from a Qualified Rating
Agency, then the foregoing percentage shall be increased from fifteen percent
(15%) to twenty percent (20%);
(h) Investments in real estate or other business ventures permitted for REITS
(whether directly in real estate or other business ventures or whether in a
Person that owns the real estate or other business ventures) made in the
ordinary course of Credit Parties' business.
11.13 Change in Management. The Borrower agrees that not more than three of the
five members of the Borrower's present management team (consisting of Xxxxxx X.
Xxxxxx as Chairman of the Board, President, and Chief Executive Officer; Xxxxxx
X. Xxxxxx, Xx. as Chief Financial Officer; X. Xxxxxxxx Xxxxxxxx, III as Chief
Operating Officer, Xxxx Xxxxxxx as Chief Administrative Officer, and Xxxxxxx
XxXxxxx as Executive Vice President of Mixed Use Development) shall change
unless such change is approved in writing by the Lenders in their discretion.
Article 12........EVENTS OF DEFAULT AND REMEDIES
12.1 Events of Default. The occurrence of any one or more of the following
events shall constitute an Event of Default hereunder:
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(a) Nonpayment of principal, interest, or any other sum payable under this
Agreement or the Notes, or nonpayment of the Reimbursement Obligation when and
as the same shall become due and payable, whether at their stated maturities, by
acceleration or otherwise (a "Monetary Default"), which nonpayment is not cured
within five (5) Domestic Business Days after written notice thereof from Agent
to Credit Parties; provided, however, that Agent shall not be required to give
written notice of such default more than four (4) times in any twelve (12) month
period, after which such nonpayment shall be an Event of Default unless cured
within five (5) days after the due date therefor.
(b) Violation or breach of any covenant set forth in Sections 10.14, 10.16 or
10.17 or in Article 11 hereof.
(c) Any representation or warranty made by or on behalf of any Credit Party,
under or in connection with this Agreement shall be materially false or
misleading as of the date on which made.
(d) Any Credit Party shall fail to perform or observe any term, covenant or
agreement (other than those specified in (a) and (b) above) contained in any
Credit Document to be performed or observed by such Credit Party, and such
failure shall remain unremedied for thirty (30) days after written notice
thereof shall have been given to Credit Parties by Agent; provided, however,
that if such failure cannot, with reasonable diligence, be fully cured within
such thirty (30) day period, the period for cure shall be extended for up to an
additional sixty (60) days, as long as (1) within the initial thirty (30) days,
Credit Parties commence the cure and provide Agent with written notice of such
commencement, and the steps being taken to cure and (2) Credit Parties proceed
to complete such cure with due diligence and as soon as practicable within the
additional sixty (60) day period (a "Non-Monetary Default").
(e) Any Credit Party shall be generally not paying its debts as they become due
or shall make a general assignment for the benefit of creditors; or any petition
shall be filed by or against any one or more of the Credit Parties under the
federal bankruptcy laws, or any other proceeding shall be instituted by or
against any Credit Party seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, reorganization, arrangement, adjustment or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, custodian or other similar official
for such Credit Party or any substantial part of its property (provided, that as
to any involuntary proceeding, such shall not constitute an Event of Default
unless the same is not dismissed or vacated within sixty (60) days of the date
of such filing); or any one or more of the Credit Parties shall take any action
to authorize or effect any of the transactions set forth above in this Section
12.1.(e).
(f) Acceleration prior to maturity of an aggregate of $20,000,000 or more of any
of the Debt or guarantees of any of the Debt of one or more of the Credit
Parties (excluding from such Debt limitation the EUPP Liability).
(g) Any Credit Party shall disavow, revoke or terminate any Credit Document to
which it is a party or shall otherwise challenge or contest in any action, suit
or proceeding in any court or before any governmental authority the validity or
enforceability of this Agreement or any other Credit Documents.
(h) A judgment or order for the payment of money (not fully covered by
insurance) shall be entered against any Credit Party by any court or other
tribunal which exceeds, individually or together with all other such judgments
or orders entered against Credit Parties, $10,000,000 in amount (or which shall
otherwise have a material adverse effect on such Person's operations or
financial condition), and such judgment or order shall continue for a period of
thirty (30) days without being stayed or dismissed through appropriate appellate
proceedings.
(i) (1) any Reportable Event with respect to an Employee Plan shall occur; (2)
any Employee Plan shall incur an "accumulated funding deficiency" (as defined in
Section 412 of the Internal Revenue Code or Section 302 of ERISA) for which a
waiver has not been obtained in accordance with the applicable provisions of the
Internal Revenue Code and ERISA; or (3) any Credit Party is in "default" (as
defined in Section 4219(c)(5) of ERISA) with respect to payments to a
Multiemployer Plan resulting from such Credit Party's complete or partial
withdrawal (as described in Section 4203 or 4205 of ERISA) from such
Multiemployer Plan.
(j) Any order, judgment or decree is entered against any Credit Party decreeing
the dissolution or split up of such Credit Party, and such order remains
undischarged or unstayed for a period in excess of thirty (30) days.
Notwithstanding anything else herein, all requirements of notice shall be deemed
eliminated if Agent is legally prevented from giving such notice by bankruptcy
or other applicable law. In such event, the cure period, if any, shall then run
from the occurrence of the event or condition of default rather than from the
date of notice.
12.2 Remedies. If any Event of Default occurs, Lenders may, at their
option, take any one or more of the following actions:
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(a) By written notice to Borrower, terminate the Commitment Period, and thereby
terminate their obligation to make further Advances or Swing Loan Advances or
issue Letters of Credit hereunder.
