1
EXHIBIT 99.1
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
AMENDED AND RESTATED LOAN AGREEMENT
AMONG
IRT PROPERTY COMPANY,
AS BORROWER,
NATIONSBANK, N.A.,
AMSOUTH BANK AND
FIRST UNION NATIONAL BANK,
AS BANKS,
NATIONSBANK, N.A.,
AS THE SWING LINE LENDER,
NATIONSBANK, N.A.,
AS ADMINISTRATIVE AGENT FOR THE BANKS
AND
NATIONSBANC XXXXXXXXXX SECURITIES LLC,
AS LEAD ARRANGER
AS OF SEPTEMBER 9, 1998
$100,000,000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
2
TABLE OF CONTENTS
Page No.
ARTICLE 1 - DEFINITIONS...........................................................................................2
ARTICLE 2 - LOANS................................................................................................18
Section 2.1 The Loans..................................................................................18
Section 2.2 Manner of Borrowing and Disbursement.......................................................18
Section 2.3 Interest...................................................................................21
Section 2.4 Fees and Commissions.......................................................................22
Section 2.5 Reduction of Commitment....................................................................23
Section 2.6 Prepayment.................................................................................23
Section 2.7 Repayment..................................................................................24
Section 2.8 Notes; Loan Accounts.......................................................................24
Section 2.9 Manner of Payment..........................................................................25
Section 2.10 Application of Payments....................................................................26
Section 2.11 Reimbursement..............................................................................27
Section 2.12 Capital Adequacy...........................................................................27
Section 2.13 Bank Tax Forms.............................................................................28
Section 2.14 Extension of the Maturity Date.............................................................28
Section 2.15 Swing Line Loans...........................................................................29
ARTICLE 3 - CONDITIONS PRECEDENT.................................................................................31
Section 3.1 Conditions Precedent to Effectiveness......................................................31
Section 3.2 Conditions Precedent to Each Advance.......................................................32
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES.......................................................................33
Section 4.1 Representations and Warranties.............................................................33
Section 4.2 Survival of Representations and Warranties, etc............................................40
ARTICLE 5 - GENERAL COVENANTS....................................................................................41
Section 5.1 Preservation of Existence and Similar Matters..............................................41
Section 5.2 Business: Compliance with Applicable Law...................................................41
Section 5.3 Maintenance of Properties..................................................................41
Section 5.4 Accounting Methods and Financial Records...................................................42
Section 5.5 Insurance..................................................................................42
Section 5.6 Payment of Taxes and Claims................................................................43
Section 5.7 Visits and Inspections.....................................................................43
Section 5.8 Payment of Indebtedness; Loans.............................................................43
Section 5.9 Use of Proceeds............................................................................43
Section 5.10 ERISA......................................................................................44
3
Section 5.11 Indemnity..................................................................................44
Section 5.12 Payment of Wages...........................................................................44
Section 5.13 Accuracy and Completeness of Information...................................................44
Section 5.14 Compliance with Environmental Laws.........................................................44
Section 5.15 Indemnity in Regard to Environmental Matters...............................................45
Section 5.16 Further Assurances.........................................................................46
Section 5.17 Broker's Claims............................................................................46
Section 5.18 Covenants Regarding Formation of Subsidiaries and Acquisitions.............................46
Section 5.19 Year 2000 Compliance.......................................................................47
ARTICLE 6 - INFORMATION COVENANTS................................................................................47
Section 6.1 Quarterly Operations Statements............................................................47
Section 6.2 Quarterly Consolidated Financial Statements and Information................................47
Section 6.3 Annual Consolidated Financial Statements and Information;
Certificate of No Default..................................................................48
Section 6.4 Performance Certificates...................................................................48
Section 6.5 Copies of Other Reports....................................................................49
Section 6.6 Notice of Litigation and Other Matters.....................................................49
Section 6.7 Matters Affecting the Negative Pledge Property.............................................50
Section 6.8 Notices from the Borrower Regarding Environmental Matters..................................51
ARTICLE 7 - NEGATIVE COVENANTS...................................................................................51
Section 7.1 Indebtedness of the Borrower...............................................................51
Section 7.2 Limitation on Liens........................................................................52
Section 7.3 Amendment and Waiver.......................................................................52
Section 7.4 Liquidation; Disposition or Acquisition of Assets..........................................52
Section 7.5 Limitation on Guaranties...................................................................53
Section 7.6 Dividends..................................................................................53
Section 7.7 Borrower Net Worth.........................................................................53
Section 7.8 Indebtedness Ratio.........................................................................53
Section 7.9 Interest Coverage..........................................................................54
Section 7.10 Collateral Value...........................................................................54
Section 7.11 Total Liabilities to Total Assets Ratio....................................................54
Section 7.12 Net Income.................................................................................54
Section 7.13 Debt Service Coverage Ratio................................................................54
Section 7.14 Value of Unencumbered Real Estate Assets...................................................54
Section 7.15 Affiliate Transactions.....................................................................54
-ii-
4
Section 7.16 ERISA Liabilities..........................................................................54
Section 7.17 Business of the Borrower...................................................................54
Section 7.18 Total Secured Liabilities to Total Assets..................................................55
Section 7.19 Limitation on Nonconforming Investments....................................................55
ARTICLE 8 - DEFAULT..............................................................................................56
Section 8.1 Events of Default..........................................................................56
Section 8.2 Remedies...................................................................................59
ARTICLE 9 - THE ADMINISTRATIVE AGENT.............................................................................60
Section 9.1 Appointment and Authorization..............................................................60
Section 9.2 Delegation of Duties.......................................................................60
Section 9.3 Interest Holders...........................................................................60
Section 9.4 Consultation with Counsel..................................................................60
Section 9.5 Documents..................................................................................60
Section 9.6 Administrative Agent and Affiliates........................................................61
Section 9.7 Responsibility of the Administrative Agent.................................................61
Section 9.8 Action by Administrative Agent.............................................................61
Section 9.9 Notice of Default or Event of Default......................................................62
Section 9.10 Responsibility Disclaimed..................................................................62
Section 9.11 Indemnification............................................................................63
Section 9.12 Credit Decision............................................................................63
Section 9.13 Successor Administrative Agent.............................................................63
ARTICLE 10 - CHANGE IN CIRCUMSTANCES AFFECTING LIBOR ADVANCES....................................................64
Section 10.1 LIBOR Basis Determination Inadequate or Unfair.............................................64
Section 10.2 Illegality.................................................................................64
Section 10.3 Increased Costs............................................................................65
Section 10.4 Effect On Other Advances...................................................................66
Section 10.5 Claims for Increased Costs and Taxes.......................................................66
ARTICLE 11 - MISCELLANEOUS.......................................................................................67
Section 11.1 Notices....................................................................................67
Section 11.2 Expenses...................................................................................69
Section 11.3 Waivers....................................................................................69
Section 11.4 Set-Off....................................................................................70
Section 11.5 Assignment.................................................................................71
Section 11.6 Counterparts...............................................................................73
-iii-
5
Section 11.7 Governing Law.........................................................................73
Section 11.8 Severability..........................................................................73
Section 11.9 Headings..............................................................................74
Section 11.10 Interest..............................................................................74
Section 11.11 Entire Agreement......................................................................74
Section 11.12 Amendment and Waiver..................................................................74
Section 11.13 Other Relationships...................................................................75
Section 11.14 Bank Wiring Instructions..............................................................75
Section 11.15 Confidentiality.......................................................................75
ARTICLE 12 - WAIVER OF JURY TRIAL..............................................................................76
Section 12.1 Waiver of Jury Trial..................................................................76
-iv-
6
EXHIBITS AND SCHEDULES
Exhibit A - Form of Note
Exhibit B-1 - Form of Request for Advance
Exhibit B-2 - Form of Request for Swing Line Advance
Exhibit C - Form of Subsidiary Guarantee
Exhibit D - Form of Swing Line Note
Exhibit E - Form of Opinion of Borrower's Counsel
Exhibit F - Form of Borrower's Loan Certificate
Exhibit G - Form of Subsidiary's Loan Certificate
Schedule 1 - Negative Pledge Property
Schedule 2 - Liens of Record
Schedule 3 - Environmental Matters
Schedule 4 - Indebtedness
Schedule 5 - Income Producing Properties
-v-
7
AMENDED AND RESTATED LOAN AGREEMENT
IRT PROPERTY COMPANY,
as Borrower,
NATIONSBANK, N.A,
AMSOUTH BANK and
FIRST UNION NATIONAL BANK,
as Banks,
NATIONSBANK, N.A.,
as the Swing Line Lender,
and
NATIONSBANK, N.A.,
as Administrative Agent for the Banks,
agree as follows as of the 9th day of September, 1998
WHEREAS, the Borrower, the Banks, the Swing Line Lender and the
Administrative Agent are all parties to that certain Loan Agreement dated as of
December 15, 1995 (the "Prior Loan Agreement"); and
WHEREAS, the Administrative Agent, the Swing Line Lender, the Banks and
the Borrower have agreed to amend and restate the Prior Loan Agreement in its
entirety as set forth herein; and
WHEREAS, the Borrower acknowledges and agrees that the security
interest granted to the Administrative Agent, for itself and on behalf of the
Swing Line Lender and the Banks, pursuant to the Prior Loan Agreement and the
Loan Documents (as defined in the Prior Loan Agreement) executed in connection
therewith shall remain outstanding and in full force and effect in accordance
with the Prior Loan Agreement and shall continue to secure the Obligations (as
defined therein); and
WHEREAS, the Borrower acknowledges and agrees that (i) the Obligations
(as defined herein) represent, among other things, the amendment and
restatement, renewal, extension, consolidation and modification of the
Obligations (as defined in the Prior Loan Agreement) arising in connection with
the Prior Loan Agreement and the other Loan Documents (as defined in the Prior
Loan Agreement) executed in connection therewith; (ii) the parties hereto intend
that the Prior Loan Agreement and the other Loan Documents (as defined in the
Prior Loan Agreement) executed in connection therewith and the collateral
pledged thereunder shall secure, without interruption or impairment of any kind,
all existing
8
Indebtedness under the Prior Loan Agreement and the other Loan Documents (as
defined in the Prior Loan Agreement) executed in connection therewith as so
amended, restated, restructured, renewed, extended, consolidated and modified
hereunder, together with all other Obligations hereunder; and (iii) all Liens
evidenced in connection with the Prior Loan Agreement and the other Loan
Documents (as defined in the Prior Loan Agreement) executed in connection
therewith are hereby ratified, confirmed and continued; and
WHEREAS, the parties hereto intend that the provision of the Prior Loan
Agreement, to the extent restructured, restated, renewed, extended,
consolidated, amended and modified hereby, are hereby superseded and replaced by
the provisions hereof;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, the
parties hereby amend and restate the Prior Loan Agreement as follows:
ARTICLE 1 - Definitions.
For the purposes of this Agreement:
"Administrative Agent" shall mean NationsBank, N.A. (or any successor
Administrative Agent appointed in accordance with this Agreement), acting as
administrative agent for the Banks and the Swing Line Lender.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at the address set forth in Section 11.1 hereof, or
such other office as may be designated pursuant to the provisions of Section
11.1 hereof.
"Advance" or "Advances" shall mean amounts advanced by the Banks to the
Borrower pursuant to Article 2 hereof on the occasion of any borrowing.
"Affiliate" shall mean any Person directly or indirectly controlling,
controlled by, or under common control with the Borrower excluding, however,
directors, officers or employees of the Borrower.
"Agreement" shall mean this Loan Agreement.
"Agreement Date" shall mean September 9, 1998.
"Applicable Law" shall mean, in respect of any Person, all provisions
of constitutions, statutes, rules, regulations, and orders of governmental
bodies or regulatory agencies
-2-
9
applicable to such Person, including, without limitation, all orders and decrees
of all courts and arbitrators in proceedings or actions to which the Person in
question is a party or by which it is bound.
"Applicable Margin" shall mean, in the case of the LIBOR Basis, as of
any calculation date, the Applicable Margin set forth below opposite the rating
then assigned by S&P and Xxxxx'x to the senior unsecured long-term debt
obligations of the Borrower set forth below (changes in the Applicable Margin
shall be effective on the date any such rating changes):
Ratings Assigned by S&P and Xxxxx'x Applicable Margin
(i) A- or greater 0.95%
(ii) BBB+/Baa1 1.05%
(iii) BBB/Baa2 1.15%
(iv) BBB-/Baa3 1.25%
(v) less than BBB-/Baa3 1.40%
provided, however, that on any calculation date that the ratings assigned fall
in more than one level, the higher Applicable Margin shall apply.
"Authorized Signatory" shall mean, with respect to any Person, such
senior personnel of such Person as may be duly authorized and designated in
writing by the Person to execute documents, agreements, and instruments on
behalf of the Person. The Authorized Signatories of the Borrower as of the
Agreement Date are as set forth in the Borrower's Loan Certificate delivered
pursuant to Section 3.1 hereof.
"Availability Restriction" shall mean, as of any particular time, the
product of (a) the Value of Negative Pledge Property and (b) sixty-five percent
(65%).
"Available Commitment" shall mean, as of any particular time, (a) the
lesser of (i) the Commitment and (ii) the Availability Restriction minus (b) the
sum of (i) the Loans then outstanding and (ii) the Swing Line Loans then
outstanding; provided, however, that the Available Commitment may not at any
time exceed the Availability Restriction.
"Available Swing Line Commitment" shall mean, as of any particular
time, the lesser of (i) the Swing Line Commitment minus Swing Line Advances then
outstanding, (ii) (A) the Lender's Available Commitment of the Swing Line Lender
minus (B) the sum of the Bank Loans Outstanding of the Swing Line Lender and the
aggregate principal amount of all
-3-
10
Swing Line Loans then outstanding, (iii) the Availability Restriction and (iv)
the Available Commitment.
"Bank Loans Outstanding" shall mean, as of any particular time, with
respect to any Bank hereunder, the aggregate amount of the Loans (exclusive of
Swing Line Loans) then outstanding made by such Bank to the Borrower.
"Banks" shall mean those banks whose names are set forth on the
signature pages hereof under the heading "Banks" and any assignees of the Banks
which hereafter become parties hereto pursuant to and in accordance with Section
11.5 hereof; and "Bank" shall mean any one of the foregoing Banks.
"Borrower" shall mean IRT Property Company, a Georgia corporation.
"Business Day" shall mean a day on which banks are not authorized or
required to be closed and foreign exchange markets are open for the transaction
of business required for this Agreement in Atlanta, Georgia and London, England,
as relevant to the determination to be made or the action to be taken.
"Capital Expenditures" shall mean expenditures for the purchase or
improvement of assets of long-term use which are capitalized in accordance with
GAAP.
"Capitalized Lease Obligation" shall mean that portion of any
obligation of a specified Person as lessee under a lease which at the time would
be required to be capitalized on the balance sheet of such lessee in accordance
with GAAP.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time (42 U.S.C. xx.xx. 9601,
et seq.).
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment" shall mean the several obligations of the Banks to advance
funds in the aggregate sum of up to $100,000,000 to the Borrower pursuant to the
terms hereof, as such obligations may be reduced from time to time pursuant to
the terms hereof.
"Commitment Ratios" shall mean the percentages as of the date of
determination in which the Banks are severally bound to satisfy the Commitment
to make Advances to the Borrower pursuant to the terms hereof, which as of the
Agreement Date are as set forth below:
-4-
11
Percentage
(Rounded to the Dollar
Bank nearest 1/10%) Commitment
NationsBank, N.A. 35% $35,000,000
AmSouth Bank 25% $25,000,000
First Union National Bank 40% $40,000,000
TOTAL: 100% $100,000,000
"Consolidated Entity" shall mean any Person whose accounts are
consolidated with those of the Borrower in accordance with GAAP.
"Debt Service" shall mean with respect to any period the debt service
on the Commitment calculated using an implied rate equal to the 7-year Treasury
constant maturity rate plus 1.75%, with a 25-year amortization period.
"Debt Service Coverage Ratio" shall mean, as of any calculation date,
the ratio of the NOI for all Negative Pledge Properties for the twelve calendar
month period preceding the calculation date to Debt Service for the twelve
calendar month period preceding the calculation date.
"Default" shall mean any event, act or condition specified in Section
8.1 hereof which with any passage of time or giving of notice (or both) would
constitute such event an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to the
sum of (a) the otherwise applicable rate of interest plus (b) two percent (2%).
"EBITDA" shall mean the amount equal to the net earnings of the
Borrower in a single fiscal year plus the sum for such year of (1) all federal
and state income taxes payable by the Borrower plus (2) the total depreciation
and amortization actually taken on the books and records of the Borrower with
respect to all the tangible assets of the Borrower, and plus (3) all Interest on
Indebtedness for Money Borrowed.
"Environmental Laws" means all present and future federal, state and
local laws, including the applicable rules and regulations promulgated
thereunder, all judicial interpretations thereof, all judgments, decrees, order
concessions, grants, franchises, agreements, and other governmental restrictions
and rules of common law relating to the
-5-
12
environment or to health or safety risks arising therefrom, including, without
limitation, CERCLA, the Resource Conservation and Recovery Act of 1976 (42
U.S.C. ss. 6901 et seq.), the Hazardous Materials Transportation Act (49 U.S.C.
ss. 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. ss. 1251
et seq.), the Clean Air Act (42 U.S.C. ss. 7401 et seq.), the Toxic Substances
Control Act (15 U.S.C. ss. 2601 et seq.), the National Environmental Policy Act
(42 U.S.C. ss. 4321 et seq.) and the Safe Drinking Water Act (42 U.S.C. ss.
300f-ss. 300j), as they may be amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as in effect on the Agreement Date and as such Act may be amended thereafter
from time to time.
"ERISA Affiliate" shall mean (a) any corporation which is a member of
the same controlled group of corporations (within the meaning of Code Section
414(b)) as is the Borrower, (b) any other trade or business (whether or not
incorporated) under common control (within the meaning of Code Section 414(c))
with the Borrower, (c) any other corporation, partnership or other organization
which is a member of an affiliated service group (within the meaning of Code
Section 414(m)) with the Borrower, or (d) any other entity required to be
aggregated with the Borrower pursuant to regulations under Code Section 414(o).
"Event of Default" shall mean any of the events specified in Section
8.1 hereof, provided that any requirement for notice or lapse of time, or both,
has been satisfied.
"Funds From Operations" shall mean net cash flow from operating
activities (as determined by GAAP) before changes in accrued assets and
liabilities (and shall not include a deduction for preferred stock dividends).
"GAAP" shall mean, as in effect from time to time, generally accepted
accounting principles consistently applied.
"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guaranty" or "Guaranteed," as applied to an obligation (each a
"primary obligation"), shall mean and include (a) any guaranty, direct or
indirect, in any manner, of any part or all of such primary obligation, and (b)
any agreement, direct or indirect, contingent or otherwise, the practical effect
of which is to assure in any way the payment or performance (or payment of
damages in the event of non-performance) of any part or all of such primary
obligation, including, without limiting the foregoing, any reimbursement
-6-
13
obligations as to amounts drawn down by beneficiaries of outstanding letters of
credit, and any obligation of such Person (the "primary obligor"), whether or
not contingent, (i) to purchase any such primary obligation or any property or
asset constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of such primary obligation or (2)
to maintain working capital, equity capital or the net worth, cash flow,
solvency or other balance sheet or income statement condition of any other
Person, (iii) to purchase property, assets, securities or services primarily for
the purpose of assuring the owner or holder of any primary obligation of the
ability of the primary obligor with respect to such primary obligation to make
payment thereof or (iv) otherwise to assure or hold harmless the owner or holder
of such primary obligation against loss in respect thereof.
"Hazardous Materials" means any and all hazardous or toxic substances,
pollutants, contaminants, petroleum and gas products, including (without
limitation) solid, semi-solid, liquid or gaseous substances which are toxic,
ignitable, corrosive, carcinogenic or otherwise dangerous to human, plant or
animal health and well-being, including (without limitation) crude oil or any
fraction thereof, natural gas, natural gas liquids, liquified natural gas or
synthetic gas usable for fuel, and including (without limitation) materials
defined as hazardous wastes or substances under any of the Environmental Laws.
"Indebtedness" shall mean, with respect to the Borrower or any of its
Subsidiaries, (a) all items, except items of consolidated shareholders' equity
or capital stock or surplus or general contingency or deferred tax reserves,
which in accordance with generally accepted accounting principles would be
included in determining total liabilities as shown on the liability side of a
consolidated balance sheet of the Borrower, (b) all reimbursement obligations
with respect to outstanding letters of credit, and (c) all Guaranties of
Indebtedness.
"Indebtedness for Money Borrowed" shall mean, with respect to any
specified Person, all money borrowed by such Person and Indebtedness represented
by notes payable by such Person and drafts accepted representing extensions of
credit to such Person, all obligations of such Person evidenced by bonds,
debentures, notes, or other similar instruments, all Indebtedness of such Person
upon which interest charges are customarily paid, and all Indebtedness of such
Person issued or assumed as full or partial payment for property or services,
whether or not any such notes, drafts, obligations, or Indebtedness represent
Indebtedness for money borrowed. For purposes of this definition, interest which
is accrued but not paid on the original due date or within any applicable cure
or grace period as provided by the underlying contract for such interest shall
be deemed Indebtedness for Money Borrowed.
-7-
14
"Interest on Indebtedness for Money Borrowed" shall mean the total
interest due and payable by Borrower and any of its Subsidiaries in any period
with respect to, or as a result of, Indebtedness for Money Borrowed.
"Interest Period" shall mean, (a) in connection with any Prime Rate
Advance, the period beginning on the date such Advance is made and ending on
(and shall include) the last day of the calendar month in which such Advance is
made, provided, however, that if a Prime Rate Advance is made on the last day of
any calendar month, it shall have an Interest Period ending on (and shall
include) the last day of the following calendar month; and (b) in connection
with any LIBOR Advance, the term of such Advance selected by the Borrower or
otherwise determined in accordance with this Agreement. Notwithstanding the
foregoing, however, (i) any applicable Interest Period which would otherwise end
on a day which is not a Business Day shall be extended to the next succeeding
Business Day unless, with respect to LIBOR Advances only, such Business Day
falls in another calendar month, in which case such Interest Period shall end on
the next preceding Business Day, (ii) with respect to LIBOR Advances only, any
applicable Interest Period which begins on a day for which there is no
numerically corresponding day in the calendar month during which such Interest
Period is to end shall (subject to clause (i) above) end on the last day of such
calendar month, and (iii) no Interest Period shall extend beyond the Maturity
Date or such earlier date as would interfere with the repayment obligations of
the Borrower hereunder. Interest shall be due and payable with respect to any
Advance as provided in Section 2.3 hereof.
"Interest Rate Basis" shall mean the Prime Rate Basis, or the LIBOR
Basis as appropriate.
"Lender's Available Commitment" shall mean, as of any particular time,
for any Bank, such Bank's portion of the lesser of (i) the Availability
Restriction and (ii) the Commitment on such date (based on such Bank's
Commitment Ratio).
"LIBOR" shall mean, for any Interest Period, the rate per annum
appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term LIBOR shall mean, for any LIBOR Advance for any Interest
Period therefor, the rate per annum appearing on the Reuters Screen LIBO Page as
the London interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two (2) Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided, however, if more
than one rate is specified on the Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates.
-8-
15
"LIBOR Advance" shall mean an Advance which the Borrower requests to be
made as a LIBOR Advance or which is deemed to be a LIBOR Advance in accordance
with the provisions of Section 2.2 hereof, and which shall be in a principal
amount of at least $1,000,000 and in an integral multiple of $1,000,000.
"LIBOR Basis" shall mean a simple per annum interest rate equal to the
sum of (a) the quotient of (1) LIBOR divided by (2) one minus the LIBOR Reserve
Percentage, stated as a decimal, plus (b) the Applicable Margin. If the LIBOR
Basis as so calculated is not expressed as an even multiple of one sixteenth of
one percent (1/16%), the LIBOR Basis shall be rounded upward to the nearest
one-sixteenth of one percent (1/16%) and shall apply to Interest Periods of one
(1), two (2), three (3), six (6) and twelve (12) months, and, once determined,
shall remain unchanged during the applicable Interest Period, except for changes
to reflect adjustments in the LIBOR Reserve Percentage.
"LIBOR Reserve Percentage" shall mean the percentage which is in effect
from time to time under Regulation D of the Board of Governors of the Federal
Reserve System, as such regulation may be amended from time to time, as the
maximum reserve requirement applicable with respect to Eurocurrency Liabilities
(as that term is defined in Regulation D), whether or not any Bank has any
Eurocurrency Liabilities subject to such reserve requirement at that time. The
LIBOR Basis for any LIBOR Advance shall be adjusted as of the effective date of
any change in the LIBOR Reserve Percentage.
"Lien" shall mean, with respect to any property, any mortgage, lien,
pledge, assignment, charge, security interest, title retention agreement, levy,
execution, seizure, attachment, garnishment, or other encumbrance of any kind in
the nature of any of the foregoing in respect of such property, whether or not
xxxxxx, vested, or perfected.
"Loan Documents" shall mean, without limitation, this Agreement, the
Notes, the Swing Line Note, all legal opinions or reliance letters issued by
counsel to the Borrower in connection herewith, all Requests for Advance, and
all other documents, instruments, certificates and agreements executed or
delivered in connection with or contemplated by this Agreement.
"Loans" shall mean, collectively, amounts advanced by the Banks to the
Borrower under the Commitment, not to exceed the Commitment, and evidenced by
the Notes.
"Majority Banks" shall mean, at any time, Xxxxx the total of whose
Commitment Ratios exceeds sixty-six and two-thirds percent (66-2/3%) of the
Commitment Ratios of all Banks entitled to vote with respect thereto.
-9-
16
"Materially Adverse Effect" shall mean a materially adverse effect upon
the business, assets, liabilities, financial condition, results of operations,
or business prospects of the Borrower or upon the ability of the Borrower to
perform any material obligations under this Agreement or any other Loan
Documents; in any case, whether resulting from any single act, omission,
situation, status, event, or undertaking, or several acts, omissions,
situations, statuses, events, or undertakings.
"Maturity Date" shall mean January 4, 2001, or such earlier date as
payment of the Loans shall be due (whether by acceleration or otherwise) or such
later date as to which payment of the Loans may be extended in accordance with
the terms hereof.
"Moody's shall mean Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Necessary Authorizations" shall mean all authorizations, consents,
permits, approvals, licenses, and exemptions from, and all filings and
registrations with, and all reports to, any governmental or other regulatory
authority whether federal, state, or local, and all agencies thereof necessary,
appropriate or useful for the conduct of the businesses and the ownership (or
lease) of the properties and assets of the Borrower and its Subsidiaries.
"Negative Pledge Properties" shall mean those certain real properties
owned by the Borrower or any Subsidiary Guarantor and, as of the Agreement Date,
more particularly described on Schedule 1 attached hereto and shall (a) include
any other properties which the Banks whose Commitment Ratios equal 100% of the
total Commitment Ratios, in their sole discretion, permit to be designated as
"Negative Pledge Properties" hereunder and (b) exclude any properties which the
Borrower requests to have removed from the pool of Negative Pledge Properties.
"Net Book Value" shall mean, for any asset of the Borrower or its
Subsidiaries, the cost basis of such asset less the accumulated depreciation for
such asset as set forth in the books and records of the Borrower, all determined
in accordance with GAAP.
"Net Proceeds" shall mean, with respect to any issuance by the Borrower
of any common stock, the gross sales price for the securities being sold, net of
(a) amounts reserved, if any, for taxes payable with respect to the sale, (b)
reasonable and customary transaction costs payable by the Borrower, (c)
contingencies with respect to such sale appropriately
-10-
17
reserved for by the Borrower, and (d) until actually received by the Borrower,
any portion of the sales price held in escrow or paid in installments.
"Net Worth" shall mean the sum of (1) consolidated shareholder's equity
of the Borrower as calculated pursuant to GAAP plus (2) the total accumulated
depreciation reflected on the consolidated balance sheet of Borrower with
respect to all the tangible assets of the Borrower.
"NOI" shall mean, for any Negative Pledge Property or Unencumbered Real
Estate Assets, (a) the total gross income of such property less (b) the sum of
(i) all operating expenses of such property (which includes, without limitation,
amortization of leasing fees) and (ii) capital expense and tenant improvement
reserves in the amount of twenty cents ($.20) per square foot of building space,
except that no such capital expense reserve shall be charged with respect to
building space for which a Person other than the Borrower or its Subsidiaries
has a contractual responsibility for structural repairs and replacements.
"Nonrecourse" shall mean, with respect to Indebtedness of the Borrower
or its Subsidiaries, Indebtedness for which the Borrower or such Subsidiary has
no personal liability (other than to the extent of the property securing such
Indebtedness) except under circumstances which are reasonable and customary in
the commercial real estate lending industry.
"Notes" shall mean those certain promissory notes in the aggregate
principal amount of up to $100,000,000; one such note issued to each of the
Banks by the Borrower, each one in substantially the form of Exhibit A attached
hereto, any other promissory notes issued pursuant to this Agreement in respect
of the Commitment, and any extensions, renewals or amendments to any of the
foregoing.
"Obligations" shall mean (a) all payment and performance obligations of
the Borrower and all other obligors to the Banks, the Swing Line Lender and the
Administrative Agent under this Agreement and the other Loan Documents, as they
may be amended from time to time, or as a result of making the Loans and the
Swing Line Loans, and (b) the obligation to pay an amount equal to the amount of
any and all damages which the Banks, the Swing Line Lender and the
Administrative Agent, or any of them, may suffer by reason of a breach by either
the Borrower or any other obligor of any obligation, covenant, or undertaking
with respect to this Agreement or any other Loan Document.
"Overnight Federal Funds Rate" shall mean the rate on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day by the Federal Reserve Bank of
New York.
-11-
18
"Payment Date" shall mean the first Business Day of each calendar
month.
"Permitted Liens" shall mean, as applied to any specified Person:
(a) Any Lien in favor of the Administrative Agent or the
Banks given to secure the Obligations;
(b) (i) Liens on real estate for real estate taxes not
yet delinquent and (ii) Liens for taxes, assessments, judgments, governmental
charges or levies, or claims the non-payment of which is being contested in good
faith by appropriate proceedings and for which adequate reserves have been set
aside on such Person's books, but only so long as no foreclosure, distraint,
sale, or similar proceedings have been commenced with respect thereto and which
remain unstayed for a period of thirty (30) days after their commencement;
(c) Liens of carriers, warehousemen, mechanics, laborers,
and materialmen incurred in the ordinary course of business for sums not yet due
or being contested in good faith, if such reserve or appropriate provision, if
any, as shall be required by GAAP shall have been made therefor;
(d) Xxxxx incurred in the ordinary course of business in
connection with worker's compensation and unemployment insurance;
(e) Restrictions on the transfer of assets imposed by any
agreement, or by any federal, state or local statute, regulation or ordinance
applicable to such Person;
(f) Easements, rights-of-way, restrictions, and other
similar encumbrances on the use of real property which do not interfere with the
ordinary conduct of the business of such Person, or Liens incidental to the
conduct of the business of such Person or to the ownership of its properties
which were not incurred in connection with Indebtedness or other extensions of
credit and which do not in the aggregate materially detract from the value of
such properties or materially impair their use in the operation of the business
of such Person;
(g) Purchase money mortgages or security interests,
conditional sale arrangements and other similar security interests and mortgages
or security interests subject to which such property is acquired (together with
any renewal or other refinancing thereof), on any property or assets hereinafter
acquired by such Person (hereafter referred to individually as a "Purchase Money
Security Interest"); provided, however, that:
-12-
19
(i) the transaction in which any Purchase Money
Security Interest is proposed to be created is not otherwise prohibited by this
Agreement;
(ii) any Purchase Money Security Interest shall
attach only to the property or asset acquired in such transaction and shall not
extend to or cover any other assets or properties of such Person;
(iii) the Indebtedness secured or covered by any
Purchase Money Security Interest shall not exceed the cost of the property or
asset acquired; and
(iv) the Indebtedness secured by Purchase Money
Security Interests shall be Nonrecourse to the Borrower or any of its
Subsidiaries;
(h) Liens of record on the Agreement Date as set forth on
Schedule 2 attached hereto;
(i) Liens securing Indebtedness permitted under Section
7.1 hereof; and
(j) leases with respect to which Borrower (or any of its
Subsidiaries) is the lessor with respect to real property owned by the Borrower
or such Subsidiary and which are entered into by the Borrower or such Subsidiary
in the ordinary course of its business.
"Person" shall mean an individual, corporation, partnership, limited
liability company, trust, or unincorporated organization, or a government or any
agency or political subdivision thereof.
"Plan" shall mean an employee benefit plan within the meaning of
Section 3(3) of ERISA maintained by or contributed to by the Borrower or any
ERISA Affiliate.
"Prime Rate" shall mean, at any time, the fluctuating and floating rate
per annum equal to the rate of interest announced by the Administrative Agent as
its reference rate for the determination of interest rates for loans of varying
maturities in U.S. Dollars to United States residents of varying degrees of
creditworthiness and being quoted by the Administrative Agent as its "prime
rate." The Prime Rate is not necessarily the lowest rate of interest charged to
borrowers of the Administrative Agent.
"Prime Rate Advance" shall mean an Advance which the Borrower requests
to be made as a Prime Rate Advance or is deemed to be a Prime Rate Advance in
accordance with the provisions of Section 2.2 hereof. Prime Rate Advances may be
in any amount designated by the Borrower, provided that such amount is a whole
dollar amount.
-13-
20
"Prime Rate Basis" shall mean a simple interest rate per annum equal to
the Prime Rate. The Prime Rate Basis shall be adjusted automatically as of the
opening of business on the effective date of each change in the Prime Rate to
account for such change.
"Property" shall mean any real property or personal property, plant,
building, facility, structure, underground storage tank or unit, equipment,
inventory or other asset owned, leased or operated by the Borrower or any of its
Subsidiaries (including, without limitation, any surface water thereon or
adjacent thereto and soil and groundwater thereunder).
"REIT" shall mean a Real Estate Investment Trust (or REIT) as such term
is defined in the Code.
"Reportable Event" shall have the meaning set forth in Section 4043(b)
of ERISA.
"Request for Advance" shall mean any certificate signed by an
Authorized Signatory of the Borrower requesting an Advance hereunder which will
increase the aggregate amount of the Loans outstanding and the Swing Line Loans
outstanding, which certificate shall be denominated a "Request for Advance," and
shall be in substantially the form of Exhibit B-1 attached hereto. Each Request
for Advance shall, among other things, (a) specify the date of the Advance,
which shall be a Business Day, (b) specify the amount of the Advance and the use
of the proceeds thereof, (c) the type of the Advance, (d) with respect to LIBOR
Advances, the Interest Period selected by the Borrower, (e) state that there
shall not exist, on the date of the requested Advance and after giving effect
thereto, a Default or an Event of Default, (f) state that all conditions
precedent to the making of the Advance have been satisfied and (g) certify that
the aggregate amount of the Swing Line Loans and the Loans, together with the
requested Advance (or Swing Line Advance), does not exceed the Available
Commitment.
"Request for Swing Line Advance" shall mean any certificate signed by
an Authorized Signatory of the Borrower requesting a Swing Line Advance
hereunder which will increase the aggregate amount of the Swing Line Loans
outstanding, which certificate shall be denominated a "Request for Swing Line
Advance," and shall be in substantially the form of Exhibit B-2 attached hereto.
Each Request for Swing Line Advance shall, among other things, (a) specify the
date of the Swing Line Advance, which shall be a Business Day, (b) specify the
amount of the Swing Line Advance and certify that the use of the proceeds
thereof will be in compliance with the terms of the Loan Agreement, (c) state
that there shall not exist, on the date of the requested Swing Line Advance and
after giving effect thereto, a Default or an Event of Default, (d) state that
all conditions precedent to the making of the Swing Line Advance have been
satisfied and (e) certify that the aggregate amount of the
-14-
21
Swing Line Loans and the Loans, together with the amount of the Swing Line
Advance, does not exceed the Available Commitment and the Available Swing Line
Commitment.
"S&P" shall mean Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc.
"Senior Management" shall mean the Chairman and Chief Executive
Officer, President and Chief Operating Officer and Executive Vice President and
Chief Financial Officer of the Borrower.
"Solvent" shall mean, with respect to any Person on a particular date,
that on such date (i) the fair value of the property (tangible or intangible) of
such Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (ii) the amount that will be
required to pay the probable liabilities of such Person on its debts as they
become absolute and matured will not be greater than the fair salable value of
the assets of such Person at such time, (iii) such Person is able to realize
upon its assets and pay its debts and other liabilities, contingent obligations
and other commitments as they mature in the normal course of business, and (iv)
such Person is not engaged in a business or a transaction, and is not about to
engage in a business or a transaction, for which such Person's property would
constitute unreasonably small capital after giving due consideration to
prevailing practices in the industry in which such Person is engaged. In
computing the amount of any contingent liability at any time, it is intended
that such liability will be computed at the amount which, in light of all the
facts and circumstances existing at such time, represents the amount that might
reasonably be expected to become an actual or matured liability.
"Subsidiary" shall mean, as applied to any Person, (a) any corporation
of which fifty percent (50%) or more of the outstanding stock (other than
directors' qualifying shares) having ordinary voting power to elect a majority
of its board of directors, regardless of the existence at the time of a right of
the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or any
partnership of which fifty percent (50%) or more of the outstanding partnership
interests is at the time owned by such Person, or by one or more Subsidiaries of
such Person, or by such Person and one or more Subsidiaries of such Person, and
(b) any entity (other than a corporation or a partnership) which is controlled
or capable of being controlled by such Person, or by one or more Subsidiaries of
such Person, or by such Person and one or more Subsidiaries of such Person.
"Subsidiary Guarantor" shall mean any Subsidiary of the Borrower which
has issued a Guarantee, in substantially the form of Exhibit C attached hereto,
with respect to the Obligations in favor of the Administrative Agent and the
Lenders.
-15-
22
"Swing Line Advance" or "Swing Line Advances" shall mean amounts
advanced by the Swing Line Lender to the Borrower pursuant to Section 2.15
hereof on the occasion of any borrowing. Swing Line Advances may be in any
amount designated by the Borrower, provided that such amount is a whole dollar
amount.
"Swing Line Commitment" shall mean the obligation of the Swing Line
Lender to advance funds in the aggregate sum of up to $5,000,000 to the Borrower
pursuant to the terms hereof.
"Swing Line Lender" shall mean NationsBank, N.A.
"Swing Line Loans" shall mean the aggregate principal amount of all
Swing Line Advances.
"Swing Line Note" shall mean that certain promissory note in the
principal amount of $5,000,000 issued by the Borrower to the Swing Line Lender,
substantially in the form of Exhibit D attached hereto, any other swing line
note issued pursuant to this Agreement in respect of the Swing Line Commitment,
and any extensions, renewals or amendments to any of the foregoing.
"Total Assets" shall mean, as of any date, (a) the sum of (i) the
undepreciated book value of all real estate assets of the Borrower on a
consolidated basis and the percentage interest of the Borrower in the
undepreciated book value of any other real estate assets owned by an
Unconsolidated Entity plus (ii) the aggregate book value of all other assets of
the Borrower on a consolidated basis and the percentage interest of the Borrower
in the book value of any other assets owned by an Unconsolidated Entity,
determined in accordance with GAAP, less (b) the book value of all intangible
assets of the Borrower on a consolidated basis and the percentage interest of
the Borrower in any intangible assets owned by an Unconsolidated Entity,
determined in accordance with GAAP.
"Total Liabilities" shall mean, as of any date, the sum of (a) all
items shown as liabilities on the Borrower's consolidated balance sheet and
shall include, without limitation, all contingent liabilities (including but not
limited to Guaranties, deferred purchase price of property or services, and any
pre-sale obligations relating to the purchase of any real or personal property)
and all subordinated debt of the Borrower plus (b) the greater of (i) the
Borrower's recourse interest in an Unconsolidated Entity's debt, or (ii) pro
rata interest in all debt owed by an Unconsolidated Entity which is either
recourse or non-recourse to the Borrower or Unconsolidated Entity, as
applicable.
-16-
23
"Total Secured Liabilities" shall mean, as of any date, Total
Liabilities which are secured in any manner by any Lien on any real property.
"Unconsolidated Entity" shall mean any Person in which the Borrower or
any Subsidiary Guarantor, directly or indirectly, has an ownership interest,
including, without limitation, any joint venture partnership in which the
Borrower is a joint venture partner, whose financial results are not
consolidated under GAAP with the financial results on the consolidated financial
statements of the Borrower.
"Unencumbered Real Estate Assets" shall mean the interest in real
property (excluding raw land) which is owned by the Borrower or any Subsidiary
Guarantor and which is not subject to any mortgage debt or security interests
and shall include, without limitation, all Borrower held mortgage note
receivables.
"Unsecured Senior Debt" shall mean the sum of (a) the Obligations and
(b) Indebtedness for Money Borrowed of the type permitted under Section 7.1(h)
hereof, exclusive of Indebtedness for Money Borrowed which is subordinated to
the Obligations on terms satisfactory to the Majority Banks and Indebtedness for
Money Borrowed which is secured by assets of the Borrower or any of its
Subsidiaries.
"Use" means use, ownership, development, construction, maintenance,
management, operation or occupancy.
"Value of Negative Pledge Property" shall mean, as of any calculation
date, the aggregate sum of the NOI for all Negative Pledge Properties as of the
last day of the most recently completed fiscal quarter (or fiscal year), for the
twelve (12) consecutive months immediately preceding such last day of the most
recently completed fiscal quarter (or fiscal year) capitalized at a rate of ten
percent (10%).
"Value of Unencumbered Real Estate Assets" shall mean, as of any
calculation date, the sum of (a) the NOI for all Unencumbered Real Estate Assets
(other than property held for sale and mortgage note receivables) as of the last
day of the most recently completed fiscal quarter (or fiscal year), for the
twelve (12) consecutive months immediately preceding such date capitalized at a
rate of ten percent (10%), (b) the Net Book Value of property of the Borrower or
any Subsidiary Guarantor held for sale, and (c) the carrying value (as set forth
on the Borrower's most recent financial statement) of all mortgage note
receivables held by the Borrower or any Subsidiary Guarantor.
Each definition of an agreement in this Article 1 shall include such
agreement as modified, amended, or supplemented from time to time with the prior
written consent of the
-17-
24
Majority Banks, except as provided in Section 11.12 hereof, and except where the
context otherwise requires, definitions imparting the singular shall include the
plural and vice versa. Except where otherwise specifically restricted, reference
to a party to a Loan Document includes that party and its successors and
assigns. All terms used herein which are defined in Article 9 of the Uniform
Commercial Code in effect in the State of Georgia on the date hereof and which
are not otherwise defined herein shall have the same meanings herein as set
forth therein.
All accounting terms used herein without definition shall be used as
defined under GAAP.
ARTICLE 2 - Loans.
Section 2.1 The Loans.
(a) Loans by the Banks. Subject to the terms and conditions of this
Agreement, the Banks agree, severally in accordance with their Commitment
Ratios, and not jointly, upon the terms and subject to the conditions of this
Agreement, to lend and relend to the Borrower, prior to the Maturity Date,
amounts which in the aggregate at any one time outstanding do not exceed the
Available Commitment.
(b) Swing Line Loans by the Swing Line Lender. Subject to the terms and
conditions of this Agreement, the Swing Line Lender agrees upon the terms and
subject to the conditions of this Agreement to lend and relend to the Borrower,
prior to the Maturity Date, Swing Line Advances which in the aggregate at any
one time outstanding do not exceed the Available Swing Line Commitment.
Section 2.2 Manner of Borrowing and Disbursement.
(a) Choice of Interest Rate, Etc. Any Advance shall, at the
option of the Borrower, be made as a Prime Rate Advance or a LIBOR Advance;
provided, however, that (i) if the Borrower fails to give the Administrative
Agent written notice specifying whether an Advance is to be repaid or reborrowed
on the last day of the applicable Interest Period, such Advance shall be repaid
and then reborrowed as a Prime Rate Advance on the last day of the applicable
Interest Period and (ii) the Borrower may not select a LIBOR Advance if, at the
time of such selection, a Default has occurred and is continuing. LIBOR Advances
shall in all cases be subject to Section 2.3(e) and Article 10 hereof. Any
notice given to the Administrative Agent in connection with a requested Advance
hereunder or a requested adjustment of an Interest Rate Basis hereunder shall be
given to the Administrative Agent
-18-
25
prior to 11:00 a.m. (Eastern time) on a Business Day in order for such Business
Day to count toward the minimum number of Business Days required.
(b) Prime Rate Advances.
(i) Initial Advances. The Borrower, prior to
11:00 a.m. (Eastern Time) on the Business Day immediately preceding the date of
the advance, shall give to the Administrative Agent in the case of Prime Rate
Advances an irrevocable written notice in the form of a Request for Advance, or
notice by telecopy followed immediately by a Request for Advance; provided,
however, that the failure by the Borrower to confirm any notice by telecopy with
a Request for Advance shall not invalidate any notice so given.