(b) Declare the entire unpaid principal of the Loans, together with the interest
accrued thereon, and the Reimbursement Obligation (including undrawn amounts
under any Letter of Credit) to be, and the same shall thereupon become,
immediately due and payable, without presentment, protest or further demand or
notice of any kind, all of which are hereby expressly waived.
(c) Proceed to protect and enforce their rights by action at law (including,
without limitation, bringing suit to reduce any claim to judgment), suit in
equity and other appropriate proceedings including, without limitation, for
specific performance of any covenant or condition contained in this Agreement or
the other Credit Documents.
(d) Exercise any and all rights and remedies afforded by the laws of the United
States, the State of Alabama or any other appropriate jurisdiction as may be
available for the collection of debts and enforcement of covenants and
conditions such as those contained in this Agreement and in the other Credit
Documents.
(e) Exercise the rights and remedies of setoff and/or banker's lien against the
interest of Credit Parties in and to every account and other property of any
Credit Party which is in the possession of any of the Lenders or any Person
which then owns a participating interest in the Loans, to the extent of the full
amount of the Loans, Reimbursement Obligations and other Credit Obligations.
Article 13........AGENCY PROVISIONS
13.1 Appointment. Each Lender hereby designates and appoints SouthTrust Bank, as
Agent of such Lender to act as specified herein and the other Credit Documents,
and each such Lender hereby authorizes the Agent, as the agent for such Lender,
to take such action on its behalf under the provisions of this Credit Agreement
and the other Credit Documents and to exercise such powers and perform such
duties as are expressly delegated by the terms hereof and of the other Credit
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere herein and in the other
Credit Documents, the Agent shall not have any duties or responsibilities,
except those expressly set forth herein and therein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Credit Agreement or any of the other Credit Documents, or shall otherwise exist
against the Agent. The provisions of this Section are solely for the benefit of
the Agent and the Lenders and none of the Credit Parties shall have any rights
as a third party beneficiary of the provisions hereof. In performing its
functions and duties under this Credit Agreement and the other Credit Documents,
the Agent shall act solely as an agent of the Lenders and does not assume and
shall not be deemed to have assumed any obligation or relationship of agency or
trust with or for any Credit Party. The Agent agrees that it shall administer
the Loans and the Credit Documents in a manner consistent with that ordinarily
employed by the Agent in the administration of similar loans for its own
account.
13.2 Delegation of Duties. The Agent may execute any of its duties hereunder or
under the other Credit Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by it with reasonable care.
13.3 Exculpatory Provisions. Neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (a)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection herewith or in connection with any of the other Credit
Documents (except for its or such Person's own gross negligence or willful
misconduct) or (b) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any of the Credit
Parties contained herein or in any of the other Credit Documents or in any
certificate, report, document, financial statement or other written or oral
statement referred to or provided for in, or received by the Agent under or in
connection herewith or in connection with the other Credit Documents, or
enforceability or sufficiency therefor of any of the other Credit Documents, or
for any failure of any Credit Party to perform its obligations hereunder or
thereunder. The Agent shall not be responsible to any Lender for the
effectiveness, genuineness, validity, enforceability, collectability or
sufficiency of this Credit Agreement, or any of the other Credit Documents or
for any representations, warranties, recitals or statements made herein or
therein or made by the Borrower or any Credit Party in any written or oral
statement or in any financial or other statements, instruments, reports,
certificates or any other documents in connection herewith or therewith
furnished or made by the Agent to the Lenders or by or on behalf of the Credit
Parties to the Agent or any Lender or be required to ascertain or inquire as to
the performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained herein or therein or as to the use of the
proceeds of the Loans or use of the Letters of Credit or of the existence or
possible existence of any Default or Event of Default or to inspect the
Properties, books or records of the Credit Parties. The Agent is not a trustee
for the Lenders and owes no fiduciary duty to the Lenders.
13.4 Reliance on Communications. The Agent shall be entitled to rely, and shall
be fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to any of the Credit Parties, independent
accountants and other experts selected by the Agent with reasonable care). The
Agent may deem and treat each Lender as the owner of its interests hereunder for
all purposes. The Agent shall be fully justified in failing or refusing to take
any action under this Credit Agreement or under any of the other Credit
Documents unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Agent shall act and refrain from acting, and in all cases be fully protected in
acting, or in refraining from acting, hereunder or under any of the other Credit
Documents in accordance with a request of the Required Lenders (or to the extent
specifically provided in Section 15.2 or Section 11.3, all the Lenders) and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders (including their successors and assigns).
13.5 Notice of Default; Default by Credit Parties. Lenders (including Agent as a
Lender) and Borrower shall give prompt written notice to Agent after receipt by
such party of actual knowledge of a Default or an Event of Default under the
Credit Documents. The Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default hereunder unless the Agent has
actual knowledge of such Default or Event of Default or has received notice from
a Lender or a Credit Party referring to the Credit Document, describing such
Default or Event of Default and stating that such notice is a "notice of
default." In the event that the Agent has actual knowledge of a Default or Event
of Default or receives such a notice, the Agent shall give prompt notice thereof
to the Lenders. Agent may, in its discretion, or shall upon direction of the
Required Lenders, give any notice pursuant to Article 12 that is necessary for
commencement of any cure period. Upon the occurrence of an Event of Default, the
Lenders shall consult with each other as to a course of action to pursue with
regard to such Event of Default. After the Lenders shall have consulted with one
another, Agent shall promptly propose a course of action (the "Initial
Proposal") to be taken by Lenders including but not limited to:
(a) declaring an Event of Default, sending appropriate notices, or accelerating
payment under the Notes or Reimbursement Obligation; or
(b) commencing collection proceedings against one or more of the Credit Parties;
or
(c) waiving such Event of Default.