(ii) Repayments and Interest Rate Adjustments.
Upon irrevocable prior written notice delivered to the Administrative Agent
prior to 11:00 a.m. (Eastern Time) (A) on the day of payment under this
subsection, the Borrower may repay a Prime Rate Advance without regard to its
Payment Date, or (B) at least three (3) Business Days prior to the date of any
Interest Rate Basis adjustment, the Borrower may request that the Administrative
Agent reset the Interest Rate Basis to the LIBOR Basis for all or any portion of
a Prime Rate Advance without regard to its Payment Date. The determination of
any LIBOR Basis hereunder shall be made in accordance with Section 2.2(c)
hereof. Upon the effective date of an Interest Rate Basis adjustment hereunder,
that portion of the Prime Rate Advance so adjusted shall be treated for all
purposes hereunder as a LIBOR Advance.
(c) LIBOR Advances.
(i) Initial Advances. The Borrower shall give
the Administrative Agent in the case of LIBOR Advances at least (A) three (3)
Business Days irrevocable verbal notice, and (B) two (2) Business Days
irrevocable written notice in the form of a Request for Advance, or notice by
telecopy followed immediately by a Request for Advance; provided, however, that
the failure of the Borrower to confirm any notice by telecopy with a Request for
Advance shall not invalidate any notice so given. The Administrative Agent,
whose determination shall be conclusive, shall determine the available LIBOR
Bases and shall notify the Borrower of such LIBOR Bases. The Borrower shall
promptly notify the Administrative Agent by telecopy or by telephone, and shall
immediately confirm any such telephonic notice in writing, of its selection of a
LIBOR Basis and the Interest Period for such Advance or Borrower's decision not
to borrow a LIBOR Advance or have the Interest Rate Basis adjusted, as the case
may be.
(ii) Repayments and Interest Rate Adjustment. At
least three (3) Business Days prior to the last day of the applicable Interest
Period for a LIBOR Advance,
-19-
26
the Borrower shall give the Administrative Agent written notice specifying
whether all or a portion of any LIBOR Advance outstanding on the last day of the
applicable Interest Period (i) is to have the LIBOR Basis reset to a new LIBOR
Basis for an additional period, (ii) is to have the LIBOR Basis reset to the
Prime Rate Basis, or (iii) is to be repaid and not reborrowed. Upon the last day
of the applicable Interest Period such LIBOR Advance will, subject to the
provisions hereof, be so repaid or, as applicable, shall be treated for all
purposes hereunder as a LIBOR Advance (having an Interest Period and LIBOR Basis
selected in accordance with Section 2.2(c)(i) hereof) or a Prime Rate Advance.
(d) Notification of Banks. Upon receipt of a Request for
Advance or notice by telephone or telecopy, the Administrative Agent shall
promptly (and with respect to LIBOR Advances, not less than two (2) Business
Days prior to the date of such Advance) notify each Bank by telephone or
telecopy of the contents thereof and the amount of such Bank's portion of the
applicable Advance. Each Bank shall, not later than 12:00 noon (Eastern time) on
the date specified in such notice, make available to the Administrative Agent at
the Administrative Agent's Office, or at such account as the Administrative
Agent shall designate, the amount of its portion of the applicable Advance in
immediately available funds.
(e) Disbursement.
(i) Prior to 2:00 p.m. (Eastern time) on the
date of an Advance hereunder, the Administrative Agent shall, subject to the
satisfaction of the conditions set forth in this Section 2.2 and in Article 3
hereof, disburse the amounts made available to the Administrative Agent by the
Banks in immediately available funds by crediting the amounts so made available
to the account of the Borrower maintained with the Administrative Agent or an
affiliate of the Administrative Agent.
(ii) Unless the Administrative Agent shall have
received notice from a Bank prior to the date of any Advance that such Bank will
not make available to the Administrative Agent such Bank's ratable portion of
such Advance, and so long as notice has been given as provided in Section 2.2
hereof, the Administrative Agent may assume that such Bank has made such portion
available to the Administrative Agent on the date of such Advance and the
Administrative Agent may, in its sole discretion and in reliance upon such
assumption, without any obligation hereunder to do so, make available to the
Borrower on such date a corresponding amount. If and to the extent such Bank
shall not have so made such ratable portion available to the Administrative
Agent, such Bank agrees to repay to the Administrative Agent forthwith on demand
such corresponding amount together with interest thereon, for each day from the
date such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent for the first two (2) days that such
-20-
27
amount is not repaid, at the Overnight Federal Funds Rate, and, thereafter, at
the Overnight Federal Funds Rate plus four percent (4%).
(iii) If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Bank's portion of the applicable Advance for purposes of this
Agreement. If such Bank does not repay such corresponding amount immediately
upon the Administrative Agent's demand therefor, the Administrative Agent shall
notify the Borrower, and the Borrower shall pay such corresponding amount to the
Administrative Agent, together with all interest accrued thereon and on the same
terms and conditions that would have applied to such Advance had such Bank
funded its portion thereof. The failure of any Bank to fund its portion of any
Advance shall not relieve any other Bank of its obligation, if any, hereunder to
fund its respective portion of the Advance on the date of such borrowing, but no
Bank shall be responsible for any such failure of any other Bank.
(iv) In the event that, at any time when the
Borrower is not in Default, a Bank for any reason fails or refuses to fund its
portion of an Advance, then, until such time as such Bank has funded its portion
of such Advance, or all other Banks have received payment in full (whether by
repayment or prepayment) of the principal and interest due in respect of such
Advance, such non-funding Bank shall (i) have no right to vote regarding any
issue on which voting is required or advisable under this Agreement or any other
Loan Document, and (ii) not be entitled to receive payments of principal,
interest or fees from the Borrower in respect of such Advances which such Bank
failed to make. The provisions of this Section 2.2(e) will not impact upon any
remedies of the Borrower with respect to any Bank which fails to fund an Advance
hereunder at a time when the Borrower is otherwise in compliance with this
Agreement.
Section 2.3 Interest.
(a) On Prime Rate Advances. Interest on each Prime Rate
Advance shall be computed on the basis of a 360-day year for the actual number
of days elapsed and shall be payable at the Prime Rate Basis for such Advance in
arrears on each Payment Date. Interest on Prime Rate Advances then outstanding
shall also be due and payable on the Maturity Date.
(b) On LIBOR Advances. Interest on each LIBOR Advance
shall be computed on the basis of a 360-day year for the actual number of days
elapsed and shall be payable at the LIBOR Basis for such Advance in arrears on
each Payment Date without
-21-
28
regard to the duration of any Interest Period. Interest on LIBOR Advances then
outstanding shall also be due and payable on the Maturity Date.
(c) Interest if no Notice of Selection of Interest Rate
Basis. If the Borrower fails to give the Administrative Agent timely notice of
its selection of a LIBOR Basis or if for any reason (other than the gross
negligence or willful misconduct of the Administrative Agent) a determination of
a LIBOR Basis for any Advance is not timely concluded, the Prime Rate Basis
shall apply to such Advance.
(d) Upon Default. Upon the occurrence and during the
continuance of an Event of Default, the Majority Banks shall have the option
(but shall not be required to give prior notice thereof to the Borrower, to
accelerate the maturity of the Loans, or to exercise any other rights or
remedies hereunder in connection with the exercise of this right) to charge
interest on the outstanding principal balance of the Loans at the Default Rate
from the date of such Event of Default. Such interest shall be payable on the
earlier of DEMAND or the Maturity Date and shall accrue until the earlier of (i)
waiver or cure (to the satisfaction of the Majority Banks) of the applicable
Event of Default, (ii) agreement by the Majority Banks to rescind the charging
of interest at the Default Rate, or (iii) payment in full of the Obligations.
(e) LIBOR Advances. At no time may the number of
outstanding LIBOR Advances exceed six (6).
Section 2.4 Fees and Commissions.
(a) Commitment Fee. [Reserved]
(b) Utilization Fee. The Borrower agrees to pay to the
Administrative Agent for the benefit of the Banks, in accordance with their
respective Commitment Ratios, a utilization fee on the actual daily unborrowed
amount which is (i) the lesser of (A) the Commitment and (B) the Availability
Restriction minus (ii) the Loans and the Swing Line Loans then outstanding for
each day from July 1, 1998 through the Maturity Date, at a rate of (X)
twenty-five one-hundredths of one percent (.25%) per annum for each day that
such unborrowed amounts are greater than or equal to fifty percent (50%) of the
lesser of (1) the Commitment and (2) the Availability Restriction and (Y)
fifteen one-hundredths of one percent (.15%) per annum for each day that such
unborrowed amounts are less than fifty percent (50%) of the lesser of (1) the
Commitment and (2) the Availability Restriction. Such utilization fee shall be
computed on the basis of a year of 365/366 days for the actual number of days
elapsed, shall be payable quarterly in arrears on the first day of each calendar
quarter, commencing on October 1, 1998 (for the period from and including July
1, 1998 through September 30, 1998), and if then unpaid, on the Maturity Date,
and shall be fully earned when due and nonrefundable when paid.
-22-
29
(c) Extension Fee. The Borrower agrees to pay to the
Administrative Agent for the benefit of the Banks, in accordance with their
respective Commitment Ratios, an extension fee in the amount of one-eighth of
one percent (1/8%) times the Commitment. Such extension fee shall be due and
payable on the effective date of any extension granted hereunder and shall be
fully earned when due and non-refundable when paid.
(d) Late Payment Charge. If the Borrower fails to make
any payment of principal, interest or fees hereunder as and when due, the
Borrower shall pay to the Administrative Agent for the ratable benefit of the
Banks or the Swing Line Lender, as the case may be, a late charge in an amount
equal to four percent (4%) of the amount of such delinquent payment.
Section 2.5 Reduction of Commitment. The Borrower shall have the right,
at any time and from time to time after the Agreement Date and prior to the
Maturity Date, upon at least three (3) Business Days' prior written notice to
the Administrative Agent, without premium or penalty, to cancel or reduce
permanently all or a portion of the Commitment, on a pro rata basis among the
Banks, provided that any such partial reduction shall be made in an amount not
less than $10,000,000 and in integral multiples of not less than $1,000,000. As
of the date of cancellation or reduction set forth in such notice, the
Commitment shall be permanently reduced to the amount stated in the Borrower's
notice for all purposes herein, and the Borrower shall, subject to Section 2.11
hereof, pay to the Administrative Agent for the account of the Banks the amount
necessary to reduce the principal amount of the Loans then outstanding under the
Commitment to not more than the amount of the Commitment as so reduced, and, if
such amount is a payment in full of the Loans, together with accrued interest on
the amount so prepaid.
Section 2.6 Prepayment. LIBOR Advances may be prepaid prior to the
applicable Payment Date, upon three (3) Business Day's prior written notice to
the Administrative Agent, provided that the Borrower, in the event of prepayment
for any reason, shall reimburse the Banks and the Administrative Agent, on the
earlier of demand or the Maturity Date, for any loss or out-of-pocket expense
incurred by the Banks or the Administrative Agent in connection with such
prepayment, as set forth in Section 2.11. Any notice of prepayment shall be
irrevocable and all amounts prepaid on the Loans shall be applied first to
interest and fees and other amounts due and payable hereunder, and then to
principal. Partial prepayments of LIBOR Advances shall be in a principal amount
of not less than $100,000 and in an integral multiple of $100,000.
-23-
30
Section 2.7 Repayment.
(a) Loans Exceeding Commitment. If, at any time, the
aggregate amount of the Loans and the Swing Line Loans then outstanding shall
exceed the lesser of (i) the Commitment and (ii) the Availability Restriction,
the Borrower shall make a repayment of the principal amount of the Loans and the
Swing Line Loans in an amount equal to such excess (which payment shall be
applied first to the Swing Line Loans then outstanding). If, at any time, the
aggregate amount of the Swing Line Loans then outstanding shall exceed the
lesser of (x) the Swing Line Commitment and (y) the Lender's Available
Commitment for the Swing Line Lender minus the Bank Loans Outstanding for the
Swing Line Lender, the Borrower shall make a repayment of the principal amount
of the Swing Line Loans in an amount equal to such excess (which repayment may,
in accordance with the terms hereof, be by way of an Advance in accordance with
Section 2.15 hereof).
(b) Maturity. In addition to the foregoing, a final
payment of all Obligations then outstanding shall be due and payable on the
Maturity Date.
Section 2.8 Notes; Loan Accounts.
(a) The Loans shall be repayable in accordance with the
terms and provisions set forth herein, and shall be evidenced by the Notes. One
of the Notes shall be payable to the order of each Bank in accordance with the
respective Commitment Ratio of the Bank. The Notes shall be issued by the
Borrower to each of the Banks and shall be duly executed and delivered by
Authorized Signatories.
(b) Each Bank may open and maintain on its books in the
name of the Borrower a loan account with respect to the Loans and interest
thereon. Each Bank which opens such loan account or accounts shall debit the
applicable loan account for the principal amount of each Advance made by it and
accrued interest thereon, and shall credit such loan account for each payment on
account of principal of or interest on the Loans. The records of each Bank with
respect to the accounts maintained by it shall be prima facie evidence of the
Loans and accrued interest thereon, but the failure to maintain such records
shall not impair the obligation of the Borrower to repay Indebtedness hereunder.
(c) Each Advance from the Banks under this Agreement
shall be made pro rata on the basis of their respective Commitment Ratios.
-24-
31
Section 2.9 Manner of Payment.
(a) Each payment (including any prepayment) by the
Borrower on account of the principal of or interest on its Loans, fees, and any
other amount owed to the Banks or the Administrative Agent under this Agreement,
the Notes, or the other Loan Documents shall be made not later than 12:00 noon
(Eastern time) on the date specified for payment under this Agreement or such
other Loan Document to the Administrative Agent to an account designated by the
Administrative Agent, for the account of the Banks or the Administrative Agent,
as the case may be, in lawful money of the United States of America in
immediately available funds. Any payment received by the Administrative Agent
after 12:00 noon (Eastern time) shall be deemed received on the next Business
Day for purposes of interest accrual. In the case of a payment for the account
of a Bank, the Administrative Agent will promptly thereafter distribute the
amount so received in like funds to such Bank. In the event that the
Administrative Agent does not promptly distribute such amounts, the
Administrative Agent shall pay interest on such amounts to the Banks at the
Overnight Federal Funds Rate until such amounts are distributed. If the
Administrative Agent shall not have received any payment from the Borrower as
and when due, the Administrative Agent will promptly notify the Banks
accordingly and the Administrative Agent shall not be obligated to make any
distributions under this Section 2.9.
(b) If any payment under this Agreement or any of the
Notes shall be specified to be made upon a day which is not a Business Day, it
shall be made on the next succeeding day which is a Business Day, and such
extension of time shall in such case be included in computing interest and fees,
if any, in connection with such payment.
(c) The Borrower agrees to pay principal, interest, fees,
and all other amounts due hereunder or under the Notes without set-off or
counterclaim or any deduction whatsoever.
(d) If the Borrower is required by Applicable Law to
deduct any taxes from or in respect of any sum payable to the Administrative
Agent or any Bank hereunder, under any Note or under any other Loan Document:
(i) the sum payable hereunder or thereunder, as applicable, shall be increased
to the extent necessary to provide that, after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.9(d)), the Administrative Agent or such Bank, as applicable, receives an
amount equal to the sum it would have received had no such deductions been made;
(ii) the Borrower shall make such deductions from such sums payable hereunder or
thereunder, as applicable, and pay the amount so deducted to the relevant taxing
authority as required by Applicable Law; and (iii) the Borrower shall provide
the Administrative Agent or such Bank, as applicable, with evidence satisfactory
to the Administrative Agent or such Bank, as
-25-
32
applicable, that such deducted amounts have been paid to the relevant taxing
authority. Before making any such deductions, such Bank shall designate a
different lending office and shall take such alternative courses of action if
such designation or alternative courses of action will avoid the need for such
deductions and will not in the good faith judgment of such Bank be otherwise
disadvantageous to such Bank.
Section 2.10 Application of Payments. Payments made to the
Administrative Agent, the Swing Line Lender or the Banks, or any of them, or
otherwise received by the Administrative Agent, the Swing Line Lender or the
Banks, or any of them (from realization on collateral for the Obligations or
otherwise), shall be distributed (subject to Section 2.2(e) hereof) as follows:
First, to the costs and expenses, if any, incurred by the Administrative Agent,
the Swing Line Lender or the Banks, or any of them, to the extent permitted by
Section 11.2 hereof in the collection of such amounts under this Agreement or
any of the other Loan Documents, including, without limitation, any reasonable
costs incurred in connection with the sale or disposition of any collateral for
the Obligations; Second, pro rata among the Administrative Agent, the Swing Line
Lender and the Banks based on the total amount of fees then due and payable
hereunder or under any other Loan Document and to any other fees and commissions
then due and payable by the Borrower to the Banks, the Swing Line Lender and the
Administrative Agent under this Agreement or any Loan Document; Third, to any
unpaid interest of the Borrower which may have accrued (i) first on the Swing
Line Loans and (ii) thereafter on the Loans, pro rata among the Banks based on
the outstanding principal amount of the Loans of the Borrower outstanding
immediately prior to such payment; Fourth, to the Swing Line Lender, to any
unpaid principal of the Swing Line Loans then outstanding; Fifth, pro rata among
the Banks based on the outstanding principal amount of the Loans of the Borrower
outstanding immediately prior to such payment, to any unpaid principal of the
Loans; Sixth, to any other Obligations not otherwise referred to in this Section
2.10 until all such Obligations are paid in full; Seventh, to damages incurred
by the Administrative Agent, the Swing Line Lender or the Banks, or any of them,
by reason of any breach hereof or of any other Loan Documents; and Eighth, upon
satisfaction in full of all Obligations, to the Borrower or as otherwise
required by law. If any Bank shall obtain any payment (whether involuntary or
otherwise) on account of the Loans made by it in excess of its ratable share of
the Loans then outstanding and such Bank's share of any expenses, fees and other
items due and payable to it hereunder, such Bank shall forthwith purchase a
participation in the Loans from the other Banks as shall be necessary to cause
such purchasing Bank to share the excess payment ratably based on the Commitment
Ratios with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Bank, such purchase
from each Bank shall be rescinded and such Bank shall repay to the purchasing
Bank the purchase price to the extent of such recovery. The Borrower agrees that
any Bank so purchasing a participation from another Bank pursuant to this
Section may, to the fullest extent permitted by law,
-26-
33
exercise all its rights of payment with respect to such participation as fully
as if such Bank were the direct creditor of the Borrower in the amount of such
participation so long as the Borrower's Obligations are not increased. If the
Swing Line Lender shall obtain any payment (whether involuntary or otherwise) on
account of the Swing Line Loans made by it in excess of the Swing Line Loans
then outstanding and the Swing Line Lender's share of any expenses, fees and
other items due and payable to it hereunder, the Swing Line Lender shall
forthwith return such excess payment to the Administrative Agent for
distribution among the Banks based on the provisions of this Section.
Section 2.11 Reimbursement.
(a) Whenever any Bank shall sustain or incur any losses
or out-of-pocket expenses in connection with the repayment of a LIBOR Advance
prior to the end of the Interest Period for such Advance or failure by the
Borrower to borrow any LIBOR Advance after having given notice of its intention
to borrow in accordance with Section 2.2 hereof (whether by reason of the
election of the Borrower not to proceed or the non-fulfillment of any of the
conditions set forth in Article 3), the Borrower agrees to pay to such Bank,
upon the earlier of such Bank's demand or the Maturity Date, an amount
sufficient to compensate such Bank for all such losses. The amount of such
losses, absent manifest error, shall be binding and conclusive. Upon request of
the Borrower, such Bank shall provide a certificate setting forth the amount to
be paid to it by the Borrower hereunder and calculations therefor.
(b) Losses subject to reimbursement hereunder shall
include, without limiting the generality of the foregoing, any lost profit of
any Bank or any participant of such Bank over the remainder of the Interest
Period for such prepaid Advance.
Section 2.12 Capital Adequacy. If after the date hereof, any Bank
or the Swing Line Lender shall have determined that the adoption of any
Applicable Law regulating United States banks and regarding the capital adequacy
of banks or bank holding companies, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency of the U.S. charged with the interpretation or
administration thereof, or compliance by the Bank or the Swing Line Lender with
any request or directive regarding capital adequacy (whether or not having the
force of law) of any such Governmental Authority, central bank or comparable
agency, has the effect of reducing the rate of return on such Bank's or the
Swing Line Lender's capital as a consequence of its obligations hereunder to a
level below that which it could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's or the Swing Line Lender's
policies with respect to capital adequacy immediately before such adoption,
change or compliance and assuming that such Bank's or the Swing Line Lender's
capital was fully utilized prior to such adoption, change or compliance) by a
material
-27-
34
amount, then, upon the earlier of demand by such Bank or the Swing Line Lender
or the Maturity Date, the Borrower agrees to pay immediately to such Bank or the
Swing Line Lender, as the case may be, such additional amounts as shall be
sufficient to compensate such Bank or the Swing Line Lender for such reduced
return beginning as of the date of written notice to the Borrower described
above, together with interest on such amount from the fourth (4th) day after the
date of demand or the Maturity Date, as applicable, until payment in full
thereof at the Default Rate. A certificate of such Bank or the Swing Line
Lender, as the case may be, setting forth the amount to be paid to such Bank or
the Swing Line Lender by the Borrower as a result of any event referred to in
this paragraph shall, absent manifest error, be conclusive. Each Bank and the
Swing Line Lender agree that if any amount or any portion of any amount
described in this Section is subsequently recovered by such Bank or the Swing
Line Lender, such Bank and the Swing Line Lender, as the case may be, shall
promptly reimburse the Borrower to the extent of the amount so recovered. A
certificate of such Bank or the Swing Line Lender, as the case may be, setting
forth the amount of such recovery and the basis therefor shall be provided to
the Borrower.
Section 2.13 Bank Tax Forms. On or prior to the Agreement Date and
on or prior to the first Business Day of each calendar year thereafter, each
Bank which is organized in a jurisdiction other than the United States shall
provide each of the Administrative Agent and the Borrower with properly executed
originals of Forms 4224 or 1001 (or any successor form) prescribed by the
Internal Revenue Service or other documents satisfactory to the Borrower and the
Administrative Agent, and each such Bank shall provide properly executed
Internal Revenue Service Forms W-8 or W-9, as the case may be, certifying (i) as
to such Bank's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to such Bank hereunder
and under the Notes or (ii) that all payments to be made to such Bank hereunder
and under the Notes are subject to such taxes at a rate reduced to zero by an
applicable tax treaty. Each such Bank agrees to provide the Administrative Agent
and the Borrower with new forms prescribed by the Internal Revenue Service upon
the expiration or obsolescence of any previously delivered form, or after the
occurrence of any event requiring a change in the most recent forms delivered by
it to the Administrative Agent and the Borrower.
Section 2.14 Extension of the Maturity Date. Not later than June
30th of each year, the Borrower may request that the Administrative Agent, the
Swing Line Lender and the Banks extend the Maturity Date for an additional
twelve (12) month period beyond the existing Maturity Date. Any decision to
extend the Maturity Date shall be in the sole and absolute discretion of the
Administrative Agent, the Swing Line Lender and the Banks and shall be evidenced
in a writing executed by each of them, as appropriate. The failure of any such
Person to respond to a request for such extension within sixty (60) days of such
request shall be presumed to be a decision not to so extend the Maturity Date.
Upon any agreement
-28-
35
by the Administrative Agent and all of the Banks to extend the Maturity Date as
described in this Section, the term "Maturity Date" set forth in Article 1
hereof shall thereafter be the anniversary of the Maturity Date previously in
effect hereunder (or such earlier date as payment of the Loans shall be due,
whether by acceleration or otherwise). Any such extension granted hereunder
shall be conditioned upon the receipt by the Banks of the Extension Fee
referenced in Section 2.4(c) hereof. Extension of the Maturity Date with respect
to the Swing Line Loans shall be at the sole and absolute discretion of the
Swing Line Lender and shall be evidenced in a writing as described above in this
Section 2.14.
Section 2.15 Swing Line Loans.
(a) Swing Line Advances. The Borrower, prior to 12:00
p.m. (noon) (Eastern time) on the Business Day of funding any Swing Line
Advance, shall give to the Swing Line Lender an irrevocable written notice in
the form of a Request for Swing Line Advance, or notice by telecopy followed
immediately by a Request for Swing Line Advance; provided, however, that the
failure by the Borrower to confirm any notice by telecopy with a Request for
Swing Line Advance shall not invalidate any notice so given; provided further
that in no case will the Swing Line Lender be required to fund such Request for
Swing Line Advance under the Swing Line Commitment if such funding would
increase the aggregate Swing Line Loans to an amount in excess of the Available
Swing Line Commitment or if aggregate amounts of all Loans and Swing Line Loans
outstanding exceed the lesser of the Commitment or the Availability Restriction.
(b) Prepayment and Repayment.
(i) Upon irrevocable prior written notice
delivered to the Swing Line Lender prior to 12:00 p.m. (noon) (Eastern time) on
the day of payment under this Section, the Borrower may repay a Swing Line
Advance. In addition, upon demand of the Swing Line Lender, if such demand is
delivered prior to 11:00 a.m. (Eastern time) on a Business Day, the Borrower
shall on the following Business Day make a repayment of the Swing Line Loans
then outstanding in the amount so requested by the Swing Line Lender; provided,
however, that if such demand is delivered to the Borrower at or after 11:00 a.m.
(Eastern time) on a Business Day, the Borrower shall on the second Business Day
following receipt of such demand make such repayment. In order to facilitate
repayment of the Swing Line Loans, the Borrower hereby irrevocably requests the
Banks, and the Banks hereby severally agree, on the terms and conditions of this
Agreement (other than as provided in Article 2 hereof with respect to the
amounts of, the time of requests for, and the repayment of Advances hereunder
and in Article 3 hereof with respect to conditions precedent to Advances
hereunder), with respect to Swing Line Loans outstanding, upon request of the
Swing Line Lender or the Borrower (including without limitation after any
Default or Event of Default,
-29-
36
but prior to the occurrence of an event described in clauses (g) or (h) of
Section 8.1 hereof), to make an Advance to the Borrower in the amount of such
outstandings, and to pay the proceeds of such Advance directly to the
Administrative Agent to reimburse the Swing Line Lender for the amount of the
Swing Line Loans then outstanding. Each Bank shall pay its share of such Advance
by paying its portion of such Advance to the Administrative Agent in accordance
with Section 2.2(e) hereof and its Commitment Ratio, without reduction for any
set-off or counterclaim of any nature whatsoever and regardless of whether any
Default or Event of Default (other than with respect to an event described in
clauses (g) or (h) of Section 8.1 hereof) then exists or would be caused
thereby. If at any time that the Swing Line Loans are outstanding, any of the
events described in clauses (g) or (h) of Section 8.1 hereof shall have occurred
and be continuing, then each Bank shall, automatically upon the occurrence of
any such event and without any action on the part of the Swing Line Lender, the
Borrower, the Administrative Agent or the Banks, be deemed to have purchased an
undivided participation in the then outstanding principal amount of the Swing
Line Loans then outstanding in an amount equal to such Bank's Commitment Ratio,
and each Bank shall, notwithstanding such Event of Default, immediately pay to
the Administrative Agent for the account of the Swing Line Lender, in
immediately available funds, the amount of such Bank's participation (and the
Swing Line Lender shall deliver to such Bank a written confirmation of such loan
participation dated the date of the occurrence of such event and in the amount
of such Bank's Commitment Ratio).
(ii) If any payment under this Agreement or the
Swing Line Note shall be specified to be made upon a day which is not a Business
Day, it shall be made on the next succeeding day which is a Business Day, and
such extension of time shall in such case be included in computing interest and
fees, if any, in connection with such payment.
(iii) The Borrower agrees to pay principal,
interest, fees, and all other amounts due hereunder or under the Swing Line Note
without set-off or counterclaim or any deduction whatsoever.
(iv) If the Borrower is required by Applicable
Law to deduct any taxes from or in respect of any sum payable to the Swing Line
Lender hereunder, under the Swing Line Note or under any other Loan Document:
(i) the sum payable hereunder or thereunder, as applicable, shall be increased
to the extent necessary to provide that, after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.15(e)), the Swing Line Lender receives an amount equal to the sum it would
have received had no such deductions been made; (ii) the Borrower shall make
such deductions from such sums payable hereunder or thereunder, as applicable,
and pay the amount so deducted to the relevant taxing authority as required by
Applicable Law; and (iii) the Borrower shall provide the Swing Line Lender with
evidence satisfactory to the Swing
-30-
37
Line Lender that such deducted amounts have been paid to the relevant taxing
authority. Before making any such deductions, the Swing Line Lender shall
designate a different lending office and shall take such alternative courses of
action if such designation or alternative courses of action will avoid the need
for such deductions and will not in the good faith judgment of the Swing Line
Lender be otherwise disadvantageous to the Swing Line Lender.
(c) Interest and Payments on Swing Line Advances. Interest on each
Swing Line Advance shall be computed in the same manner and shall be payable on
the same terms as interest on each Prime Rate Advance; provided, however, that
Swing Line Advances may be repaid without notice (and payments received after
12:00 noon eastern time will be deemed received on the next Business Day).
(d) Amendment to Section 2.15. Notwithstanding anything to the
contrary contained herein, the parties hereto hereby agree that the provisions
of this Section 2.15 may be modified or waived only by a writing signed by the
Borrower, the Administrative Agent and the Swing Line Lender and that the terms
"Swing Line Commitment" and "Available Swing Line Commitment" may only be
modified or amended by a writing signed by the Borrower, the Swing Line Lender
and the Majority Banks.
ARTICLE 3 - Conditions Precedent.
Section 3.1 Conditions Precedent to Effectiveness. The
effectiveness of this Agreement is subject to the prior fulfillment of each of
the following conditions:
(a) The Administrative Agent shall have received each of
the following, in form and substance satisfactory to the Banks:
(i) duly executed Notes;
(ii) the loan certificate of the Borrower, including
a certificate of incumbency with respect to each Authorized Signatory
of the Borrower, which shall be in substantially the form attached hereto as
Exhibit F hereto, together with appropriate attachments which shall include
without limitation, the following items: (A) a copy of the Certificate or
Articles of Incorporation of the Borrower, certified to be true, complete and
correct by the appropriate Secretary of State, (B) a true, complete and correct
copy of the By-Laws of the Borrower, as in effect on the date hereof, (C) a
true, complete and correct copy of the resolutions of the Borrower authorizing
it to execute, deliver and perform this Agreement and the other Loan Documents
to which it is party and (D) certificates of good
-31-
38
standing for the Borrower issued by the Secretary of State or similar state
official for the state of incorporation of the Borrower and for each state in
which the Borrower is qualified to do business;
(iii) receipt by the Administrative Agent and the
Banks of all appropriate fees to be paid to them by the Borrower on or prior to
the Agreement Date;
(iv) any required consents to the closing of this
Agreement or to the execution, delivery and performance of this Agreement and
the other Loan Documents, each of which shall be in form and substance
satisfactory to the Administrative Agent and the Banks;
(v) pay off letters and duly executed UCC-3
releases and other forms of satisfaction terminating any Liens (other than
Permitted Liens), if any, on the Negative Pledge Properties; and
(vi) all such other documents as the
Administrative Agent may reasonably request, certified by an appropriate
governmental official or Authorized Signatory if so requested.
(b) The Administrative Agent shall have received evidence
satisfactory to it that all material Necessary Authorizations, including all
necessary consents to the closing of this Agreement, have been obtained or made,
are in full force and effect and are not subject to any pending or, to the
knowledge of the Borrower, threatened reversal or cancellation, and the
Administrative Agent shall have received a certificate of an Authorized
Signatory so stating.
(c) The Borrower shall certify to the Administrative
Agent and the Banks that each of the representations and warranties in Article 4
hereof are true and correct in all material respects as of the Agreement Date
and that no Default then exists or is continuing.
Section 3.2 Conditions Precedent to Each Advance. The obligation
of each Bank to make each Advance, including the initial Advance hereunder, and
the Swing Line Lender to make a Swing Line Advance is subject to the fulfillment
of each of the following conditions immediately prior to or contemporaneously
with such Advance or Swing Line Advance:
(a) All of the representations and warranties of the
Borrower under this Agreement, which, in accordance with Section 4.2 hereof, are
made at and as of the time of the Advance or Swing Line Advance, as the case may
be, shall be true and correct in all
-32
39
material respects at such time, both before and after giving effect to the
application of the proceeds of the Advance or the Swing Line Advance;
(b) The incumbency of the Authorized Signatories shall be
as stated in the applicable certificate of incumbency contained in the
certificate of the Borrower delivered pursuant to Section 3.1(a) hereof or as
subsequently modified and reflected in a certificate of incumbency delivered to
the Administrative Agent and the Banks and, in the case of a Swing Line Advance,
to the Swing Line Lender;
(c) There shall not exist, on the date of the making of
the Advance or the Swing Line Advance, as the case may be, and after giving
effect thereto, a Default or an Event of Default hereunder, and the
Administrative Agent shall have received a Request for Advance so certifying;
and
(d) The Administrative Agent shall have received all such
other certificates, reports, statements, opinions of counsel or other documents
as they may reasonably request.
ARTICLE 4 - Representations and Warranties.
Section 4.1 Representations and Warranties. The Borrower hereby
agrees, represents, and warrants that:
(a) Organization; Ownership; Power; Qualification;
Capitalization. The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Georgia. Each of the
Borrower and each of its Subsidiaries has the corporate power and authority to
own its properties and to carry on its business as now being and hereafter
proposed to be conducted. Each of the Borrower and each of its Subsidiaries is
duly qualified, in good standing and authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
businesses requires such qualification or authorization.
(b) Authorization; Enforceability. The Borrower has the
corporate power and has taken all necessary corporate action to authorize it to
borrow hereunder, to execute, deliver and perform this Agreement and each of the
other Loan Documents to which it is a party in accordance with their respective
terms, and to consummate the transactions contemplated hereby and thereby. This
Agreement has been duly executed and delivered by the Borrower and is, and each
of the other Loan Documents to which the Borrower is party is, a legal, valid
and binding obligation of the Borrower enforceable in accordance with its
-33-
40
terms, subject, as to enforcement of remedies, to the following qualifications:
(i) an order of specific performance and an injunction are discretionary
remedies and, in particular, may not be available where damages are considered
an adequate remedy at law, and (ii) enforcement may be limited by bankruptcy,
insolvency, liquidation, reorganization, reconstruction and other similar laws
affecting enforcement of creditors' rights generally (insofar as any such law
relates to the bankruptcy, insolvency or similar event of the Borrower).
(c) Subsidiaries. The Borrower has no Subsidiaries except
for IRT Management Company, a Georgia corporation; VW Mall, Inc., a Georgia
corporation; IRT Capital Corporation, a Georgia corporation; IRT Alabama, Inc.,
an Alabama corporation; and IRT Partners L.P., a Georgia limited partnership.
(d) Compliance with Other Loan Documents and Contemplated
Transactions. The execution, delivery and performance, in accordance with their
respective terms, by the Borrower of this Agreement and each of the other Loan
Documents to which it is party, and the consummation of the transactions
contemplated hereby and thereby, do not and will not (i) require any consent or
approval not already obtained, (ii) violate any Applicable Law respecting the
Borrower or any of its Subsidiaries, (iii) conflict with, result in a breach of,
or constitute a default under the certificate or articles of incorporation or
by-laws, as amended, of the Borrower or any of its Subsidiaries, or under any
indenture, agreement, or other instrument to which the Borrower or any of its
Subsidiaries is a party or by which its properties may be bound, or (iv) result
in or require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by the Borrower or any of its
Subsidiaries except Permitted Liens.
(e) Business. The Borrower and its Subsidiaries are
engaged primarily in the business of acquiring, managing and selling interests
in real property.
(f) Compliance with Law. The Borrower and each of its
Subsidiaries are in compliance with all Applicable Laws, the non-compliance with
which would have a Materially Adverse Effect.
(g) Necessary Authorizations. No approval or consent of,
or filing or registration with, any federal, state or local commission or other
regulatory authority is required in connection with the execution, delivery and
performance by the Borrower of this Agreement, the Notes, and the other Loan
Documents to which it is a party. All such described action required to be taken
as a condition to the execution and delivery of this Agreement, the Notes and
other Loan Documents to which the Borrower is a party has been duly taken by all
such commissions and authorities or other Persons, as the case may be, and all
-34-
41
such action required to be taken as a condition to the initial Advance hereunder
has been or will be duly taken prior to such initial Advance.
(h) Title to Properties. The Borrower and each of its
Subsidiaries have good, marketable, and legal title to, or a valid leasehold
interest in, all of their respective material tangible properties, including,
without limitation, the Negative Pledge Properties, and assets free and clear of
all Liens, except Permitted Liens.
(i) Collective Bargaining. There are no collective
bargaining agreements between the Borrower or any of its Subsidiaries and any
trade or labor union or other employee collective bargaining agent.
(j) Litigation. There is no material action, suit,
proceeding or investigation pending against, or, to the best knowledge of the
Borrower or any of its Subsidiaries threatened against or in any other manner
relating adversely to, the Borrower or any of its Subsidiaries or any of their
properties in any court or before any arbitrator of any kind or before or by any
governmental body, and no such action, suit, proceeding or investigation (i)
calls into question the validity of this Agreement or any other Loan Document,
or (ii) could, if determined adversely to any such Person, have a Materially
Adverse Effect.
(k) Taxes. All federal, state and other tax returns of
the Borrower and each of its Subsidiaries required by law to be filed have been
duly filed and all Federal, state and other taxes, including, without
limitation, withholding taxes, assessments and other governmental charges or
levies required to be paid by the Borrower and each of its Subsidiaries or
imposed upon the Borrower or any of its Subsidiaries or any of their respective
properties, income, profits or assets, which are due and payable, have been
paid, except any such tax (x) the payment of which the Borrower or its
Subsidiary is diligently contesting in good faith by appropriate proceedings,
(y) for which adequate reserves have been provided on the books of the Borrower
and (z) as to which no Lien other than a Permitted Lien has attached and no
foreclosure, distraint, sale or similar proceedings have been commenced. The
charges, accruals and reserves on the books of the Borrower in respect of taxes
are, in the judgment of the Borrower adequate.
(l) Consolidated Financial Statements. The Borrower has
furnished or caused to be furnished to the Administrative Agent copies of the
balance sheets and statements of income for the Borrower for the most
recently-ended fiscal year for which consolidated financial statements are
available and for the quarter ended June 30, 1998, which are complete and
correct in all material respects and present fairly the financial position of
the Borrower on and as at such dates and the results of operations for the
periods then ended. The Borrower has no material liabilities, contingent or
otherwise, other than as
-35-
42
disclosed in the consolidated financial statements referred to in the preceding
sentence, and there are no material unrealized losses of the Borrower and no
material anticipated losses of the Borrower other than those which have been
previously disclosed in writing to the Banks and identified to the Banks as
such.
(m) No Adverse Change. Since December 31, 1997, there has
occurred no event which could reasonably be expected to have or which has had a
Materially Adverse Effect.
(n) ERISA. Each of the Borrower and its ERISA Affiliates
and each of their respective Plans are in substantial compliance with ERISA and
the Code and neither the Borrower nor any of its ERISA Affiliates has incurred
any accumulated funding deficiency with respect to any such Plan within the
meaning of ERISA or the Code. The Borrower and each of its ERISA Affiliates have
complied with all requirements of ERISA Sections 601 through 608 and Code
Section 4980B in all material respects. The Borrower has not incurred any
material liability to the Pension Benefit Guaranty Corporation in connection
with any Plan. The assets of each Plan which is subject to Title IV of ERISA are
sufficient to provide the benefits under such Plan, the payment of which the
Pension Benefit Guaranty Corporation would guarantee if such Plan were
terminated, and such assets are also sufficient to provide all other "benefit
liabilities" (as defined in ERISA Section 4001(a)(16)) due under the plan upon
termination. No Reportable Event has occurred and is continuing with respect to
any Plan. No Plan or trust created thereunder, or party in interest (as defined
in Section 3(14) of ERISA, or any fiduciary (as defined in Section 3(21) of
ERISA), has engaged in a "prohibited transaction" (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code) which would subject the
Borrower or any ERISA Affiliate to a material penalty or tax on "prohibited
transactions" imposed by Section 502 of ERISA or Section 4975 of the Code.
Neither the Borrower nor any of its ERISA Affiliates is a participant in or is
obligated to make any payment to a Multiemployer Plan.
(o) Patents, Trademarks, etc. The Borrower and each of
its Subsidiaries own, possess or have the right to use all licenses and rights
to all patents, trademarks, trademark rights, trade names, trade name rights,
service marks, and copyrights, and rights with respect thereto, necessary to
conduct its business in all material respects as now conducted, without known
conflict with any patent, trademark, trade name, service mark, license or
copyright of any other Person, and in each case, with respect to patents,
trademarks, trademark rights, trade names, trade name and copyrights and
licenses with respect thereto owned by the Borrower and each of its
Subsidiaries, subject to no mortgage, pledge, lien, lease, encumbrance, charge,
security interest, title retention agreement or option. All such licenses and
rights with respect to patents, trademarks, trademark rights, trade names, trade
name rights, service marks and copyrights are in full force and effect, and to
the
-36-
43
extent applicable, the Borrower and each of its Subsidiaries is in full
compliance in all material respects with all of the provisions thereof. No such
patent, trademark, trademark rights, trade names, trade name rights, service
marks, copyrights or licenses is subject to any pending or, to the best of the
Borrower's knowledge, threatened attack or revocation. Neither the Borrower nor
any of its Subsidiaries owns any registered copyrights or patents and the
Borrower's and its Subsidiaries' businesses are not subject to any license
(other than general business licenses and permits).
(p) Casualties; Taking of Properties, etc. Since the date
of the most recent financial statements provided to the Administrative Agent and
the Banks by the Borrower, neither the business nor the properties of the
Borrower or any of its Subsidiaries have been materially and adversely affected
as a result of any fire, explosion, earthquake, flood, drought, windstorm,
accident, strike or other labor disturbance, embargo, requisition or taking of
property or cancellation of contracts, permits or concessions by any domestic or
foreign government or any agency thereof, riot, activities of armed forces, or
acts of God or of any public enemy which are not subject to a claim for
reimbursement of insurance.
(q) Accuracy and Completeness of Information. None of the
financial statements or any written statements delivered to the Administrative
Agent or the Banks pursuant to this Agreement contains, as at the date of
delivery thereof, any untrue statement of material fact nor do such financial
statements, and such written statements, taken as a whole, omit to state a
material fact or any fact necessary to make the statements contained therein not
misleading in any material respect.
(r) Compliance with Regulations U, and X. Neither the
Borrower nor any of its Subsidiaries is engaged principally or as one of its
important activities in the business of extending credit for the purpose of
purchasing or carrying, and neither the Borrower nor any of its Subsidiaries
owns or presently intends to acquire, any "margin security" or "margin stock" as
defined in Regulations U, and X (12 C.F.R. Parts 221 and 224) of the Board of
Governors of the Federal Reserve System (herein called "margin stock").
Notwithstanding the foregoing, the Borrower may extend credit from time to time
to purchase shares of its common stock in connection with its incentive and
benefit plans. None of the proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin stock or for
the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry margin stock or for any other purpose which might
constitute this transaction a "purpose credit" within the meaning of said
Regulations U, and X. Neither the Borrower nor any bank acting on its behalf has
taken or will take any action which might cause this Agreement or the Notes to
violate Regulation U, or X or any other regulation of the Board of Governors of
the Federal Reserve System or to violate the Securities Exchange Act of 1934, in
each case as now in effect or as the same may hereafter
-37-
44
be in effect. If so requested by a Bank, the Borrower will furnish such Bank
with (i) a statement or statements in conformity with the requirements of
Federal Reserve Form U-1 or G-3 referred to in Regulation U of said Board of
Governors and (ii) other documents evidencing its compliance with the margin
regulations, including without limitation an opinion of counsel in form and
substance satisfactory to such Bank. Neither the making of the Loans nor the use
of proceeds thereof will violate, or be inconsistent with, the provisions of
Regulation U, or X of said Board of Governors.
(s) Solvency. The Borrower is, and after giving effect to
the transactions contemplated hereby and by the Loan Documents will be, Solvent.
(t) Broker's or Finder's Commissions. No broker's or
finder's fee or commission will be payable with respect to the issuance of the
Notes, and no other similar fees or commissions will be payable by the Borrower
for any other services rendered to the Borrower ancillary to the transactions
contemplated herein.
(u) Qualification as a REIT. The Borrower has, and after
giving effect to the transactions contemplated herein, will have conducted its
business in a manner designed to qualify (and to remain qualified) as an REIT.
(v) Name of Xxxxxxxx. The Borrower has not changed its
name within the preceding five (5) years from the Agreement Date, nor has the
Borrower transacted business under any name or tradename during the preceding
five (5) years from the Agreement Date other than under the names of its
shopping center properties.