The Initial Proposal shall be in writing and given to Lenders in the manner
specified for giving notice hereunder. After five (5) Domestic Business Days
from the Lenders' receipt of the Initial Proposal, Agent shall commence steps to
carry out the Initial Proposal, unless Agent shall have received written notice
from Required Lenders that the Initial Proposal has been rejected. If the
Initial Proposal is rejected by the Required Lenders, and an alternate proposal
is not agreed upon by the Required Lenders within forty-five (45) days of the
date of the Initial Proposal, Agent shall, and it is hereby authorized,
empowered, directed and instructed to take any action consistent with ordinary
and prudent commercial banking standards to collect the amounts due under the
Loans or Reimbursement Obligation, and to protect and preserve the respective
rights and interest of the Lenders as is authorized by any of the Credit
Documents. Lenders agree that any actions taken by Agent pursuant to this
paragraph shall be deemed a reasonable course of conduct, and the Lenders
hereby, approve, ratify and affirm such actions. Once a course of action has
been approved, as required herein, it may be withdrawn with approval of the
Required Lenders.
If the decision of the Required Lenders is to continue to make Advances
after and during the continuance of an Event of Default, any Lender may do so,
but nothing herein shall obligate any Lender to make Advances after and during
the continuance of an Event of Default, and any Lender's failure to do so shall
not result in such Lender becoming a Defaulting Lender.
13.6 Non-Reliance on Agent and Other Lenders. Each Lender expressly acknowledges
that neither the Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to it
other than as set forth in this Credit Agreement and that no act by the Agent or
any affiliate thereof hereinafter taken, including any review of the affairs of
any Credit Party, shall be deemed to constitute any representation or warranty
by the Agent to any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, assets, operations, property,
financial and other conditions, prospects and creditworthiness of the Credit
Parties and made its own decision to make its Loans hereunder and enter into
this Credit Agreement. Each Lender also represents that it will, independently
and without reliance upon the Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Credit Agreement, and to make such investigation as it deems
necessary to inform itself as to the business, assets, operations, property,
financial and other conditions, prospects and creditworthiness of the Credit
Parties. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, assets, property, financial or
other conditions, prospects or creditworthiness of the Credit Parties which may
come into the possession of the Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates; provided, however, that
Agent agrees to provide, upon written request of a Lender, any information
requested by such Lender if such information is in Agent's possession.
13.7 Indemnification. The Lenders agree to indemnify the Agent in its capacity
as such (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to their respective
Total Commitment Percentage from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including without limitation at any time following payment in full of the
Credit Party Obligations) be imposed on, incurred by or asserted against the
Agent in its capacity as such in any way relating to or arising out of this
Credit Agreement or the other Credit Documents or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Agent under or in connection with
any of the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
gross negligence or willful misconduct of the Agent. If any indemnity furnished
to the Agent for any purpose shall, in the opinion of the Agent, be insufficient
or become impaired, the Agent may call for additional indemnity and cease, or
not commence, to do the acts indemnified against until such additional indemnity
is furnished. The agreements in this Section shall survive the payment of the
Credit Party Obligations and all other amounts payable hereunder and under the
other Credit Documents.
13.8 Agent in Its Individual Capacity. The Agent and its affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Borrower or any other Credit Party as though the Agent were not the Agent
hereunder. With respect to the Loans made and Letters of Credit issued and all
obligations owing to it, the Agent shall have the same rights and powers under
this Credit Agreement as any Lender and may exercise the same as though it were
not the Agent, and the terms "Lender" and "Lenders" shall include the Agent in
its individual capacity.
13.9 Successor Agent. The Agent may, at any time, resign upon 20 days written
notice to the Lenders. Upon any such resignation, the Required Lenders shall
have the right to appoint a successor Agent. If no successor Agent shall have
been so appointed by the Required Lenders, and shall have accepted such
appointment, within 45 days after the notice of resignation, then the retiring
Agent shall select a successor Agent provided such successor is a Lender
hereunder or a commercial bank organized under the laws of the United States of
America or of any State thereof and has a combined capital and surplus of at
least $400,000,000. Upon the acceptance of any appointment as the Agent
hereunder by a successor, such successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations as the Agent, as appropriate, under this Credit Agreement and the
other Credit Documents and the provisions of this Article 13 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Agent under this Credit Agreement.
13.10 Reimbursement of Expenses. Each Lender agrees to reimburse the Agent
promptly upon demand for its ratable share (as determined by each Lender's Total
Commitment Percentage) of any out-of-pocket expenses (including counsel fees)
reasonably incurred by Agent in connection with the preparation, execution, or
enforcement of, or legal advice with respect to the rights or responsibilities
of the parties under, the Credit Documents, to the extent that the Agent is not
reimbursed for such expenses by the Credit Parties. Without limiting the
foregoing, each Lender shall bear its Total Commitment Percentage of all
reasonable out of pocket costs of collection incurred by Agent with respect to
the Loans or Reimbursement Obligation.