(w) Investment Company Act. The Borrower is not required
to register under the provisions of the Investment Company Act of 1940, as
amended, and neither the entering into or performance by the Borrower of this
Agreement nor the issuance of the Notes violates any provision of such Act or
requires any consent, approval, or authorization of, or registration with, any
governmental or public body or authority pursuant to any of the provisions of
such Act.
(x) Absence of Default. The Borrower and each of its
Subsidiaries are in compliance with all of the provisions of its certificate or
articles of incorporation and by-laws and no event has occurred or failed to
occur which has not been remedied or waived, the occurrence or non-occurrence of
which constitutes, or with the passage of time or giving of notice or both would
constitute, (i) an Event of Default or (ii) a default by the Borrower or any of
its Subsidiaries under any indenture, agreement or other instrument, or any
judgment, decree or final order to which any such Person is a party or by which
any such Person or any of its properties may be bound or affected.
-38-
45
(y) Payment of Wages. The Borrower and each of its
Subsidiaries are in compliance with the Fair Labor Standards Act, as amended,
and the Borrower and each Subsidiary have paid all minimum and overtime wages
required by law to be paid to its employees.
(z) Environmental Matters. Except as set forth in
Schedule 3 attached hereto:
(i) To the best knowledge of the Borrower, each
Negative Pledge Property is free from Hazardous Materials the presence of which
would materially impair the value of Negative Pledge Property, and the Borrower
and the Negative Pledge Properties are in compliance in all material respects
with all Environmental Laws. The Borrower is not aware that any Hazardous
Materials have ever been stored, treated or disposed of on any Negative Pledge
Property in violation of any Environmental Laws.
(ii) To the best knowledge of the Borrower, there
are no surface impoundments, lagoons, piles, landfills, injection xxxxx,
underground storage areas or other man-made facilities on any Negative Pledge
Property which have accommodated Hazardous Materials, and neither the Borrower
nor, to the best of Borrower's knowledge, any third party has dumped,
discharged, buried or otherwise placed Hazardous Materials on any Negative
Pledge Property including the soil, surface water and ground water thereof.
(iii) To the best knowledge of the Borrower, there
are no buried, partially buried or above-ground tanks, storage vessels, drums or
containers located on any Negative Pledge Property in violation of any
Environmental Laws. To the best knowledge of the Borrower, there is no evidence
of leachings, spillage or accidental release of Hazardous Materials onto or into
any Negative Pledge Property.
(iv) All necessary environmental permits or
licenses required of the Borrower related to any Negative Pledge Property of the
improvements thereon have been obtained and are currently in full force and
effect.
(v) The Borrower has not received and is not
aware of any warning notice, notice of violation, administrative complaint,
judicial complaint or other formal or informal notice alleging that conditions
on any Negative Pledge Property are in violation of any of the Environmental
Laws.
(vi) The Borrower has not received, and is not
aware of, and to the best of the Borrower's knowledge, no previous owner of any
Negative Pledge Property has
-39-
46
received, any summons, citation, notice, letter or other communication, written
or oral, from any federal or state environmental agency or other public agency
concerning intentional or unintentional actions or omissions on the part of the
Borrower or any previous owner of any Negative Pledge Property which resulted or
allegedly resulted in the release of Hazardous Materials onto or into the soil,
surface water or ground water of any Negative Pledge Property.
(vii) To the best of the Borrower's knowledge,
there has been no treatment, storage, disposal, discharge or other type of
release of Hazardous Materials on land adjacent or near to any Negative Pledge
Property which has contaminated any Negative Pledge Property or the surface or
ground water flowing to any Negative Pledge Property.
(aa) Year 2000 Compliance. The Borrower (i) has initiated
a review and assessment of all areas within its and each of its Subsidiaries'
business and operations (including those affected by suppliers and vendors) that
could be adversely affected by the "Year 2000 Problem" (that is, the risk that
computer applications used by the Borrower or any of its Subsidiaries (or its
suppliers and vendors) may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and any date after
December 31, 1999), (ii) is developing a plan and timeline for addressing the
Year 2000 Problem on a timely basis, and (iii) will implement that plan in
accordance with that timetable. The Borrower reasonably believes that all
computer applications (including those of its suppliers and vendors) that are
material to its or any of its Subsidiaries' business and operations will on a
timely basis be able to perform properly date-sensitive functions for all dates
before and after January 1, 2000 (that is, be "Year 2000 compliant"), except to
the extent that a failure to do so could not reasonably be expected to have a
Materially Adverse Effect.
Section 4.2 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement shall be deemed to be
made, and shall be true and correct, at and as of the Agreement Date and the
date of each Advance hereunder, except to the extent previously fulfilled in
accordance with the terms hereof and to the extent subsequently inapplicable.
All representations and warranties made under this Agreement shall survive, and
not be waived by, the execution hereof by the Banks and the Administrative
Agent, any investigation or inquiry by any Bank or the Administrative Agent, or
the making of any Advance under this Agreement.
-40-
47
ARTICLE 5 - General Covenants.
So long as any of the Obligations is outstanding and unpaid or the
Borrower shall have the right to borrow hereunder (whether or not the conditions
to borrowing have been or can be fulfilled), and unless the Majority Banks shall
otherwise consent in writing:
Section 5.1 Preservation of Existence and Similar Matters. The
Borrower will and will cause each of its Subsidiaries to:
(a) preserve and maintain its existence, rights,
franchises, licenses and privileges in the state of its incorporation, and each
state wherein the Negative Pledge Property lies or shall lie,
(b) maintain the corporate power and authority to own its
properties and to carry on its business as now being and hereafter proposed to
be conducted, and
(c) qualify and remain qualified, in good standing, and
authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification or
authorization, including without limitation, each jurisdiction wherein the
Negative Pledge Property lies or shall lie.
The Borrower and each of its Subsidiaries shall at all times comply
with all of the provisions of its certificate or articles of incorporation and
bylaws or partnership agreement, as the case may be.
Section 5.2 Business: Compliance with Applicable Law. The
Borrower will and will cause each of its Subsidiaries to (a) engage primarily in
the business of acquiring, managing and selling interests in real property, and
(b) comply with the requirements of Applicable Law, including, without
limitation, Environmental Laws.
Section 5.3 Maintenance of Properties. The Borrower will and
will cause each of its Subsidiaries to maintain or cause to be maintained in the
ordinary course of business in good repair, working order and condition
(reasonable wear and tear excepted) all of its Property (whether owned or held
under lease), and from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements, additions, betterments and
improvements thereto. The Borrower will and will cause each of its Subsidiaries
to maintain good, legal and marketable title to, or a valid leasehold interest
in, all of the Negative Pledge Property except to the extent sold or otherwise
disposed of in accordance herewith.
-41-
48
Section 5.4 Accounting Methods and Financial Records. The
Borrower will maintain a system of accounting established and administered in
accordance with generally accepted accounting principles consistently applied,
keep adequate records and books of account in which complete entries will be
made in accordance with such accounting principles consistently applied and
reflecting all transactions required to be reflected by such accounting
principles and keep accurate and complete records of each Borrower's respective
properties and assets. The Borrower shall maintain a fiscal year ending on
December 31.
Section 5.5 Insurance. The Borrower will and will cause each of
its Subsidiaries to maintain the following policies of insurance:
(a) Insurance against loss or damage to all improvements
located on each Negative Pledge Property by fire and any of the risks covered by
insurance of the type now known as "fire and extended coverage," in an amount
not less than the full replacement cost of such improvements, and including
coverage for debris removal (exclusive of the cost of excavations, foundations,
and footings below the lowest basement floor), and with not more than $10,000
deductible from the loss payable for any casualty other than windstorms, for
which the deductible may change from time to time in accordance with customary
insurance industry adjustments for such a casualty (which policy of insurance
shall contain the "Replacement Cost Endorsement");
(b) If requested by the Administrative Agent, business
interruption insurance and/or loss of "rental value" insurance in such amounts
as are satisfactory to the Administrative Agent;
(c) Comprehensive public liability insurance (including
coverage for elevators and escalators, if any, on each Negative Pledge Property
and completed operations coverage for two years after construction of the
improvements on such Negative Pledge Property has been completed) on an
"occurrence basis" against claims for "personal injury" including, without
limitation, bodily injury, death or property damage occurring on, in or about
each Negative Pledge Property and the adjoining streets, sidewalks and
passageways, such insurance to afford immediate minimum protection to a limit of
not less than that which is reasonable and customary for similar projects with
respect to personal injury or death to any one or more persons or damage to each
Negative Pledge Property;
(d) Boiler and machinery insurance covering pressure
vessels, air tanks, boilers, machinery, pressure piping, heating, air
conditioning, elevator and escalator equipment, provided such Negative Pledge
Property contains equipment of such nature, and insurance against loss of
occupancy or use arising from breakdown of any of the items
-42-
49
referred to in this subparagraph, in such amounts which are reasonable and
customary for similar projects;
(e) Insurance against loss or damage to personal property
by fire and other risks covered by insurance of the type now known as "fire and
extended coverage"; and
(f) Such other insurance, in such amounts, as may from
time to time be reasonably required by the Administrative Agent against the same
or other hazards.
Section 5.6 Payment of Taxes and Claims. The Borrower will and
will cause each of its Subsidiaries to pay and discharge all taxes, including,
without limitation, withholding taxes, assessments and governmental charges or
levies required to be paid by it or imposed upon it or its income or profits or
upon any Property prior to the date on which penalties attach thereto, and all
lawful claims for labor, materials and supplies which, if unpaid, might become a
Lien or charge upon any of the Negative Pledge Property; except that no such
tax, assessment, charge, levy or claim need be paid which is being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves shall have been set aside on the appropriate books, but only so long as
such tax, assessment, charge, levy or claim does not become a Lien or charge
other than a Permitted Lien and no foreclosure, distraint, sale or similar
proceedings have been commenced. The Borrower will and will cause each of its
Subsidiaries to timely file all returns required by Federal, state or local tax
authorities. The Borrower will maintain adequate charges, accruals and reserves
on its books in respect of taxes.
Section 5.7 Visits and Inspections. The Borrower will permit
representatives of the Administrative Agent and each Bank to (a) visit and
inspect the Negative Pledge Properties or the Borrower's principal place of
business at all reasonable times, (b) inspect and make extracts from and copies
of their respective books and records, and (c) discuss with their respective
principal officers its businesses, assets, liabilities, financial positions,
results of operations, and business prospects.
Section 5.8 Payment of Indebtedness; Loans. Subject to any
provisions herein, referred to herein, or in any other Loan Document regarding
subordination, the Borrower will and will cause each of its Subsidiaries to pay
any and all of its Indebtedness when and as it becomes due, other than amounts
diligently disputed in good faith.
Section 5.9 Use of Proceeds. The Borrower will use the proceeds
of the Loans and the Swing Line Loans solely for (a) property acquisitions, (b)
rehabilitation of existing retail centers, (c) general business purposes and (d)
new property development.
-43-
50
Section 5.10 ERISA. The Borrower shall (a) notify the Banks as
soon as practicable of any Reportable Event and of any additional act or
condition arising in connection with any such Plan which the Borrower believes
might constitute grounds for the termination thereof by the Pension Benefit
Guaranty Corporation or for the appointment by the appropriate United States
District Court of a trustee to administer such Plan; and (b) furnish to the
Banks, promptly upon the Banks' request therefor, such additional information
concerning any such Plan as may be reasonably requested by the Banks.
Section 5.11 Indemnity. The Borrower will indemnify and hold
harmless each Bank, the Swing Line Lender and the Administrative Agent, and each
of their respective employees, representatives, officers and directors from and
against any and all claims, liabilities, losses, damages, actions, attorneys'
fees and demands by any party, (a) resulting from any breach by the Borrower of
any representation or warranty made hereunder, or (b) arising out of (i) the
Commitment and the Swing Line Commitment or the making or administration of the
Loans and the Swing Line Loans, or (ii) allegations of any participation by the
Banks, the Swing Line Lender or the Administrative Agent, or any of them, in the
affairs of the Borrower or allegations that the Banks, the Swing Line Lender or
the Administrative Agent, or any of them, has any joint liability of the
Borrower for any reason whatsoever; unless, in any case referred to above, the
Person seeking indemnification hereunder is determined in such case to have
acted or failed to act with gross negligence or willful misconduct by a
non-appealable judicial order. The provisions of this Section shall survive the
termination of this Agreement.
Section 5.12 Payment of Wages. The Borrower shall and shall cause
each of its Subsidiaries to at all times use its best efforts to comply with the
requirements of the Fair Labor Standards Act, as amended, including, without
limitation, the provisions of such Act relating to the payment of minimum and
overtime wages as the same may become due from time to time.
Section 5.13 Accuracy and Completeness of Information. All
information, reports, prospectuses, notices and other papers and data relating
to the Borrower and furnished by or on behalf of the Borrower, to the Banks or
the Administrative Agent, or any of them, shall be, at the time furnished,
complete and correct in all material respects to the extent necessary to give
the Banks and the Administrative Agent true and accurate knowledge of the
subject matter.
Section 5.14 Compliance with Environmental Laws. The Borrower
shall and shall cause each of its Subsidiaries to at all times comply in all
material respects with all applicable Environmental Laws relating to each
Negative Pledge Property and the Use of the Negative Pledge Property. The
current Use and proposed Use of each Negative Pledge
-44-
51
Property and the improvements thereon do not and will not violate any
Environmental Laws, such that said violation would have a Materially Adverse
Effect. The Borrower will not use or permit any other party to use any Hazardous
Materials on any Negative Pledge Property except such materials as are
incidental to the Borrower's or such party's normal course of business,
maintenance and repairs. The Borrower agrees, upon the reasonable request of the
Administrative Agent, to provide to the Administrative Agent from time to time
(at the Borrower's expense) a current environmental assessment of any Negative
Pledge Property within a reasonable time after such request; provided, however,
that unless the Administrative Agent reasonably believes that a problem exists
with respect to any Hazardous Materials or if a phase I report contains a
recommendation for additional reports, the Borrower shall have no obligation
hereunder to provide more than a phase I report for any Negative Pledge Property
more frequently than once every three (3) years. Such assessment shall be in a
form satisfactory to the Administrative Agent and from an environmental engineer
or consultant satisfactory to the Administrative Agent and addressed to the
Banks. The Borrower also agrees to permit the Administrative Agent, its agents,
contractors, employees and representatives to enter upon and inspect each
Negative Pledge Property at any reasonable time upon two (2) days' prior notice
for the purpose of conducting environmental investigations and audits (including
taking physical samples). The Borrower agrees to provide the Administrative
Agent, its agents, contractors, employees and representatives with access to and
copies of any and all data and documents relating to or dealing with any
Hazardous Materials used, generated, manufactured, stored or dispensed of on,
under or about any Negative Pledge Property within five (5) days of the request
therefor.
Section 5.15 Indemnity in Regard to Environmental Matters. The
Borrower shall indemnify, defend and hold harmless each Bank, the Administrative
Agent and their respective employees, representatives, officers and directors
from and against any and all claims, demands, suits, losses, damages,
assessments, fines, penalties, costs or other expenses (including reasonable
attorneys' fees and court costs), arising from or in any way related to actual
or threatened damage to the environment, agency costs of investigation, personal
injury or death, or property damage, due to or resulting from (i) a release or
alleged release of Hazardous Materials arising from the Borrower's or any of its
Subsidiary's Use of any Negative Pledge Property or the improvements thereon;
(ii) the existence of Hazardous Materials at, under, within or on any Negative
Pledge Property or the improvements located thereon; (iii) the violation of any
Environmental Laws relating to any Negative Pledge Property or the Use of any
Negative Pledge Property; (iv) any investigation, inquiry, order, hearing,
action or other proceeding by or before any governmental agency which has
resulted or is alleged to have resulted directly or indirectly from the
violation of any Environmental Laws relating to any Negative Pledge Property or
the Use of any Negative Pledge Property; (v) the breach of any representation or
warranty set forth in Section 4.1(z) of this Agreement or the failure of any
such representation or warranty to remain true and correct; or (vi) any
-45-
52
failure by the Borrower to perform any covenant set forth in Section 5.14 above.
The Borrower further agrees that its indemnity obligations shall include, but
are not limited to, liability for damages resulting from the personal injury or
death of an employee of the Borrower or any of its Subsidiaries, regardless of
whether the Borrower or any of its Subsidiaries has paid the employee under the
workers' compensation laws of any state or other similar federal or state
legislation for the protection of employees. The term "property damage" as used
in this Section 5.15 includes, but is not limited to, damage to any real or
personal property or Borrower, any Bank, the Administrative Agent or any third
party. The provisions of this Section 5.15 shall survive the termination of this
Agreement, but shall be applicable only for the period during which the Borrower
or any of its Subsidiaries was an owner or operator of such properties.
Section 5.16 Further Assurances. The Borrower will promptly cure,
or cause to be cured, defects in the creation and issuance of the Notes and the
execution and delivery of the Loan Documents (including this Agreement),
resulting from any act or failure to act by the Borrower or any employee or
officer thereof. The Borrower at its expense will promptly execute and deliver
to the Administrative Agent and the Banks, or cause to be executed and delivered
to the Administrative Agent and the Banks, all such other and further documents,
agreements, and instruments in compliance with or accomplishment of the
covenants and agreements of the Borrower in the Loan Documents, including this
Agreement, or to correct any omissions in the Loan Documents, or more fully to
state the obligations set out herein or in any of the Loan Documents, or to
obtain any consents, all as may be necessary or appropriate in connection
therewith as may be reasonably requested.
Section 5.17 Xxxxxx's Claims. The Borrower hereby indemnifies and
agrees to hold the Administrative Agent and each of the Banks harmless from and
against any and all losses, liabilities, damages, costs and expenses which may
be suffered or incurred by the Administrative Agent and each of the Banks in
respect of any claim, suit, action or cause of action now or hereafter asserted
by a broker or any Person acting in a similar capacity arising from or in
connection with the execution and delivery of this Agreement or any other Loan
Document or the consummation of the transactions contemplated herein or therein
and arising out of any act or agreement of the Borrower. The Banks and the
Administrative Agent hereby acknowledge and agree that they have not retained
any broker or any Person acting in a similar capacity in connection with this
Agreement.
Section 5.18 Covenants Regarding Formation of Subsidiaries and
Acquisitions. Contemporaneously with (a) any merger or consolidation by a
Subsidiary of the Borrower or (b) the formation of any new Subsidiary of the
Borrower which results, in each case, in such Subsidiary owning any Negative
Pledge Properties, the Borrower will, and will cause such Subsidiaries, as
appropriate, to (i) provide to the Administrative Agent an executed
-46-
53
Subsidiary Guaranty for such Subsidiary, in substantially the form of Exhibit C
attached hereto, which shall constitute a Loan Document for purposes of this
Agreement, as well as a loan certificate for such Subsidiary, substantially in
the form of Exhibit G attached hereto, together with appropriate attachments
(which shall include articles of incorporation, bylaws and incumbency
certificates), and (ii) all other documentation, including one or more opinions
of counsel with respect to formation of such Subsidiary and enforceability of
any Loan Documents except by such Subsidiary, reasonably satisfactory to the
Administrative Agent which in its reasonable opinion is appropriate with respect
to such merger or consolidation and formation of such Subsidiary. Any document,
agreement or instrument executed or issued pursuant to this Section 5.18 shall
be a "Loan Document" for purposes of this Agreement.
Section 5.19 Year 2000 Compliance. The Borrower will promptly
notify the Administrative Agent in the event the Borrower is made aware of or
determines that any computer application (including those of its suppliers and
vendors) that is material to the business and operation of the Borrower or of
any of the Borrower's Subsidiaries will not be Year 2000 compliant on a timely
basis, except to the extent that such failure could not reasonably be expected
to have a Materially Adverse Effect.
ARTICLE 6 - Information Covenants.
So long as any of the Obligations is outstanding and unpaid or the
Borrower has a right to borrow hereunder (whether or not the conditions to
borrowing have been or can be fulfilled) and unless the Majority Banks shall
otherwise consent in writing, the Borrower will furnish or cause to be furnished
to each Bank and to the Administrative Agent at their respective offices:
Section 6.1 Quarterly Operations Statements. Within forty-five
(45) days after the end of the first, second and third quarters in each fiscal
year of the Borrower, and within ninety (90) days after the end of each fiscal
year of the Borrower, (a) a quarterly operations statement with respect to each
of the Negative Pledge Properties, which quarterly operations statement shall
contain the project name and location and cash flow analysis, and (b) quarterly
rent rolls with respect to each of the Negative Pledge Properties (except for
apartment properties). All quarterly operations statements for a period also
shall include a comparison to the budget for such period and shall be certified
by Borrower.
Section 6.2 Quarterly Consolidated Financial Statements and
Information. Within forty-five (45) days after the last day of the first, second
and third quarters in each fiscal year of the Borrower, Xxxxxxxx's Form 10-Q as
filed with the Securities and Exchange Commission which shall contain the
consolidated balance sheet of the Borrower as at the end
-47-
54
of such quarter, and the related consolidated statement of earnings and related
consolidated statement of shareholders' equity and related consolidated
statement of cash flows of the Borrower for such quarter and for the elapsed
portion of the year ended with the last day of such quarter, which shall be
certified by the chief financial officer of the Borrower, to be, in his or her
opinion, complete and correct in all material respects and to present fairly, in
accordance with generally accepted accounting principles consistently applied,
the financial position of the Borrower, as at the end of such period and the
results of operations for such period, and for the elapsed portion of the year
ended with the last day of such period, subject only to normal year-end
adjustments.
Section 6.3 Annual Consolidated Financial Statements and
Information; Certificate of No Default. Within ninety (90) days after the end of
each fiscal year of the Borrower, Borrower's Form 10-K as filed with the
Securities and Exchange Commission which shall contain the audited consolidated
balance sheets of the Borrower, as at the end of such fiscal year, and the
related audited consolidated statements of earnings and the related audited
consolidated statements of shareholders' equity and the related audited
consolidated statements of cash flows of the Borrower for such fiscal year,
which consolidated financial statements shall set forth in comparative form such
figures as at the end of and for the previous fiscal year, and shall be
accompanied by an opinion of independent certified public accountants of
recognized standing satisfactory to the Administrative Agent and the Banks,
together with a statement of such accountants certifying that during their
examination of the Borrower such accountants have observed no Default or Event
of Default, including, without limitation, any Default under Sections 7.6, 7.7,
7.8, 7.9, 7.10, 7.11, 7.12, 7.13, 7.14, 7.18 and 7.19 hereof.
Section 6.4 Performance Certificates. At the time the
consolidated financial statements are furnished pursuant to Sections 6.2 and
6.3, a certificate of an Authorized Signatory of the Borrower in form and
substance satisfactory to the Majority Banks:
(a) Setting forth as at the end of such quarter or
calendar year, as the case may be, the arithmetical calculations required to
establish whether or not the Borrower was in compliance with the requirements of
Sections 7.6, 7.7, 7.8, 7.9, 7.10, 7.11, 7.12, 7.13, 7.14, 7.18 and 7.19 hereof;
(b) Stating that, to the best of his or her knowledge, no
Default or Event of Default has occurred as at the end of such quarter or year,
as the case may be, or, if a Default or an Event of Default has occurred,
disclosing each such Default or Event of Default and its nature, when it
occurred, whether it is continuing, and the steps being taken by the Borrower
with respect to such Default or Event of Default;
-48-
55
(c) Setting forth (i) each Negative Pledge Property and
the Person owning each Negative Pledge Property, (ii) each Unencumbered Real
Estate Asset and the Person owning each Unencumbered Real Estate Asset and (iii)
each asset of any Consolidated Entity or Unconsolidated Entity which is not a
Subsidiary Guarantor and the Person owning such asset; and
(d) Setting forth the name of each trustee (or similar
person) for all Indebtedness for Money Borrowed which is publicly issued and not
subordinated to the Obligations.
Section 6.5 Copies of Other Reports.
(a) Promptly upon receipt thereof, copies of all reports,
if any, submitted to the Borrower by its independent public accountants
regarding the Borrower, including, without limitation, any management report
prepared in connection with the annual audit referred to in Section 6.3 hereof.
(b) Promptly after the preparation of the same, copies of
all material reports or financial information filed with any governmental
agency, department, bureau, division or other governmental authority or
regulatory body (including, without limitation, the Securities and Exchange
Commission) or evidencing facts or containing information which could have a
Materially Adverse Effect.
(c) From time to time and promptly upon each request,
such data, certificates, reports, statements, documents, or further information
regarding the business, assets, liabilities, financial position, projections,
results of operations of the Borrower or any of its Subsidiaries as the
Administrative Agent, upon request of the Majority Banks, may reasonably
request.
(d) Notice of any change in the Senior Management of the
Borrower.
(e) Promptly after the same shall be submitted to the
board of directors of the Borrower, copies of Directors' Books annually prepared
by the Borrower.
Section 6.6 Notice of Litigation and Other Matters. Prompt notice
of the following events as to which the Borrower has received notice or
otherwise become aware thereof:
(a) The commencement of all material proceedings and
investigations by or before any governmental body and all actions and
proceedings in any court or before any arbitrator against or, to the extent
known to the Borrower, in any other way relating
-49-
56
adversely and directly to the Borrower, its Subsidiaries, or any of their
respective properties, assets, or businesses which, if determined adversely to
the Borrower or such Subsidiary is reasonably likely to result in an Event of
Default or have a Materially Adverse Effect on the Borrower, or which calls into
question the validity of this Agreement or any other Loan Document;
(b) Any material adverse change with respect to the
business, assets, liabilities, financial position, or results of operations of
the Borrower, other than changes in the ordinary course of business which have
not had and are not likely to have a Materially Adverse Effect;
(c) Any Default or default by the Borrower or any of its
Subsidiaries under any agreement (other than this Agreement) to which the
Borrower or any of its Subsidiaries is party or by which any of their respective
properties is bound which is likely to have a Materially Adverse Effect or the
occurrence of any other event which could have a Materially Adverse Effect,
giving in each case the details thereof and specifying the action proposed to be
taken with respect thereto; and
(d) The occurrence of any Reportable Event or a
"prohibited transaction" (as such term is defined in Section 406 of ERISA or
Section 4975 of the Code) with respect to any Plan of the Borrower or any of its
ERISA Affiliates or the institution or threatened institution by the Pension
Benefit Guaranty Corporation of proceedings under ERISA to terminate or to
partially terminate any such Plan or the commencement or threatened commencement
of any litigation regarding any such Plan or naming it or the Trustee of any
such Plan with respect to such Plan.
(e) The occurrence of any event subsequent to the
Agreement Date which, if such event had occurred prior to the Agreement Date,
would have constituted an exception to the representation and warranty in
Section 4.1(n) of this Agreement.
Section 6.7 Matters Affecting the Negative Pledge Property.
(a) All leases (and amendments thereto), easements, liens
and contracts of sale (whether or not recorded of public record) hereafter
entered into affecting the Negative Pledge Property as requested by the Bank.
(b) With respect to any apartment property now or hereafter
constituting the Negative Pledge Property, Borrower shall provide a yearly
schedule of lease terms which shall include the tenant's name(s) and the
expiration date of all leases.
-50-
57
Section 6.8 Notices from the Borrower Regarding Environmental
Matters. The Borrower shall promptly, after obtaining knowledge thereof, advise
the Bank in writing of (a) any and all enforcement, cleanup, remedial, removal
or other governmental or regulatory actions instituted or threatened, orally or
in writing, pursuant to any of the Environmental Laws affecting the Negative
Pledge Property or any obligation of the Borrower hereunder including, without
limitation, any notice of inspection, potential liability under CERCLA,
abatement or noncompliance; (b) all claims made or threatened in writing by any
third party against the Borrower, affecting the Negative Pledge Property for
damages, contribution, cost recovery compensation, loss or injury resulting from
any Hazardous Materials or asserting or alleging a violation of or liability
under any of the Environmental Laws or under any common law theory of liability
involving environmental or health safety matters; (c) the Borrower's discovery
of any occurrence or condition on the Negative Pledge Property or any real
property adjoining or in the vicinity of the Negative Pledge Property which
could subject Borrower or the Negative Pledge Property to a claim under any of
the Environmental Laws; (d) any restrictions imposed or threatened on ownership,
occupancy, transferability or Use of the Negative Pledge Property under any of
the Environmental Laws; or (e) any remedial action taken by the Borrower with
respect to any Hazardous Materials affecting the Negative Pledge Property. The
Borrower shall deliver to the Administrative Agent any documentation or records
in connection with any of the foregoing matters which the Administrative Agent
may reasonably request and which are susceptible of being obtained by the
Borrower without undue cost or expense.
ARTICLE 7 - Negative Covenants.
So long as any of the Obligations is outstanding and unpaid or the
Borrower has a right to borrow hereunder (whether or not the conditions to
borrowing have been or can be fulfilled) and unless the Majority Banks shall
otherwise give their prior consent in writing:
Section 7.1 Indebtedness of the Borrower. The Borrower shall not
create, assume, incur or otherwise become or remain obligated in respect of, or
permit to be outstanding, and the Borrower shall not permit any of its
Subsidiaries to create, assume, incur or otherwise become or remain, obligated
in respect of, or permit to be outstanding, any Indebtedness except:
(a) Indebtedness under this Agreement, the Notes and the
other Loan Documents;
(b) Trade accounts payable, accrued expenses, customer
advance payments, contractual obligations to suppliers, customers, tenants and
contractors incurred in
-51-
58
the ordinary course of business, and other current liabilities (other than
Indebtedness for Money Borrowed) incurred in the ordinary course of business;
(c) Indebtedness secured by Xxxxxxxxx Xxxxx;
(d) Indebtedness existing as of the Agreement Date as
described on Schedule 4 attached hereto;
(e) so long as no Default exists hereunder, or would be
caused thereby, additional (i) Nonrecourse Indebtedness (which can be secured)
and (ii) other Indebtedness (which cannot be secured), to the maximum amount of
Indebtedness which the Borrower and its Subsidiaries could incur on such date
and remain in compliance with all covenants set forth herein;
(f) Indebtedness permitted under Section 7.5 hereof; and
(g) any other Indebtedness on terms and conditions
satisfactory to the Administrative Agent with prior written consent of the
Majority Banks.
Section 7.2 Limitation on Liens. The Borrower shall not create,
assume, incur or permit to exist or to be created, assumed, incurred or
permitted to exist, and shall not permit any of its Subsidiaries to create,
assume, incur or permit to exist or to be created, assumed or permitted to
exist, directly or indirectly, any Lien on any of its properties or assets,
whether now owned or hereafter acquired, except for Permitted Liens, and shall
not covenant or agree and shall not permit any of its Subsidiaries to covenant
and agree, with any third party that it will not create, assume, incur or permit
to exist or to be created, assumed, incurred or permitted to exist any Lien on
any of the Negative Pledge Property.
Section 7.3 Amendment and Waiver. The Borrower shall not and
shall not permit any of its Subsidiaries to, without the prior written consent
of the Majority Banks, enter into any material amendment of, or agree to or
accept any material waiver of its by-laws or articles of incorporation, which
would adversely affect the rights of the Administrative Agent and the Banks
under this Agreement or any other Loan Document.
Section 7.4 Liquidation; Disposition or Acquisition of Assets.
The Borrower shall not and shall not permit any of its Subsidiaries to (a)
liquidate or dissolve itself (or suffer any liquidation or dissolution,
including, without limitation, the announcement or adoption of any plan of
dissolution) or otherwise wind up, or (b) enter into any merger or consolidation
unless such dissolution, merger or consolidation is contingent upon cancellation
of the Commitment and payment in full of the Obligations; provided, however,
that, without the
-52-
59
prior written consent of the Majority Banks, the Borrower and its Subsidiaries
shall be permitted to enter into mergers and consolidations so long as (A) no
Default exists hereunder or would be caused thereby (B) the Borrower provides
written evidence in the form of a pro forma compliance certificate that all
covenants hereunder will continue to be met on a pro forma basis after giving
effect thereto, (C) such merger or consolidation is with a Person whose business
is substantially consistent with the business of the Borrower or the Subsidiary,
as the case may be, being merged or consolidated, (D) such merger or
consolidation does not result in a change of business of the Borrower or the
Subsidiary, as the case may be, (E) the Borrower shall not have been advised by
any rating agency then rating the Borrower's Indebtedness or investment bank
advising the Borrower in connection with such merger or consolidation that such
merger or consolidation will result in a downward adjustment to its investment
grade rating, (F) in the case of a merger or consolidation involving the
Borrower or a Subsidiary Guarantor, the Borrower or such Subsidiary Guarantor,
as the case may be, shall be the surviving entity, and (G) if such merger or
consolidation results in a new Subsidiary of the Borrower, such new Subsidiary
shall provide to the Administrative Agent a Guaranty if required pursuant to
Section 5.18 hereof.
Section 7.5 Limitation on Guaranties. The Borrower shall not and
shall not permit any of its Subsidiaries to at any time guaranty, or assume, be
obligated with respect to, or permit to be outstanding any Guaranty of, any
obligation of any other Person in excess of $100,000 in the aggregate
outstanding at any time without the prior written consent of the Majority Banks.
Section 7.6 Dividends. Except as hereinafter provided, in no
event shall the Borrower pay or declare any dividend in respect to any of its
capital stock (including, without limitation, any preferred stock) in excess of
an amount which is equal to ninety-five percent (95%) of its Funds From
Operations. The foregoing shall not be deemed to prohibit the Borrower from
paying a special dividend which the Board of Directors shall determine to be
necessary in order for the Borrower to avoid liability for federal income taxes
on account of gain from the sale of properties.
Section 7.7 Borrower Net Worth. The Borrower will at all times
maintain a Net Worth equal to or greater than the sum of (a) $232,255,821 plus
(b) fifty percent (50%) of the Net Proceeds of each public or private offering
of the common stock and the preferred stock of the Borrower subsequent to the
Agreement Date.
Section 7.8 Indebtedness Ratio. The Borrower will at all times
maintain a ratio of Indebtedness for Money Borrowed to Net Worth of not greater
than 1.50 to 1.
-53-
60
Section 7.9 Interest Coverage. The Borrower will at all times
maintain a ratio of EBITDA to the sum of (a) Interest on Indebtedness for Money
Borrowed and (b) dividends paid on any preferred stock during such period of no
less than 2.00 to 1.
Section 7.10 Collateral Value. The Borrower will not at any time
permit the aggregate amount of the outstanding Loans and the Swing Line Loans to
exceed sixty-five percent (65%) of the Value of Negative Pledge Property.
Section 7.11 Total Liabilities to Total Assets Ratio. The Borrower
shall not permit at any time Total Liabilities to exceed sixty percent (60%) of
Total Assets.
Section 7.12 Net Income. The Borrower shall not (a) have a net
operating loss (before deduction for any real estate valuation loss or reserve)
for any fiscal quarter which is equal to or greater than $1,000,000, (b) have a
net operating loss for any two (2) consecutive fiscal quarters or (c) have a net
operating loss for any fiscal year.
Section 7.13 Debt Service Coverage Ratio. The Borrower shall for
each fiscal year maintain a Debt Service Coverage Ratio of not less than 1.25 to
1.
Section 7.14 Value of Unencumbered Real Estate Assets. The Value
of Unencumbered Real Estate Assets shall not, at any time, be less than one
hundred fifty percent (150%) of all Unsecured Senior Debt.
Section 7.15 Affiliate Transactions. Except for agreements which
are direct cost or direct revenue pass through in nature, the Borrower shall
not, and shall not permit any of its Subsidiaries to, at any time engage in any
transaction with an Affiliate, nor make an assignment or other transfer of any
of its assets to any Affiliate, on terms less advantageous than would be the
case if such transaction had been effected with a non-Affiliate.
Section 7.16 ERISA Liabilities. The Borrower shall not, and shall
not permit any ERISA Affiliate to, fail to meet all of the applicable minimum
funding requirements of ERISA and the Code, without regard to any waivers
thereof, and, to the extent that the assets of any of its Plans would be less
than an amount sufficient to provide all accrued benefits payable under such
Plans, shall make the maximum deductible contributions allowable under the Code.
The Borrower shall not, and shall not permit any ERISA Affiliate to, become a
participant in any Multiemployer Plan.
Section 7.17 Business of the Borrower. Neither of the Borrower nor
any Subsidiary of the Borrower shall undertake, or be permitted to undertake,
and shall not permit any of their Subsidiaries to undertake or be permitted to
undertake, any business other than the
-54-
61
acquisition, development, ownership, management, operation and leasing of
neighborhood anchored retail properties and ancillary businesses specifically
related thereto, except as provided in Section 7.19 hereof.
Section 7.18 Total Secured Liabilities to Total Assets. The
Borrower shall not at any time permit Total Secured Liabilities to exceed forty
percent (40%) of the Total Assets.
Section 7.19 Limitation on Nonconforming Investments. The Borrower
and any of its direct or indirect Subsidiaries may invest in the following
nonconforming assets or property ("Nonconforming Investments") without the prior
written approval of the Administrative Agent, Swing Line Lender or the Banks
provided that at no time shall the aggregate amount of such investment in
Nonconforming Investments exceed fifteen percent (15%) of Total Assets:
(a) unimproved land;
(b) other non-income-producing property holdings,
including, without limitation, assets or properties under development (but,
excluding any properties or portions thereof owned by the Borrower or any of its
Subsidiaries which are wholly or partially converted by such Person into a
non-income-producing holding for a period of no longer than six (6) consecutive
calendar months);
(c) income-producing properties which are not considered
to be within the Borrower's primary course of business as set forth in Section
7.17 (other than those set forth on Schedule 5 attached hereto which will be
deemed conforming assets);
(d) cash and cash equivalents (other than stock holdings)
which are not invested in one or more of the following: (i) money market mutual
funds, (ii) marketable, direct obligations of the United States of America, its
agencies and instrumentalities maturing within 365 days of the date of purchase,
or (iii) commercial paper issued by corporations, each of which shall have a
combined net worth of at least $100 million and each of which conducts a
substantial part of its business in the United States of America, maturing
within 270 days from the date of the original issue thereof and rated "A-2" or
better by S&P. Subsections (i) through (iii) shall be deemed conforming assets;
(e) stock holdings (excluding holdings in Subsidiaries
and Affiliates engaged in the Borrower's primary course of business which are
hereby deemed conforming);
(f) mortgages;
-55-
62
(g) joint ventures and partnerships (excluding those
investments in Affiliates engaged in the Borrower's primary course of business
which are hereby deemed conforming); and
(h) investments in any Consolidated Entities and
Unconsolidated Entities which is not a guarantor of the Loans (provided that the
foregoing shall be exclusive of investments in IRT Management Company, to the
extent of its investments in any Subsidiary Guarantor, which investments are
deemed to be conforming).
ARTICLE 8 - Default.
Section 8.1 Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule, or regulation
of any governmental or non-governmental body:
(a) Any representation or warranty made under this
Agreement shall prove incorrect or misleading in any material respect when made
or deemed to have been made;
(b) The Borrower shall default in the payment of any
principal, interest or fees payable hereunder, under the Notes or under the
Swing Line Note, or any of them, or under the other Loan Documents and such
default shall continue for a period of ten (10) days;
(c) The Borrower or any of its Subsidiaries shall default
in the performance or observance of any agreement or covenant contained in
Article 6 or Article 7 hereof and the Borrower shall have knowledge thereof or
shall have received notice from the Administrative Agent with respect thereto,
and, with respect to Sections 7.3, 7.10 or 7.15 only, thirty (30) days have
elapsed from the date of such notice;
(d) The Borrower or any of its Subsidiaries shall default
in the performance or observance of any other agreement or covenant contained in
this Agreement not specifically referred to elsewhere in this Section 8.1, and
such Default shall not be cured to the Majority Banks' satisfaction within a
period of thirty (30) days from the date the Borrower becomes aware of the
occurrence of such default;
(e) There shall occur any Default in the performance or
observance of any agreement or covenant or breach of any representation or
warranty contained in any of the
-56-
63
Loan Documents (other than this Agreement or as otherwise provided in Section
8.1 of this Agreement), which shall not be cured to the Majority Banks'
satisfaction within the applicable cure period, if any, provided for in such
Loan Document or thirty (30) days from the date the Borrower becomes aware of
the breach or Default if no cure period is provided in such Loan Document;
(f) Any Person (together with Affiliates of such Person)
shall have, directly or indirectly, a beneficial ownership of more than twenty
percent (20%) of the voting equity interests or voting securities or the power
to direct or cause the direction of the management and policies of the Borrower;
(g) There shall be entered a decree or order for relief
in respect of the Borrower or any of its Subsidiaries, under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy law or other similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator, or similar
official of the Borrower or any of its Subsidiaries, or of any substantial part
of its properties, or ordering the winding-up or liquidation of the affairs of
the Borrower or any of its Subsidiaries, or an involuntary petition shall be
filed against the Borrower or any of its Subsidiaries and a temporary stay
entered, and (i) such petition and stay shall not be diligently contested, or
(ii) any such petition and stay shall continue undismissed for a period of
thirty (30) consecutive days;
(h) The Borrower or any of its Subsidiaries shall file a
petition, answer, or consent seeking relief under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other applicable federal
or state bankruptcy law or other similar law, or the Borrower or any of its
Subsidiaries shall consent to the institution of proceedings thereunder or to
the filing of any such petition or to the appointment or taking of possession of
a receiver, liquidator, assignee, trustee, custodian, sequestrator, or other
similar official of the Borrower or any of its Subsidiaries, or of any
substantial part of their respective properties, or the Borrower or any of its
Subsidiaries shall fail generally to pay their respective debts as they become
due, or the Borrower or any of its Subsidiaries shall take any corporate or
partnership action to authorize any such action;
(i) A final judgment (the payment of which is not covered
by insurance) shall be entered by any court against any of the Borrower and its
Affiliates for the payment of money which exceeds $100,000, or a warrant of
attachment or execution or similar process shall be issued or levied against
property of any of the Borrower and its Affiliates which, together with all
other such property of any of the Borrower and its Affiliates subject to other
such process, exceeds in value $100,000 in the aggregate, and if, within thirty
(30) days after the entry, issue or levy thereof, such judgment, warrant or
process shall not have
-57-
64
been paid or discharged or stayed pending appeal, or if, after the expiration of
any such stay, such judgment, warrant or process shall not have been paid or
discharged;
(j) There shall be at any time any "accumulated funding
deficiency," as defined in ERISA or in Section 412 of the Code, with respect to
any Plan maintained by any of the Borrower and its Affiliates, or to which the
Borrower or any of its Affiliates has any liabilities, or any trust created
thereunder; or a trustee shall be appointed by a United States District Court to
administer any such Plan; or the Pension Benefit Guaranty Corporation shall
institute proceedings to terminate any such Plan; or any of the Borrower and its
Affiliates shall incur any liability to the Pension Benefit Guaranty Corporation
in connection with the termination of any such Plan; or any Plan or trust
created under any Plan of any of the Borrower and its Affiliates shall engage in
a non-exempt "prohibited transaction" (as such term is defined in Section 406 of
ERISA or Section 4975 of the Code) which would subject any such Plan, any trust
created thereunder, any trustee or administrator thereof, or any party dealing
with any such Plan or trust to the tax or penalty on "prohibited transactions"
imposed by Section 502 of ERISA or Section 4975 of the Code; or any of the
Borrower and its Affiliates shall enter into or become obligated to contribute
to a Multiemployer Plan;
(k) There shall occur any default under any indenture,
agreement or instrument (i) evidencing Indebtedness of the Borrower or any of
its Affiliates (other than Indebtedness which is Nonrecourse and as to which no
personal liability has been asserted against the Borrower or such Affiliate) in
an aggregate principal amount exceeding $5,000,000 which default shall remain
uncured for a period of thirty (30) days or (ii) between the Borrower or any of
its Affiliates and any Bank;
(l) Any violation of applicable environmental law shall
occur with respect to the properties of any of the Borrower and its Affiliates,
which has a reasonable expectation of having a Materially Adverse Effect;
(m) Any material violation of applicable environmental
law shall occur with respect to any parcel constituting the Negative Pledge
Property; or
(n) All or any portion of any Loan Document shall at any
time and for any reason be declared by a court of competent jurisdiction in a
suit with respect to such Loan Document to be null and void, or a proceeding
shall be commenced by any Governmental Authority having jurisdiction over the
Borrower involving a legitimate dispute or by the Borrower seeking to establish
the invalidity or unenforceability thereof (exclusive of questions of
interpretation of any provision thereof), or the Borrower shall deny that it has
-58-
65
any liability or obligation for the payment of principal or interest purported
to be created under any Loan Document;
(o) The Borrower shall at any time cease to be qualified
as a REIT for any purpose under the Code;
(p) The Borrower shall fail to maintain Senior Management
as in effect on the Agreement Date, or such other Persons as Senior Management
as have equivalent character, experience and knowledge of the business of the
Borrower as may be reasonably acceptable to the Administrative Agent and the
Majority Banks.
(q) There shall occur any event which has a Materially
Adverse Effect.