13.11 Resignation or Removal of Agent. Subject to the appointment and acceptance
of a successor Agent as provided in Section 13.9, the Agent may be removed by
the Required Lenders (excluding the Lender then serving as Agent) at any time
for willful misconduct or gross negligence. Upon any such removal, the Required
Lenders shall have the right to appoint a successor Agent in accordance with
Section 9. If no successor Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 45 days after the
Required Lenders' removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent as provided in Section 13.9.
Upon the acceptance of any appointment as the Agent hereunder by a successor,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations as the Agent, as
appropriate, under this Credit Agreement and the other Credit Documents and the
provisions of this Article 13 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was the Agent under this Credit Agreement.
Article 14........PARTICIPATIONS, ASSIGNMENTS, AND SETOFF
14.1 Participations.
(a) Lenders may not participate all or a portion of their respective Total
Commitments to any other Person without having first offered such participation
interest to Agent and the other Lenders in writing. Agent and the other Lenders
shall have a period of thirty (30) days from selling Lender's offer in which to
purchase such participation. Agent shall have the right of first refusal with
respect to such participation interest, but if Agent chooses not to purchase
such participation interest, selling Lender may participate such interest to one
or more of the Lenders as it may elect. In the event that neither Agent nor any
of the Lenders purchase such participation interest within said 30 day period,
selling Lender may then participate such interest to such Persons as selling
Lender may elect. The rights of first refusal provided in the foregoing
sentences shall not apply to a participation to an Affiliate of selling Lender.
Any such participation shall impose no additional obligations on Agent, it being
the responsibility of the selling Lender to furnish its participant any and all
information with regard to the Loans and Credit Documents. Borrower and Agent
shall continue to deal solely and directly with such selling Lender for purposes
of voting rights, and for all other purposes of the Credit Documents. If an
Event of Default shall have occurred and be continuing, the 30-day time period
specified above shall be reduced to 10 days.
(b) Borrower agrees that each participant shall be deemed to have the rights of
setoff provided in Section 14.4, and each participant, by exercising such
rights, agrees to share with the Lenders any amounts received pursuant to the
exercise of its rights of setoff, such amounts to be shared in accordance with
Section 14.4 as if such participant were a Lender.
14.2 Assignment.
(a) Lenders may not assign all or a portion of their respective Total
Commitments to any other Person without having first offered such interest
to Agent and the other Lenders in writing. Agent and the other Lenders
shall have a period of thirty (30) days from selling Lender's offer in
which to purchase such interest. Agent shall have the right of first
refusal with respect to such interest, but if Agent chooses not to purchase
such interest, selling Lender may assign such interest to one or more of
the Lenders as it may elect (subject to Section 6.13 of this Agreement). In
the event that neither Agent nor any of the Lenders purchase such interest
within said thirty (30) day period, selling Lender may then assign such
interest to any other commercial bank or financial institution reasonably
acceptable to Agent, and so long as no Event of Default has occurred and is
continuing, the Borrower, on the terms and conditions set forth in
subsection (b) below. The rights of first refusal provided in the foregoing
sentences shall not apply to an assignment to an Affiliate of selling
Lender. If an Event of Default shall have occurred and be continuing, the
30-day time period specified in above shall be reduced to 10 days.
(b) Any such assignment shall be substantially in the form of Exhibit K hereto
(the "Assignment Agreement"). If such assignment is to a Person other than
to the Agent or a Lender, such assignment must also be in a minimum amount
of $10,000,000 (and in increments of $1,000,000 above such amount). Agent
agrees to retain at least $46,000,000 of its Total Commitment at all times
that it is acting as Agent hereunder.
(c) Upon (i) delivery to Agent of an original executed Assignment Agreement,
and (ii) payment of a $3,500 fee to the Agent for processing such
assignment, such assignment shall become effective on the effective date
specified in the Assignment Agreement. No fee shall be due if the
assignment is to an Affiliate of selling Lender. On and after such
assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Credit Documents executed by Lenders and shall have
all the rights and obligations of a Lender under the Credit Documents, to
the same extent as if it were an original party hereto, and no further
consent or action by the Borrower, the Lenders, or the Agent shall be
required to release the selling Lender with respect to the portion of its
Total Commitment and Loans so assigned. Upon the consummation of any
assignment made in accordance with this Section, Borrower, selling Lender,
and Agent shall make appropriate arrangements so that a replacement note is
issued to selling Lender and any existing note is canceled and returned to
Borrower (if necessary), and Borrower, Purchaser, and Agent shall make
appropriate arrangements to see that a new note is issued to Purchaser, in
all cases, as needed to reflect their respective Total Commitments, as
adjusted for the assignment.
By executing and delivering an Assignment Agreement, the assigning Lender
thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim; (ii)
except as set forth in clause (i) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
this Credit Agreement, any of the other Credit Documents or any other
instrument or document furnished pursuant hereto or thereto, or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Credit Agreement, any of the other Credit Documents or any
other instrument or document furnished pursuant hereto or thereto or the
financial condition of any Credit Party or the performance or observance by
any Credit Party of any of its obligations under this Credit Agreement, any
of the other Credit Documents or any other instrument or document furnished
pursuant hereto or thereto; (iii) such assignee represents and warrants
that it is legally authorized to enter into such Assignment Agreement; (iv)
such assignee confirms that it has received a copy of this Credit
Agreement, the other Credit Documents and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into such Assignment Agreement; (v) such assignee
will independently and without reliance upon the Agent, such assigning
Lender or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Credit Agreement and
the other Credit Documents; (vi) such assignee appoints and authorizes the
Agent to take such action on its behalf and to exercise such powers under
this Credit Agreement or any other Credit Document as are delegated to the
Agent by the terms hereof or thereof, to exercise such powers under this
Credit Agreement or any other Credit Document as are delegated to the Agent
by the terms hereof or thereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all obligations which by the terms of this
Credit Agreement and the other Credit Documents are required to be
performed by it as a Lender.
(d) In addition to the assignments and participations permitted under the
Section 14.1 of this Agreement and this Section 14.2, and without the need
to comply with any of the formal or procedural requirements of the
foregoing Sections, any Lender may at any time and from time to time,
pledge and assign all or any portion of its rights under all or any of the
Credit Documents to a Federal Reserve Bank; provided that no such pledge of
assignment shall release such Lender from its obligation thereunder. To
facilitate any such pledge or assignment, Agent shall, at the request of
such Lender, enter into a letter agreement with the Federal Reserve Bank
in, or substantially in, the form of the exhibit to Appendix C to the
Federal Reserve Bank of New York Operating Circular No 10, as amended from
time to time. No such pledge or assignment shall release the assigning
Lender from its obligations hereunder.
The Agent hereby agrees that it shall notify each of the Lenders and
Borrower of any assignment hereunder, and further agrees to notify Borrower of
any offer it receives from a selling Lender.
14.3 Right to Purchase. Agent shall have the right, at its sole and exclusive
option, to purchase any Lender's Revolving Note evidencing such Lender's Total
Commitment (herein, the "Selling Lender") if any of the following shall occur:
(i) the Selling Lender consents to such purchase, (ii) Agent has requested the
Lenders' consent to any action described in 15.2., the Selling Lender has not
consented, and the consent of Selling Lender is required in order to obtain
unanimous consent, (iii) Agent has requested the Lenders' consent to any other
action, the Selling Lender has not consented, and the consent of Selling Lender
is required to obtain the consent of the Required Lenders (if more than one
Selling Lender has not consented then the Agent shall be required to purchase
all the non-consenting Selling Lender's Total Commitments), (iv) Selling Lender
fails to timely perform or observe any term, covenant or condition of this
Agreement (including, without limitation, the obligation to make Revolving
Advances of its Revolving Commitment Percentage of the Revolving Loan) or the
Credit Documents, or breaches any representation or warranty contained herein,
or (v) Selling Lender shall become insolvent, shall close for business or
liquidate, or a receiver shall be appointed for the Selling Lender. The purchase
price shall be equal to the outstanding principal balance of Selling Lender's
Revolving Note, plus Selling Lender's Revolving Commitment Percentage of (i)
accrued and unpaid interest at the rates set forth in such Note(s) through the
date of purchase, and (ii) fees and charges owing to Lenders under the Credit
Documents. Upon payment of such purchase price, Selling Lender shall endorse and
deliver its Note to Agent without recourse. Nothing under this Section shall be
construed as obligating Agent to purchase any Lender's Revolving Note, and
nothing hereunder shall be construed as granting any Lender the right to demand
that Agent purchase such Revolving Note.
The Agent hereby agrees that it shall notify each of the Lenders and
Borrower of any purchase hereunder.
14.4 Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if Borrower becomes insolvent, however evidenced,
or any Default or Event of Default occurs, any and all deposits (including all
account balances, whether provisional or final and whether or not collected or
available) may be offset and applied toward the payment of the Loans and other
Credit Obligations, whether or not then due. Lenders agree that any and all
deposits, monies and property of Credit Parties seized by any such Lender
through the exercise of rights of setoff or enforcement of banker's liens shall
be first applied to the Loans, the Reimbursement Obligation, and all other
Credit Party Obligations before application to any other indebtedness then owing
from any Credit Party to such Lender. Lenders further agree that if any Lender,
whether by setoff or otherwise, has received payment in respect of the Loans,
the Reimbursement Obligation, or any other obligation owing to such Lender under
this Credit Agreement in an amount greater than what would be due to it pursuant
to Section 6.5(e), such Lender shall promptly, upon demand, remit such amounts
to Agent and purchase a portion of the Loans held by the other Lenders so that
after such purchase each setoff shall have been applied as a payment as provided
in Section 6.5(e) and each Lender will hold its Total Commitment Percentage of
the Revolving Loan, Swing Loan and Reimbursement Obligation.
Article 15........GENERAL PROVISIONS
15.1 Notices. All notices and other communications provided for hereunder shall
be in writing and, if mailed by certified mail, return receipt requested, shall
be deemed to have been received on the date shown on the receipt and, if sent by
overnight courier, shall be deemed to have been received on the next Domestic
Business Day following dispatch. In addition, notices hereunder may be delivered
by hand, in which event such notice shall be deemed effective when delivered.
Notices may also be given by telecopy provided that notice is simultaneously
given in one of the other approved delivery methods; and provided further that
notice shall not be deemed to be received upon telecopy transmission, but will
only be deemed received as provided for the other approved method of delivery.
Notices shall be addressed as set forth on Schedule 15.1, or at such other
address as such party may specify by written notice to the other parties hereto.