Section 8.2 Remedies. If an Event of Default shall have occurred
and shall be continuing:
(a) With the exception of an Event of Default, specified
in Sections 8.1(g) or (h), the Administrative Agent shall at the request, or may
with the consent, of the Majority Banks, by notice to the Borrower (i) declare
the Notes and the Swing Line Note, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon the Notes and the Swing Line Note, all such interest and
all such amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower and/or (ii) terminate the Commitment and
the Swing Line Commitment.
(b) Upon the occurrence of an Event of Default under
Sections 8.1(g) and (h) hereof, the Commitment and the Swing Line Commitment
shall automatically terminate and such principal, interest (including without
limitation, interest which would have accrued but for the commencement of a case
or proceeding under the federal bankruptcy laws) and other amounts payable under
this Agreement, the Notes or the Swing Line Note shall thereupon and
concurrently therewith become due and payable, all without any action by the
Administrative Agent, or the Banks or the holders of the Notes and Swing Line
Note, and all without presentment, demand, protest or other notice of any kind,
all of which are expressly waived, anything in this Agreement, in the Notes or
in the Swing Line Note to the contrary notwithstanding.
(c) The Administrative Agent, with the concurrence of the
Majority Banks, shall exercise all of the post-default rights granted to it and
to them under the Loan Documents or under Applicable Law.
-59-
66
(d) The rights and remedies of the Administrative Agent,
the Banks and the Swing Line Lender hereunder shall be cumulative, and not
exclusive.
ARTICLE 9 - The Administrative Agent.
Section 9.1 Appointment and Authorization. Each Bank hereby
irrevocably appoints and authorizes, and xxxxxx agrees that it will require any
transferee of any of its interest in its Loans and in its Notes irrevocably to
appoint and authorize, the Administrative Agent to take such actions as its
agent on its behalf and to exercise such powers hereunder as are delegated by
the terms hereof, together with such powers as are reasonably incidental
thereto. Neither the Administrative Agent nor any of its directors, officers,
employees, or agents shall be liable to any Bank (or any transferee thereof) for
any action taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful misconduct.
Section 9.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under the Loan Documents by or through agents or
attorneys selected by it using reasonable care and shall be entitled to advice
of counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible to any Bank for the negligence or misconduct of
any agents or attorneys selected by it with reasonable care.
Section 9.3 Interest Holders. The Administrative Agent may treat
each Bank, or the Person designated in the last notice filed with the
Administrative Agent under this Section 9.3, as the holder of all of the
interests of such Bank in its Loans and in its Notes until written notice of
transfer, signed by such Bank (or the Person designated in the last notice filed
with the Administrative Agent) and by the Person designated in such written
notice of transfer, in form and substance satisfactory to the Administrative
Agent, shall have been filed with the Administrative Agent.
Section 9.4 Consultation with Counsel. The Administrative Agent
may consult with legal counsel selected by it and shall not be liable to any
Bank (or transferee thereof) for any action taken or suffered by it in good
faith in reliance thereon.
Section 9.5 Documents. The Administrative Agent shall be under no
duty to examine, inquire into, or pass upon the validity, effectiveness, or
genuineness of this Agreement, any Note, or any instrument, document, or
communication furnished pursuant hereto or in connection herewith, and the
Administrative Agent shall be entitled to assume
-60-
67
that they are valid, effective, and genuine, have been signed or sent by the
proper parties, and are what they purport to be.
Section 9.6 Administrative Agent and Affiliates. The
Administrative Agent and its affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with the Borrower or any Affiliates
of, or Persons doing business with, the Borrower, as if it were not affiliated
with the Administrative Agent and without any obligation to account to any Bank
(or any transferee thereof) therefor.
Section 9.7 Responsibility of the Administrative Agent. The
duties and obligations of the Administrative Agent under this Agreement are only
those expressly set forth in this Agreement. The Administrative Agent shall be
entitled to assume that no Default or Event of Default has occurred and is
continuing unless it has actual knowledge, or has been notified by the Borrower,
of such fact, or has been notified by a Bank that such Bank considers that a
Default or an Event of Default has occurred and is continuing, and such Bank
shall specify in detail the nature thereof in writing. The Administrative Agent
shall not be liable hereunder to any Bank (or any transferee thereof) for any
action taken or omitted to be taken except for its own gross negligence or
willful misconduct, and agrees that with respect to any actions which are taken
by (or not taken by) the Administrative Agent solely in its capacity as
Administrative Agent in its sole discretion, that the Administrative Agent will
act with the same standard of care that it applies to similar loans held for its
own account. The Administrative Agent shall provide each Bank with copies of
such documents received from the Borrower as such Bank may reasonably request.
Section 9.8 Action by Administrative Agent.
(a) Except for action requiring the approval of the
Majority Banks (or the Banks, as applicable), the Administrative Agent shall be
entitled to use its discretion with respect to exercising or refraining from
exercising any rights which may be vested in it by, and with respect to taking
or refraining from taking any action or actions which it may be able to take
under or in respect of, this Agreement, unless the Administrative Agent shall
have been instructed by the Majority Banks (or Banks, as applicable) to exercise
or refrain from exercising such rights or to take or refrain from taking such
action, provided that the Administrative Agent shall not exercise any rights
under Section 8.2(a) of this Agreement without the request of the Majority Banks
(or Banks, as applicable). The Administrative Agent shall incur no liability to
any Bank (or any transferee thereof) under or in respect of this Agreement with
respect to anything which it may do or refrain from doing in the reasonable
exercise of its judgment or which may seem to it to be necessary or desirable in
the circumstances, except for its gross negligence or willful misconduct.
-61-
68
(b) The Administrative Agent shall not be liable to the
Banks or to any Bank in acting or refraining from acting under this Agreement in
accordance with the instructions of the Majority Banks (or all Banks, as
applicable), and any action taken or failure to act pursuant to such
instructions shall be binding on all Banks.
Section 9.9 Notice of Default or Event of Default. In the event
that the Administrative Agent or any Bank shall acquire actual knowledge, or
shall have been notified in writing, of any Default or Event of Default, the
Administrative Agent or such Bank shall promptly notify the Banks and the
Administrative Agent, and the Administrative Agent shall take such action and
assert such rights under this Agreement as the Majority Banks (or all Banks, as
applicable) shall request in writing, and the Administrative Agent shall not be
subject to any liability by reason of its acting pursuant to any such request.
If the Majority Banks (or all Banks, as applicable) shall fail to request the
Administrative Agent to take action or to assert rights under this Agreement in
respect of any Default or Event of Default within ten (10) days (or shorter
period as set forth in such notice) after their receipt of the notice of any
Default or Event of Default from the Administrative Agent, or shall request
inconsistent action with respect to such Default or Event of Default, the
Administrative Agent may, but shall not be required to, take such action and
assert such rights (other than rights under Article 8 hereof) as it deems in its
discretion to be advisable for the protection of the Banks, except that, if the
Majority Banks (or all Banks, as applicable) have instructed the Administrative
Agent not to take such action or assert such right, in no event shall the
Administrative Agent act contrary to such instructions.
Section 9.10 Responsibility Disclaimed. The Administrative Agent
shall be under no liability or responsibility whatsoever as Administrative
Agent:
(a) To the Borrower or any other Person or entity as a
consequence of any failure or delay in performance by or any breach by, any Bank
or Banks of any of its or their obligations under this Agreement;
(b) To any Bank or Banks, as a consequence of any failure
or delay in performance by, or any breach by, the Borrower or any other obligor
of any of its obligations under this Agreement or the Notes or any other Loan
Document; or
(c) To any Bank or Banks for any statements,
representations, or warranties in this Agreement, or any other document
contemplated by this Agreement or any information provided pursuant to this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement, or for the validity, effectiveness, enforceability, or sufficiency of
this Agreement, the Notes, any other Loan Document, or any other document
contemplated by this Agreement.
-62-
69
Section 9.11 Indemnification. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower) pro rata
according to their respective Commitment Ratios, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including fees and expenses of experts, agents, consultants,
and counsel), or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement, any other Loan Document, or any
other document contemplated by this Agreement or any action taken or omitted by
the Administrative Agent under this Agreement, any other Loan Document, or any
other document contemplated by this Agreement, except that no Bank shall be
liable to the Administrative Agent for 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 Administrative Agent. The provisions of this Section 9.11
shall survive the termination of this Agreement.
Section 9.12 Credit Decision. Each Bank represents and warrants to
each other and to the Administrative Agent that:
(a) In making its decision to enter into this Agreement
and to make Advances it has independently taken whatever steps it considers
necessary to evaluate the financial condition and affairs of the Borrower and
that it has made an independent credit judgment, and that it has not relied upon
information provided by the Administrative Agent; and
(b) So long as any portion of the Loans remains
outstanding, it will continue to make its own independent evaluation of the
financial condition and affairs of the Borrower.
Section 9.13 Successor Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent (which shall be
any Bank or a commercial bank organized under the laws of the United States of
America or any political subdivision thereof which has a combined capital and
reserves in excess of $250,000,000) as provided below, the Administrative Agent
may resign at any time by giving written notice thereof to the Banks and the
Borrower and may be removed at any time for cause by the Majority Banks. Upon
any such resignation or removal, the Majority Banks shall have the right to
appoint a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Majority Banks, and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent's
giving of notice of resignation or the Majority Xxxxx' removal of the retiring
Administrative Agent, then the retiring
-63-
70
Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent which shall be any Bank or a commercial bank organized
under the laws of the United States of America or any political subdivision
thereof which has combined capital and reserves in excess of $250,000,000. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges,
duties, and obligations of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Section 9.13 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Administrative Agent.
ARTICLE 10 - Change in Circumstances Affecting LIBOR Advances.
Section 10.1 LIBOR Basis Determination Inadequate or Unfair.
Notwithstanding anything contained herein which may be construed to the
contrary, if with respect to any proposed LIBOR Advance for any Interest Period,
the Administrative Agent determines after consultation with the Banks that
deposits in dollars (in the applicable amount) are not being offered to each of
the Banks in the relevant market for such Interest Period, the Administrative
Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Administrative Agent notifies the Borrower that the
circumstances giving rise to such situation no longer exist, the obligations of
the Banks to make such type of LIBOR Advances shall be suspended.
Section 10.2 Illegality. If any applicable law, rule or
regulation, or any change therein, or any interpretation or change in
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency, shall make it unlawful or impossible for any Bank to make, maintain or
fund its LIBOR Advances, such Bank shall so notify the Administrative Agent, and
the Administrative Agent shall forthwith notify the Borrower and the other
Banks. Before giving any notice to the Administrative Agent pursuant to this
Section, such Bank shall designate a different lending office if such
designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. Upon receipt
of such notice, notwithstanding anything contained in Article 2 hereof, the
Borrower shall repay in full the then outstanding principal amount of each
affected LIBOR Advance of such Bank, together with accrued interest thereon,
either (a) on the last day of the then current Interest Period applicable to
such LIBOR Advance if such Bank may lawfully continue to maintain
-64-
71
and fund such LIBOR Advance to such day or (b) immediately if such Bank may not
lawfully continue to fund and maintain such LIBOR Advance to such day.
Concurrently with repaying each affected LIBOR Advance of such Bank,
notwithstanding anything contained in Article 2 hereof, the Borrower shall
borrow a Prime Rate Advance from such Bank, and such Bank shall make such
Advance in an amount such that the outstanding principal amount of the Note
shall equal the outstanding principal amount of the Note immediately prior to
such repayment.
Section 10.3 Increased Costs.
(a) If any applicable law, rule or regulation, or any
change therein, or any interpretation or change in interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof or compliance
by any Bank with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency shall subject any
Bank to any tax, duty or other charge with respect to its obligation to make
LIBOR Advances, or shall change the basis of taxation of payments to any Bank of
the principal of or interest on its LIBOR Advances or in respect of any other
amounts due under this Agreement, in respect of its LIBOR Advances or its
obligation to make LIBOR Advances (except for changes in the rate of tax on the
overall net income of such Bank) imposed by the jurisdiction in which such
Bank's principal executive office is located and the result of any of the
foregoing is to increase the cost to such Bank of making or maintaining any such
LIBOR Advances, or to reduce the amount of any sum received or receivable by
such Bank under this Agreement or under the Note with respect thereto, then, on
the earlier of a date within ten (10) days after demand by such Bank or the
Maturity Date, the Borrower agrees to pay to such Bank such additional amount or
amounts as will compensate such Bank for such increased costs. Each Bank will
promptly notify the Borrower of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Bank to compensation pursuant to
this Section 10.3 and will designate a different lending office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole judgment of such Bank, be otherwise disadvantageous to
such Bank.
(b) A certificate of any Bank claiming compensation under
this Section 10.3 and setting forth the additional amount or amounts to be paid
to it hereunder and calculations therefor shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods. If any Bank demands compensation under this
Section 10.3, the Borrower may at any time, upon at least five (5) Business
Days' prior notice to such Bank, prepay in full the then outstanding affected
LIBOR Advances of such Bank, together with accrued interest thereon to the date
of prepayment. Concurrently with prepaying such LIBOR Advances the Borrower
shall borrow
-65-
72
a Prime Rate Advance, or a LIBOR Advance not so affected, from such Bank, and
such Bank shall make such Advance in an amount such that the outstanding
principal amount of the Note shall equal the outstanding principal amount of the
Note immediately prior to such prepayment.
Section 10.4 Effect On Other Advances. If notice has been given
pursuant to Section 10.1, 10.2 or 10.3 suspending the obligation of any Bank to
make any LIBOR Advance, or requiring LIBOR Advances to be repaid or prepaid,
then, unless and until such Bank notifies the Borrower that the circumstances
giving rise to such repayment no longer apply, all LIBOR Advances which would
otherwise be made by such Bank shall, at the option of the Borrower, be made
instead as Prime Rate Advances.
Section 10.5 Claims for Increased Costs and Taxes. In the event
that any Bank shall decline to make LIBOR Advances pursuant to Section 10.1 or
10.2 hereof or shall have notified the Borrower that it is entitled to claim
compensation pursuant to Sections 2.9(d), 2.12 or 10.3 hereof (each such Bank
being an "Affected Bank"), the Borrower may designate a replacement bank (a
"Replacement Bank"), which Replacement Bank shall be reasonably acceptable to
the Administrative Agent, to assume the Commitment and the obligations of any
such Affected Bank hereunder, and to purchase the outstanding Note of such
Affected Bank and such Affected Bank's rights hereunder and with respect
thereto, without recourse upon, or warranty by, or expense to, such Affected
Bank, for a purchase price equal to the outstanding principal amount of the
Loans of such Affected Bank plus all interest accrued and unpaid thereon and all
other amounts owing to such Affected Bank hereunder, including without
limitation, any amount which would be payable to such Affected Bank pursuant to
Section 2.10, and upon such assumption and purchase by the Replacement Bank,
such Replacement Bank shall be deemed to be a "Bank" for purposes of this
Agreement and such Affected Bank shall cease to be a "Bank" for purposes of this
Agreement and shall no longer have any obligations or rights hereunder (other
than any obligations or rights which according to this Agreement shall survive
the termination of this Agreement). The Borrower hereby covenants and agrees
that upon the effectiveness of any assignment hereunder, it will promptly
provide to the Administrative Agent for the benefit of the relevant Banks duly
executed replacement promissory notes in the amount of each Bank's Commitment in
substantially the form of Exhibit A attached hereto. The Borrower shall, on the
effective date of such assignment, pay to the Administrative Agent the
assignment fee referred to in Section 11.5(b)(iv)(C).
-66-
73
ARTICLE 11 - Miscellaneous.
Section 11.1 Notices.
(a) All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been given three (3)
days after deposit in the mail, designated as certified mail, return receipt
requested, post-prepaid, or one (1) Business Day after being entrusted to a
reputable commercial overnight delivery service, or telecopy addressed to the
party to which such notice is directed at its address determined as provided in
this Section 11.1 All notices and other communications under this Agreement
shall be given to the parties hereto at the following addresses:
(i) If to the Borrower, to it at:
IRT PROPERTY COMPANY
000 Xxxxxxxx Xxxxxxx X.X.
Suite 1400
Atlanta, Georgia 30339
Attn: Xxxx X. Xxxxxx
Xxxxxxxx No.: (000) 000-0000
(ii) If to the Administrative Agent, to it at:
NationsBank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
Suite 600
Atlanta, Georgia 30308
Attn: X. Xxxxx Xxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxxxxxx, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Sixteenth Floor
Atlanta, Georgia 30303
Attn: Xxxxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
-67-
74
(iii) If to the Banks or the Swing Line Lender, to
them at:
NationsBank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
Suite 600
Atlanta, Georgia 30308
Attn: X. Xxxxx Xxxxxx
Telecopy No.: (000) 000-0000
AmSouth Bank
0000 Xxxxx Xxxxxx Xxxxx
0xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxxxx X. XxXxxxx
Commercial Real Estate Department
Telecopy No.: (000) 000-0000
or
P.O. Box 11007
Birmingham, Alabama 35288
Attn: Xxxxxxxxx X. XxXxxxx
Commercial Real Estate Department
Telecopy No.: (000) 000-0000
First Union National Bank
First Union Center
(NCO166)
Charlotte, North Carolina 28288
Attn: Xxxx Xxxxxxxx
Telecopy No.: (704) 383-6205
Copies shall be provided to persons other than parties hereto only in the case
of notices under Article 8 hereof.
(b) Any party hereto may change the address to which notices
shall be directed under this Section 11.1 by giving ten (10) days' written
notice of such change to the other parties. The Administrative Agent may rely on
the authority of any document delivered to it by any Bank and shall have no
obligation to make a determination as to authenticity or authorization with
respect to any Bank.
-68-
75
Section 11.2 Expenses. The Borrower agrees to promptly pay:
(a) All reasonable costs and out-of-pocket expenses of
the Administrative Agent and the Banks on the Agreement Date in connection with
the syndication, preparation, negotiation, execution, and delivery of this
Agreement and the other Loan Documents executed on the Agreement Date and
related due diligence, the transactions contemplated hereunder and thereunder,
and the making of the initial Advance hereunder, including, but not limited to,
the reasonable fees and disbursements of counsel for the Banks and the
Administrative Agent;
(b) All reasonable costs and out-of-pocket expenses of
the Administrative Agent in connection with the preparation, negotiation of any
waiver, amendment, or consent by the Banks relating to this Agreement or the
other Loan Documents whether or not executed, including, but not limited to, the
reasonable fees and disbursements of counsel for the Banks and the
Administrative Agent;
(c) All reasonable costs and out-of-pocket costs and
expenses of collection if default is made in the payment of the Notes, which in
each case shall include reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent and the Banks, and the reasonable fees and
out-of-pocket expenses of counsel and of any experts, agents, or consultants of
the Administrative Agent and the Banks;
(d) All reasonable costs and expenses incurred by the
Administrative Agent pursuant to the provisions of Section 5.14 of this
Agreement;
(e) All taxes, assessments, general or special, and other
charges levied on, or assessed, placed or made against the Note or the
Obligations; and
(f) All reasonable out-of-pocket costs and expenses of
any restructuring, refinancing or "work out" of the transactions contemplated by
this Agreement, and of obtaining performance under this Agreement or the other
Loan Documents, and all reasonable out-of-pocket costs and expenses of
collection if default is made in the payment of the Note, which in each case
shall include reasonable fees and out-of-pocket expenses of special counsel for
the Administrative Agent and the Banks, and the reasonable fees and
out-of-pocket expenses of counsel and of any experts, agents, or consultants of
the Administrative Agent or any Bank.
Section 11.3 Waivers. The rights and remedies of the Administrative
Agent and the Banks under this Agreement and the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies which they would
otherwise have. No failure or delay by
-69-
76
the Administrative Agent, the Majority Banks, or the Banks in exercising any
right shall operate as a waiver of such right. The Administrative Agent and the
Banks expressly reserve the right to require strict compliance with the terms of
this Agreement in connection with any funding of a request for an Advance. In
the event the Banks decide to fund a request for an Advance at a time when the
Borrower is not in strict compliance with the terms of this Agreement, such
decision by the Banks shall not be deemed to constitute an undertaking by the
Banks to fund any further requests for Advances or preclude the Banks from
exercising any rights available to the Banks under the Loan Documents or at law
or equity. Any waiver or indulgence granted by the Banks or by the Majority
Banks shall not constitute a modification of this Agreement, except to the
extent expressly provided in such waiver or indulgence, or constitute a course
of dealing by the Banks at variance with the terms of the Agreement such as to
require further notice by the Banks of the Banks' intent to require strict
adherence to the terms of the Agreement in the future.
Section 11.4 Set-Off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
after the Maturity Date (whether by acceleration or otherwise), the Banks, the
Swing Line Lender and any subsequent holder or holders of the Notes and the
Swing Line Note are hereby authorized by the Borrower at any time or from time
to time, without notice to the Borrower or to any other Person, any such notice
being hereby expressly waived, to set-off and to appropriate and apply any and
all deposits (general or special, time or demand, including, but not limited to,
Indebtedness evidenced by certificates of deposit, in each case whether matured
or unmatured) and any other Indebtedness at any time held or owing by the Banks,
the Swing Line Lender or such holder to or for the credit or the account of the
Borrower, against and on account of the obligations and liabilities of the
Borrower, to the Banks, the Swing Line Lender or such holder under this
Agreement, the Notes, the Swing Line Note, and any other Loan Document,
including, but not limited to, all claims of any nature or description arising
out of or connected with this Agreement, the Notes, the Swing Line Note, or any
other Loan Document, irrespective of whether or not (a) the Banks, the Swing
Line Lender or the holders of the Notes and the Swing Line Note shall have made
any demand hereunder or (b) the Banks and the Swing Line Lender shall have
declared the principal of and interest on the Loans, Notes and the Swing Line
Note and other amounts due hereunder to be due and payable as permitted by
Section 8.2 hereof and although said obligations and liabilities, or any of
them, shall be contingent or unmatured. Any sums obtained by any Bank, the Swing
Line Lender or by any subsequent holder of the Notes and the Swing Line Note
shall be subject to the application of payments provisions of Article 2 hereof.
Upon direction by the Administrative Agent, with the consent of the Majority
Banks, after the Maturity Date (whether by reason of acceleration or otherwise)
each Bank and the Swing Line Lender holding deposits of the Borrower shall
exercise its set-off rights as so directed.
-70-
77
Section 11.5 Assignment.
(a) The Borrower may not assign or transfer any of its
rights or obligations hereunder or under the Notes.