15.2 Amendments, Waiver, and Consents. Neither this Credit Agreement nor any
other Credit Document, nor any terms hereof or thereof may be amended, changed,
waived, discharged or terminated unless such amendment, change, waiver,
discharge or termination is in writing and signed by the Required Lenders and
the then current Credit Parties; provided that no such amendment, change,
waiver, discharge or termination shall, without the consent of each Lender
affected thereby:
(a) make or consent to any change in the method of calculating the interest rate
payable on the Notes, any change in the interest rate accruing on the Notes, or
any change in the definitions of "Margin" or "Qualified Rating Agency";
(b) make or consent to any change in the form of the Notes or in the principal
amounts of the Notes (except for automatic reductions to principal as provided
for in Section 6.8);
(c) make or consent to any change in the amount of any fee or other compensation
payable to Lenders by Borrower under the Credit Documents;
(d) make or consent to any change in or extension of the Commitment Termination
Date (except as provided in Section 6.12(b)) or the maturity date of any payment
of principal of or interest on the Notes or the payment date of any fees or
other compensation payable to Lenders by Borrower under the Credit Documents
(except such extension as may result from a withdrawal of an acceleration by
Required Lenders);
(e) waive compliance with any financial covenants or amend any financial
covenants or any definition included in any of the financial covenants set forth
in Sections 11.7 and 11.8, or change the method for calculating compliance
therewith;
(f) waive a Monetary Default;
(g) reduce any percentage specified in, or otherwise modify, the definition of
Required Lenders except as permitted by Section 15.3;
(h) amend or modify the provisions of Section 2.1.(c) or of this Section 15.2.;
(i) amend or modify the provisions of Article 13 without Agent's consent;
(j) release any Credit Party from any of the Credit Party Obligations;
(k) amend or modify the provisions of Section 11.3 or waive a default
thereunder;
(l) an increase in the Total Commitment Amount greater than $400,000,000.
Except as expressly set forth above, whenever this Agreement or any of the
Credit Documents calls for the approval, acceptance, or satisfaction of
"Lenders", or words of similar import, it shall be deemed to require the
approval, acceptance, or satisfaction of Required Lenders.
15.3 Defaulting Lender. Each Lender understands and agrees that if such Lender
is a Defaulting Lender, then notwithstanding the provisions of Section 15.2. and
for so long as it is a Defaulting Lender, it shall not be entitled to vote on
any matter requiring the consent of the Required Lenders or to object to any
matter requiring the consent of all Lenders; provided, however, that all other
benefits and obligations under the Credit Documents shall apply to such
Defaulting Lender.
15.4 Consent of Lenders. Except as provided in Section 6.12, if the consent,
approval, disapproval or determination of Lenders is requested by Agent as to
any proposed action or inaction and notice of such request is sent to Lenders in
the manner specified therefor herein, such consent, approval or disapproval
shall be deemed given by any Lender from whom no objection or response thereto
is received by Agent within fifteen (15) Domestic Business Days of such Lender's
receipt of such notice (such notice must specifically state that the Lender's
failure to respond within fifteen (15) Domestic Business Days to such notice
shall be deemed to be Lender's consent, approval, or disapproval of such
proposed action or inaction set forth in such notice).
15.5 Other Loans by Lenders to Credit Parties. The Lenders agree that one or
more of them may now or hereafter have other loans to one or more of the Credit
Parties which are not subject to this Agreement. The Lenders agree that the
Lender(s) which may have such other loan(s) to the Credit Parties may collect
payments on such loan(s) and may secure such loan(s) (so long as such loan does
not itself expressly violate this Agreement). Further, the Lenders agree that
the Lender(s) which may have such other loan(s) to the Credit Parties shall have
no obligation to attempt to collect payments under the Loans or Reimbursement
Obligation in preference and priority over the collection and/or enforcement of
such other loan(s), except as otherwise expressly provided in this Agreement.
15.6 Time. All references contained herein and in the other Credit Documents to
time shall be to Central Time unless another time zone is specified.
15.7 No Control By Lenders. None of the covenants or other provisions contained
in this Agreement shall, or shall be deemed to, give Lenders or Agent the rights
or power to exercise control over the affairs and/or management of Credit
Parties, the power of Lenders and Agent being limited to the right to exercise
the remedies provided for herein.
15.8 No Waiver By Lenders, Etc. The acceptance by Lenders at any time and from
time to time of part payment on the Loans or Reimbursement Obligation shall not
be deemed to be a waiver of any Event of Default then existing. No waiver by
Lenders of any particular Event of Default shall be deemed to be a waiver of any
Event of Default other than said particular Event of Default. No delay or
omission by Lenders in exercising any right or remedy under the Credit Documents
or otherwise shall impair such right or remedy or be construed as a waiver
thereof or an acquiescence therein, nor shall any single or partial exercise of
any such right or remedy preclude other or further exercise thereof, or the
exercise of any other right or remedy under the Credit Documents or otherwise.
The rights and remedies of Lenders in this Agreement are cumulative and are in
addition to, and are not exclusive of, any rights or remedies provided by law.
The rights of Lenders under this Agreement against Credit Parties are not
conditional or contingent on any attempt by Lenders to exercise any of their
rights under the Credit Documents, or against Credit Parties or any other
Person.
15.9 Lenders' Expenses. Whether or not the principal of the Loans is advanced
hereunder or the transactions contemplated hereby are consummated, Credit
Parties will pay on demand all fees, costs and expenses in connection with the
preparation, execution, and delivery of the Credit Documents and the other
documents to be delivered under this Agreement, including, without limitation,
the fees, out-of-pocket expenses and other disbursements of the Lenders' counsel
and shall include fees, expenses and disbursements in appellate and bankruptcy
proceedings (notwithstanding anything to the contrary contained herein, as to
fees and expenses in connection with the preparation, execution and delivery of
the Credit Documents, the Credit Parties will only be responsible for their own
and Agent's attorneys' fees and expenses). Credit Parties shall pay on demand
all costs and expenses (including, without limitation, attorneys' fees,
accountants' fees and expenses), if any, of Lenders in connection with the
enforcement, collection, restructuring, refinancing and "work-out" (including
with respect to any waiver or amendment) of this Agreement and the Credit
Documents. Credit Parties will save Lenders harmless from and against any and
all claims, damages, actions, costs, expenses and liabilities with respect to or
resulting from any breach by Credit Parties of any of the covenants under this
Agreement or any misrepresentation or breach of warranty by Credit Parties under
this Agreement, or in connection with the performance by Agent of the provisions
of this Agreement to be performed by Credit Parties. All sums payable to Lenders
by Credit Parties under the provisions of this Section shall bear interest at
the Default Rate, which interest shall be payable by Credit Parties to Agent on
demand.
15.10 GAAP. All accounting and financial terms used herein, and compliance with
each covenant contained herein, which relates to financial matters, shall be
determined in accordance with GAAP, except to the extent that a deviation
therefrom is expressly stated herein.
15.11 Number and Gender. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender shall
include each other gender where appropriate.
15.12 Headings. The headings, captions and arrangements used in this Agreement
are, unless specified otherwise, for convenience only and shall not be deemed to
limit, amplify or modify the terms of this Agreement, nor affect the meaning
thereof.
15.13 Survival of Covenants, Etc. All covenants, agreements, representations and
warranties made herein shall survive the execution and delivery of this
Agreement and the other Credit Documents. All statements contained in any
certificate or other instrument delivered by or on behalf of Credit Parties
shall be deemed to constitute representations and warranties made by Credit
Parties.
15.14 Successors and Assigns. All covenants and agreements contained in this
Agreement shall bind and inure to the benefit of the respective successors and
assigns of the parties hereto, except that Credit Parties may not assign any
rights hereunder without the prior written consent of Lenders. Credit Parties
authorize Lenders to disclose to any purchaser or participant, or any
prospective purchaser or participant of an interest in the Loans, any financial
or other information pertaining to Credit Parties.
15.15 Severability of Provisions. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws during the
term hereof, such provision shall be fully severable, and this Agreement shall
be construed and enforced as if such illegal, invalid or unenforceable
provisions had never comprised a part hereof, and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance
therefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision there shall be added automatically as a part of this Agreement, a
provision as similar in terms to the illegal, invalid or unenforceable provision
as may be possible which is legal, valid and enforceable.
15.16 Entire Agreement, Counterparts. This Agreement and the other Credit
Documents embody the entire agreement and understanding between Credit Parties
and Lenders relating to the subject matter hereof. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which taken together shall constitute one and the same instrument.
15.17 Trustees Not Liable for Obligations of CLP. CLP is organized as a business
trust. Its trustees shall be deemed for purposes of this Agreement and the other
Credit Documents to serve in the same capacity as directors of a business
corporation and shall have no personal liability or obligation, by reason of
their serving as such trustees, for the obligations of CLP hereunder or
thereunder.
15.18 Certain Provisions. Article 13 and Sections 15.3. through 15.5. apply only
to Agent and Lenders, and Credit Parties are not parties thereto and shall
have no obligations thereunder.
15.19 EUPP Liability. The Borrower consummated with Bank One, NA ("Bank One") an
Executive Unit Purchase Program ("EUPP") dated December 17, 1999, and funded on
January 25, 2000, in the aggregate amount of $9,864,423 (the "Initial Book
Value") providing financing to certain executives and Trustees of the Board of
Directors of the Borrower who qualify to purchase redeemable Operating Purchase
Units ("OP Units") of the Borrower pursuant to the EUPP. The Borrower and the
CLP shall guaranty financing made by Bank One and secure their guarantee by
having actual possession of such OP Units until such financing from Bank One are
repaid in full. Since the guarantees of the Borrower and CLP are fully secured
by the OP Units, the contingent liability of the Borrower and CLP for such
guarantees shall be limited to fifty percent (50%) of the Initial Book Value of
the OP Units ("EUPP Liability"). However, if the fair market value of the OP
Units at any time is less than or equal to fifty (50%) of the Initial Book Value
of the OP Units, then the EUPP Liability for such guarantees shall be increased
to one hundred percent (100%) of the Initial Book Value of the OP Units.
15.20 Termination of Prior Credit Agreement. As of the date hereof the Credit
Agreement dated April 14, 2000 (the "Prior Agreement") between Borrower,
Guarantor, Agent and other lenders listed therein is hereby terminated and the
lenders in such Prior Agreement shall have no further obligation to fund any
additional advances to the Credit Parties under such Prior Agreement. Loans
under the Prior Agreement shall be repaid in full pursuant to advances from this
Agreement without prepayment or fee.
15.21 Controlling Law; Consent to Venue. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ALABAMA. THE PARTIES
HERETO ACKNOWLEDGE THAT THIS AGREEMENT IS BEING HELD IN THE STATE OF ALABAMA AND
THAT THE PARTIES HERETO HAVE SUFFICIENT MINIMUM CONTACTS WITH THE STATE OF
ALABAMA FOR PURPOSES OF CONFERRING JURISDICTION ON THE FEDERAL AND STATE COURTS
PRESIDING IN JEFFERSON COUNTY, ALABAMA, AND THE PARTIES HERETO CONSENT TO THE
JURISDICTION OF SUCH FEDERAL AND STATE COURTS IN ANY ACTION INVOLVING THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HERETO PURSUANT TO THIS AGREEMENT. EACH OF THE
PARTIES HERETO CONSENTS TO THE SERVICE OF PROCESS RELATING TO ANY SUCH ACTION OR
PROCEEDING BY MAIL TO ITS ADDRESS SET FORTH IN THIS AGREEMENT.
15.22 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, CREDIT
PARTIES HEREBY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO TRIAL BY JURY ON ANY
CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION (I) ARISING OUT
OF OR IN ANY WAY PERTAINING OR RELATING TO THE CREDIT DOCUMENTS, OR (II) IN ANY
WAY CONNECTED WITH OR PERTAINING OR RELATED TO OR INCIDENTAL TO ANY DEALINGS OF
THE PARTIES HERETO WITH RESPECT TO THE CREDIT DOCUMENTS OR IN CONNECTION WITH
THE TRANSACTIONS RELATED THERETO OR CONTEMPLATED THEREBY OR THE EXERCISE OF ANY
PARTY'S RIGHTS AND REMEDIES THEREUNDER, IN ALL OF THE FOREGOING CASES WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE. CREDIT PARTIES AGREE THAT LENDERS MAY FILE A COPY OF THIS WAIVER WITH
ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED AGREEMENT
OF CREDIT PARTIES IRREVOCABLY TO WAIVE THEIR RIGHT TO TRIAL BY JURY, AND THAT,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE OR CONTROVERSY WHATSOEVER
BETWEEN CREDIT PARTIES AND LENDERS SHALL INSTEAD BE TRIED IN A COURT OF
COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
[the remainder of this page intentionally left blank]
IN WITNESS WHEREOF, Credit Parties and Lenders have caused this
Agreement to be duly executed as of the day and year first above written.
BORROWER:
COLONIAL REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
BY: COLONIAL PROPERTIES TRUST,
an Alabama trust
Its General Partner
BY: /s/ Xxxxxx X. Xxxxxx, Xx.
Xxxxxx X. Xxxxxx, Xx.
Its Chief Financial Officer
(Signatures Continue)
Signature Page to Colonial Realty
Limited Partnership Credit Agreement
GUARANTOR:
COLONIAL PROPERTIES TRUST,
an Alabama trust
BY: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------
Xxxxxx X. Xxxxxx, Xx.
Its Chief Financial Officer
(Signatures Continue)
Signature Page to Colonial Realty
Limited Partnership Credit Agreement
LENDERS:
SOUTHTRUST BANK,
an Alabama banking corporation
By: /s/ Xxxxxx Xxxxx
-----------------------------
Print Name: Xxxxxx Xxxxx
--------------------
Its: Assistant Vice President
(Signatures Continue)
Signature Page to Colonial Realty
Limited Partnership Credit Agreement
AMSOUTH BANK,
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Print Name: Xxxxxx X. Xxxxxxx
-----------------------
Its: Vice President
------------------------------
(Signatures Continue)
Signature Page to Colonial Realty
Limited Partnership Credit Agreement
XXXXX FARGO BANK, NATIONAL ASSOCIATION
a national banking association
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
---------------------------------
Print Name: Xxxxxxx X. Xxxxxx, Xx.
------------------------
Its: Vice President
-------------------------------
(Signatures Continue)
Signature Page to Colonial Realty
Limited Partnership Credit Agreement
WACHOVIA BANK, NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Print Name: Xxxxx Xxxxxxxx
----------------------
Its: Vice President
-----------------------------
(Signatures Continue)
Signature Page to Colonial Realty
Limited Partnership Credit Agreement
PNC BANK, NATIONAL ASSOCIATION
a national banking association
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
Print Name: Xxxxx Xxxxxxxxx
Its: Senior Vice President
-----------------------------
(Signatures Continue)
Signature Page to Colonial Realty
Limited Partnership Credit Agreement
CHEVY CHASE BANK, F.S.B.,
a federal savings bank
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------
Print Name: Xxxxxxxxx X. Xxxxxxx
----------------------
Its: Vice President
-----------------------------
(Signatures Continued)
Signature Page to Colonial Realty
Limited Partnership Credit Agreement
COMERICA BANK
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Print Name: Xxxxxxx X. Xxxxx
----------------------
Its: Account Officer
-----------------------------
(Signatures Continued)
Signature Page to Colonial Realty
Limited Partnership Credit Agreement
U.S. BANK NATIONAL ASSOCIATION a
national banking association
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Print Name: Xxxxxxx X. Xxxxx
----------------------
Its: Senior Vice President
-----------------------------
(Signatures Continued)
Signature Page to Colonial Realty
Limited Partnership Credit Agreement
COMPASS BANK,
an Alabama banking corporation
By: /s/ Xxxxxxx X. Xxxx Xxxxx
--------------------------------
Print Name: Xxxxxxx X. Xxxx Xxxxx
-----------------------
Its: Senior Vice President
------------------------------
(Signatures Continued)
Signature Page to Colonial Realty
Limited Partnership Credit Agreement
BRANCH BANKING & TRUST COMPANY
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
--------------------------------
Print Name:Xxxxxxxxxxx X. Xxxxxxxxx
-------------------------
Its: Vice President
------------------------------
(Signatures Continued)
Signature Page to Colonial Realty
Limited Partnership Credit Agreement
AGENT:
SOUTHTRUST BANK,
an Alabama banking corporation
By: /s/ Xxxxxx Xxxxx
-------------------------------
Print Name: Xxxxxx Xxxxx
----------------------
Its: Assistant Vice President