(b) Each of the Banks may at any time enter into
assignment agreements or participations with respect to its interest hereunder
and under the other Loan Documents with one or more other banks or other
Persons, provided, that
(i) each Bank shall at all times maintain a
Commitment of not less than $10,000,000 (or lesser amount if a
reduction of the overall Commitment results in such Bank's
Commitment being less than $10,000,000);
(ii) all assignments (other than assignments
described in clause (iii) hereof) shall be in minimum
principal amounts of $10,000,000;
(iii) each Bank may sell assignments and
participations of up to one hundred percent (100%) of its
interest hereunder to (A) one or more wholly-owned affiliates
of such Bank, or (B) any Federal Reserve Bank as collateral
security pursuant to Regulation A of the Board of Governors of
the Federal Reserve System and any Operating Circular issued
by such Federal Reserve Bank (no such assignment shall relieve
such Bank from its obligations hereunder); and
(iv) all assignments and participations hereunder
(other than assignments and participations described in clause
(iii) hereof) shall be subject to the following additional
terms and conditions:
(A) No such assignment or participation
shall be sold without the consent of the
Administrative Agent, and prior to the occurrence of
a Default, the Borrower, which consent shall not be
unreasonably withheld.
(B) Any Person purchasing a
participation or an assignment of the Loans from any
Bank shall be required to represent and warrant that
its purchase shall not constitute a "prohibited
transaction" (as defined in Section 4.1(n) hereof).
(C) The Borrower, the Banks, and the
Administrative Agent agree that assignments permitted
hereunder (including the assignment of
-71-
78
any Advance or portion thereof) may be made with all
voting rights, and shall be made pursuant to an
Assignment and Assumption Agreement. An
administrative fee of $2,500 shall be payable to the
Administrative Agent by the assigning Bank at the
time of any assignment hereunder.
(D) No participation agreement shall
confer any rights under this Agreement or any other
Loan Document to any purchaser thereof, or relieve
any issuing Bank from any of its obligations under
this Agreement, and all actions hereunder shall be
conducted as if no such participation had been
granted; provided, however, that any participation
agreement may confer on the participant the right to
approve or disapprove (within the same time periods
required of Banks hereunder) decreases in the
interest rate, increases or forgiveness of the
principal amount of the Loans participated in by such
participant, decreases in fees, and extensions of the
Maturity Date or other principal payment date for the
Loans.
(E) Each Bank agrees to provide the
Administrative Agent and the Borrower with prompt
written notice of any issuance of participations or
assignments of its interests hereunder.
(F) No assignment, participation or
other transfer of any rights hereunder or under the
Notes shall be effected that would result in any
interest requiring registration under the Securities
Act of 1933, as amended, or qualification under any
state securities law.
(G) No such assignment may be made to
any bank or other financial institution (x) with
respect to which a receiver or conservator
(including, without limitation, the Federal Deposit
Insurance Corporation, the Resolution Trust
Corporation or the Office of Thrift Supervision) has
been appointed or (y) that has failed to meet any of
the capital requirements of its primary regulator or
insurer.
(H) If applicable, each Bank shall, and
shall cause each of its assignees to provide to the
Administrative Agent on or prior to the Agreement
Date or effective date of any assignment, as the case
may be, an appropriate Internal Revenue Service form
as required by Applicable Law supporting such Bank's
position that no withholding by the Borrower or the
Administrative Agent for U.S. income tax payable
-72-
79
by the Bank in respect of amounts received by it
hereunder is required. For purposes of this
Agreement, an appropriate Internal Revenue Service
form shall mean Form 1001 (Ownership Exemption or
Reduced Rate Certificate of the U.S. Department of
Treasury), or Form 4224 (Exemption from Withholding
of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States),
or any successor or related forms adopted by the
relevant U.S. taxing authorities.
(c) Except specifically set forth in Section 11.5(b)
hereof, nothing in this Agreement or the Notes, expressed or implied, is
intended to or shall confer on any Person other than the respective parties
hereto and thereto and their successors and assignees permitted hereunder and
thereunder any benefit or any legal or equitable right, remedy or other claim
under this Agreement or the Notes.
(d) In the case of any participation, all amounts payable
by the Borrower under the Loan Documents shall be calculated and made in the
manner and to the parties hereto as if no such participation had been sold.
(e) The Borrower hereby covenants and agrees that upon
the effectiveness of any assignment hereunder, it will promptly provide to the
Administrative Agent for the benefit of the relevant Banks duly executed
replacement promissory notes in the amount of each Bank's Commitment in
substantially the form of Exhibit A attached hereto.
(f) No assignment, participation or other transfer of any
rights under the Swing Line Note shall be effected without the consent of both
the Swing Line Lender and the Borrower, which consent shall not be unreasonably
withheld.
Section 11.6 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
such separate counterparts shall together constitute but one and the same
instrument.
Section 11.7 Governing Law. This Agreement and the Notes shall be
construed in accordance with and governed by the internal laws of the State of
Georgia.
Section 11.8 Severability. Any provision of this Agreement which
is prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof in that jurisdiction or affecting the validity or enforceability of such
provision in any other jurisdiction.
-73-
80
Section 11.9 Headings. Headings used in this Agreement are for
convenience only and shall not be used in connection with the interpretation of
any provision hereof.
Section 11.10 Interest.
(a) In no event shall the amount of interest due or
payable hereunder or under the Notes and the Swing Line Note exceed the maximum
rate of interest allowed by Applicable Law, and in the event any such payment is
inadvertently made by the Borrower or is inadvertently received by any Bank or
the Swing Line Lender, then such excess sum shall be returned forthwith to the
Borrower; provided, however, that if an Event of Default then exists, such
amounts shall be credited to principal of the Obligations. It is the express
intent hereof that the Borrower not pay and the Banks and Swing Line Lender not
receive, directly or indirectly in any manner whatsoever, interest in excess of
that which may legally be paid by the Borrower under Applicable Law.
(b) Notwithstanding the use by the Banks of the Prime
Rate, the LIBOR Rate and the Federal Funds Rate as reference rates for the
determination of interest on the Loans, the Banks shall be under no obligation
to obtain funds from any particular source in order to charge interest to the
Borrower at interest rates tied to such reference rates.
Section 11.11 Entire Agreement. Except as otherwise expressly
provided herein, this Agreement, the Notes, and the Loan Documents to which the
Borrower is a party embody the entire Agreement and understanding among the
parties hereto and thereto and supersede all prior agreements, understandings,
and conversations relating to the subject matter hereof and thereof.
Section 11.12 Amendment and Waiver. Neither this Agreement nor any
term hereof may be amended orally, nor may any provision hereof be waived orally
but only by an instrument in writing signed by the Majority Banks and, in the
case of an amendment, also by the Borrower, except that in the event of (a) any
increase in the amount of such Bank's Commitment, (b) any decrease (other than
pro rata) in the amount of the Commitment, (c) any change in the timing of, or
reduction of the amount of, payments of principal, interest, and fees due
hereunder or any amendment to the definition of "Applicable Margin," "Interest
Rate Basis" or "Maturity Date," (d) any release or impairment of any collateral
or any guaranty issued in favor of the Administrative Agent and the Banks with
respect to the Agreement and the Loans, (e) any waiver of any Event of Default
due to the failure by the Borrower to pay any sum due hereunder, or (f) any
amendment of this Section 11.12 or of the definition of Majority Banks, any
amendment or waiver may be made only by an instrument in writing signed by each
of the Banks and, in the case of an amendment, also by the Borrower. Any
amendment to any provision hereunder governing the rights, obligations,
-74-
81
or liabilities of the Administrative Agent in its capacity as such, may be made
only by an instrument in writing signed by such affected Person and by each of
the Banks. Any amendment to any provision hereunder governing the rights,
obligations, or liabilities of the Swing Line Lender may be made only by an
instrument in writing signed by the Swing Line Lender and the Borrower.
Section 11.13 Other Relationships. No relationship created
hereunder or under any other Loan Document shall in any way affect the ability
of the Administrative Agent and each Bank to enter into or maintain business
relationships with the Borrower, or any of its Affiliates, beyond the
relationships specifically contemplated by this Agreement and the other Loan
Documents.
Section 11.14 Bank Wiring Instructions. On or prior to the
Agreement Date, each Bank shall provide in writing to the Administrative Agent
appropriate information for wire transfer of funds to be paid to such Bank
hereunder, together with the names and sample signatures for an authorized
signatory for such Bank. Unless the Administrative Agent receives notice
(delivered in accordance with Section 11.1 hereof) from a Bank hereunder of any
change with respect to wire transfers or authorization, the Administrative Agent
shall be entitled to assume that there have been no changes with respect
thereto.
Section 11.15 Confidentiality. The Banks shall hold all non-public,
proprietary or confidential information (which has been identified as such by
the Borrower) obtained pursuant to the requirements of this Agreement in
accordance with their customary procedures for handling confidential information
of this nature and in accordance with safe and sound banking practices;
provided, however, the Banks may make disclosure of any such information to such
of their examiners, affiliates, outside auditors, counsel, consultants,
appraisers and other professional advisors as may be reasonably necessary in
connection with this Agreement or as reasonably required by any proposed
syndicate member or any proposed transferee or participant in connection with
the contemplated transfer of any Note or participation therein or as required or
requested by any governmental authority or representative thereof or in
connection with the enforcement hereof or of any Loan Document or related
document or pursuant to legal process or with respect to any litigation between
or among the Borrower and any of the Banks; provided, however, that, as a
condition to receipt of any such information, each such affiliate, auditor,
counsel, consultant, appraiser, professional advisor, proposed transferee or
participant shall agree in writing to treat all such information as
confidential; and provided, further, that prior to any such disclosure to any
unrelated entity outside the ordinary course of business or pursuant to legal
process, the disclosing Bank shall give notice of such disclosure to the
Borrower and cooperate with the Borrower in any efforts to limit or restrict
such disclosure. In no event shall any Bank be obligated or required to return
any materials furnished to it by the
-75-
82
Borrower. The foregoing provisions shall not apply to a Bank with respect to
information that (i) is or becomes generally available to the public (other than
through such Bank), (ii) is already in the possession of such Bank on a
nonconfidential basis, or (iii) comes into the possession of such Bank in a
manner not known to such Bank to involve a breach of a duty of confidentiality
owing to the Borrower.
ARTICLE 12 - Waiver of Jury Trial.
Section 12.1 Waiver of Jury Trial. THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE BANKS, XXXXXX AGREE TO WAIVE AND HEREBY WAIVE THE RIGHT TO A TRIAL
BY JURY IN ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY TYPE IN WHICH THE
BORROWER, ANY OF THE BANKS, THE ADMINISTRATIVE AGENT OR ANY OF THEIR RESPECTIVE
SUCCESSORS OR ASSIGNS IS A PARTY, AS TO ALL MATTERS AND THINGS ARISING DIRECTLY
OR INDIRECTLY OUT OF THIS AGREEMENT, ANY OF THE NOTES OR THE OTHER LOAN
DOCUMENTS AND THE RELATIONS AMONG THE PARTIES LISTED IN THIS SECTION 12.1.
EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO THIS AGREEMENT WAIVES ANY RIGHTS IT
MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS SECTION, ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN,
OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY TO THIS AGREEMENT (i) CERTIFIES
THAT NEITHER ANY REPRESENTATIVE, AGENT OR ATTORNEY OF THE ADMINISTRATIVE AGENT
OR ANY BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE
AGENT OR ANY BANK WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION. THE PROVISIONS OF THIS SECTION HAVE
BEEN FULLY DISCLOSED BY AND TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT
TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY
OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN
ALL INSTANCES.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BANK]
-76-
83
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed under seal by their duly authorized officers, all as of
the day and year first above written.
BORROWER: IRT PROPERTY COMPANY, a Georgia
corporation
By: Xxxx X. Xxxxxx
--------------------------------------
Its: Executive Vice President
-------------------------------------
ADMINISTRATIVE AGENT,
SWING LINE LENDER AND
BANKS: NATIONSBANK, N.A., as Administrative
Agent, Swing Line Lender and a Bank
By: X. Xxxxx Xxxxxx
--------------------------------------
Its: Vice President
-------------------------------------
AMSOUTH BANK, as a Bank
By: Xxxxxxxxx X. XxXxxxx
--------------------------------------
Its: Assistant Vice President
-------------------------------------
FIRST UNION NATIONAL BANK, as a Bank
By: Xxxx X. Xxxxxxxx
--------------------------------------
Its: Director
-------------------------------------
84
SUBSIDIARY GUARANTY
THIS SUBSIDIARY GUARANTY (this "Guaranty") is made as of the 9th day of
September, 1998 by IRT PARTNERS L.P., a Georgia limited partnership (the
"Guarantor"), in favor of NATIONSBANK, N.A., AMSOUTH BANK and FIRST UNION
NATIONAL BANK, as banks (collectively with their successors and assigns, the
"Banks"); NATIONSBANK, N.A., as swing line lender (in such capacity, the "Swing
Line Lender"); and NATIONSBANK, N.A., as administrative agent (in such capacity,
together with its successors and assigns, the "Administrative Agent") for the
Banks and the Swing Line Lender.
W I T N E S S E T H:
WHEREAS, IRT Property Company (the "Borrower"), the Banks, the Swing
Line Lender and the Administrative Agent are all parties to that certain Amended
and Restated Loan Agreement dated as of even date herewith (as further amended,
restated, supplemented or otherwise modified from time to time, the "Loan
Agreement"); and
WHEREAS, as a condition precedent to the effectiveness of the Loan
Agreement, the Guarantor is required to execute and deliver this Guaranty; and
WHEREAS, the Guarantor is a Subsidiary (as such term is defined in the
Loan Agreement) of the Borrower; and
WHEREAS, the Borrower and the Guarantor are mutually dependent on each
other in the conduct of their respective businesses as an integrated operation,
and the Borrower has as one of its corporate purposes the obtaining of financing
needed from time to time by the Guarantor, with the Borrower's ability to obtain
such financing being dependent, in part, on the successful operations of and the
assets owned by the Guarantor; and
WHEREAS, the Guarantor has determined that its execution, delivery and
performance of this Guaranty directly benefit, and are within the corporate
purposes and in the best interests of, the Guarantor; and
WHEREAS, as a condition to the extension of the Loans by the Banks, the
Guarantor has agreed to execute this Guaranty guaranteeing the payment and
performance by the Borrower of its obligations and covenants under the Notes,
the Swing Line Note, the Loan Agreement and the other Loan Documents (the Loan
Agreement, the Notes, the Swing Line Note and the other Loan Documents, as
executed on the Agreement Date and as they may be amended, modified or extended
from time to time being hereinafter referred to as the "Guaranteed Agreements");
and
85
WHEREAS, capitalized terms used herein and not otherwise defined shall
be used as defined in the Loan Agreement;
NOW, THEREFORE, in consideration of the above premises, Ten Dollars
($10.00) in hand paid and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor hereby
unconditionally guarantees to the Banks, the Swing Line Lender and the
Administrative Agent full and prompt payment and performance when due whether at
maturity, by acceleration or otherwise, of all Obligations. Each Obligation
shall rank pari passu with each other Obligation.
The Guarantor, the Banks, the Swing Line Lender and the Administrative
Agent hereby further agree that:
1. Obligations Several. Regardless of whether any proposed guarantor
or any other Person or Persons is, are or shall become in any other way
responsible to the Banks, the Swing Line Lender, and the Administrative Agent,
or any of them, for or in respect of the Obligations or any part thereof, and
regardless of whether or not any Person or Persons now or hereafter responsible
to the Banks, the Swing Line Lender, and the Administrative Agent, or any of
them, for the Obligations or any part thereof, whether under this Guaranty or
otherwise, shall cease to be so liable, the Guarantor hereby declares and agrees
that this Guaranty is and shall continue to be a several obligation, shall be a
continuing guaranty and shall be operative and binding, and that the Guarantor
shall have no right of subrogation with respect to this Guaranty.
2. Guaranty Final. Upon the execution and delivery of this Guaranty
to the Administrative Agent, this Guaranty shall be deemed to be finally
executed and delivered by the Guarantor and shall not be subject to or affected
by any promise or condition affecting or limiting the Guarantor's liability, and
no statement, representation, agreement or promise on the part of the Banks, the
Swing Line Lender, the Administrative Agent, the Borrower, or any of them, or
any officer, employee or agent thereof, unless contained herein forms any part
of this Guaranty or has induced the making hereof or shall be deemed in any way
to affect the Guarantor's liability hereunder.
3. Amendment and Waiver. No alteration or waiver of this Guaranty or
of any of its terms, provisions or conditions shall be binding upon the parties
against whom enforcement is sought unless made in writing and signed by an
authorized officer of such party.
4. Dealings with Borrower. The Banks, the Swing Line Lender and the
Administrative Agent, or any of them, may, from time to time, without
exonerating or releasing the Guarantor in any way under this Guaranty, (i) take
such further or other security
-2-
86
or securities for the Obligations or any part thereof as the Banks, the Swing
Line Lender, and the Administrative Agent, or any of them, may deem proper,
consistent with the Loan Agreement, or (ii) release, discharge, abandon or
otherwise deal with or fail to deal with any guarantor of the Obligations or any
security or securities therefor or any part thereof now or hereafter held by the
Banks, the Swing Line Lender and the Administrative Agent, or any of them, or
(iii) consistent with the Loan Agreement, amend, modify, extend, accelerate or
waive in any manner any of the provisions, terms, or conditions of the
Guaranteed Agreements, all as the Banks, the Swing Line Lender and the
Administrative Agent, or any of them, may consider expedient or appropriate in
their sole discretion. Without limiting the generality of the foregoing, or of
Paragraph 5 hereof, it is understood that the Banks, the Swing Line Lender, and
the Administrative Agent, or any of them, may, without exonerating or releasing
the Guarantor, give up, or modify or abstain from perfecting or taking advantage
of any security for the Obligations and accept or make any compositions or
arrangements, and realize upon any security for the Obligations when, and in
such manner, as the Banks, the Swing Line Lender, and the Administrative Agent,
or any of them, may deem expedient, consistent with the Loan Agreement, all
without notice to the Guarantor.
5. Guaranty Unconditional. The Guarantor acknowledges and agrees
that no change in the nature or terms of the Obligations or any of the
Guaranteed Agreements, or other agreements, instruments or contracts evidencing,
related to or attendant with the Obligations (including any novation), nor any
determination of lack of enforceability thereof, shall discharge all or any part
of the liabilities and obligations of the Guarantor pursuant to this Guaranty;
it being the purpose and intent of the Guarantor, the Banks, the Swing Line
Lender, and the Administrative Agent that the covenants, agreements and all
liabilities and obligations of the Guarantor hereunder are absolute,
unconditional and irrevocable under any and all circumstances. Without limiting
the generality of the foregoing, the Guarantor agrees that until each and every
one of the covenants and agreements of this Guaranty is fully performed, the
Guarantor's undertakings hereunder shall not be released, in whole or in part,
by any action or thing which might, but for this paragraph of this Guaranty, be
deemed a legal or equitable discharge of a surety or guarantor, or by reason of
any waiver, omission of the Banks, the Swing Line Lender, and the Administrative
Agent, or any of them, or their failure to proceed promptly or otherwise, or by
reason of any action taken or omitted by the Banks, the Swing Line Lender, and
the Administrative Agent, or any of them, whether or not such action or failure
to act varies or increases the risk of, or affects the rights or remedies of,
the Guarantor or by reason of any further dealings between the Borrower, the
Banks, the Swing Line Lender, and the Administrative Agent, or any of them, or
any other guarantor or surety, and the Guarantor hereby expressly waives and
surrenders any defense to its liability hereunder, or any right of counterclaim
or offset of any nature or description which it may have or which may exist
based upon, and shall be deemed to have consented to, any of the foregoing acts,
omissions, things, agreements or waivers.
-3-
87
6. Set-off. The Banks, the Swing Line Lender, and the Administrative
Agent, or any of them, may, without demand or notice of any kind upon or to the
Guarantor, at any time or from time to time when any amount shall be due and
payable hereunder by the Guarantor, if the Borrower shall not have timely paid
its Obligations, set off and appropriate and apply any and all deposits (general
or special, time or demand, including, but not limited to, Indebtedness
evidenced by certificates of deposit, in each case whether matured or unmatured)
and any other Indebtedness at any time held or owing by the Banks, the Swing
Line Lender or such holder to or for the credit or the account of the Borrower,
against and on account of the obligations and liabilities of the Borrower, to
the Banks, the Swing Line Lender or such holder under the Loan Agreement, the
Notes the Swing Line Note and any other Loan Document, including, but not
limited to, all claims of any nature or description arising out of or connected
with the Loan Agreement, the Notes, the Swing Line Note or any other Loan
Document, irrespective of whether or not (a) the Banks, the Swing Line Lender or
the holders of the Notes and the Swing Line Note shall have made any demand
hereunder or (b) the Banks and the Swing Line Lender shall have declared the
principal of and interest on the Loans, Notes and the Swing Line Note and other
amounts due under the Loan Agreement to be due and payable and although said
obligations and liabilities, or any of them, shall be contingent or unmatured.
Upon direction by the Administrative Agent, with the consent of the Majority
Banks, after the Maturity Date (whether by reason of acceleration or otherwise),
each Bank and the Swing Line Lender holding deposits of the Guarantor shall
exercise its set-off rights as so directed.
7. Maximum Guaranteed Amount. The creation or existence from time to
time of Obligations in excess of the amount committed to or outstanding on the
date of this Guaranty is hereby authorized by the Guarantor, without notice to
the Guarantor, and shall in no way impair or affect this Guaranty or the rights
of the Banks, the Swing Line Lender, and the Administrative Agent, or any of
them, herein. It is the intention of the Guarantor, the Banks, the Swing Line
Lender, and the Administrative Agent, that the Guarantor's obligations hereunder
shall be in, but not in excess of, the Maximum Guaranteed Amount. The "Maximum
Guaranteed Amount" shall mean the maximum amount which could be paid out by the
Guarantor without rendering this Guaranty void or voidable under Applicable Law
including, without limitation, (a) Title 11 of the United States Code, as
amended, and (b) applicable state law regarding fraudulent conveyances or
fraudulent transfers.
8. Bankruptcy. Upon the bankruptcy or winding up or other
distribution of assets of the Borrower or any Subsidiary of the Borrower (other
than the Guarantor) or of any surety or guarantor for the Obligations, the
rights of the Banks, the Swing Line Lender, and the Administrative Agent, or any
of them, against the Guarantor shall not be affected or impaired by the omission
of the Banks, the Swing Line Lender, and the Administrative Agent, or any of
them, to prove its or their claim, as appropriate, or to prove its or their full
claim, as appropriate, and the Banks, the Swing Line Lender, and the
Administrative Agent
-4-
88
may prove such claims as they see fit and may refrain from proving any claim and
in their respective discretion they may value as they see fit or refrain from
valuing any security held by the Banks, the Swing Lender, and the Administrative
Agent, or any of them, without in any way releasing, reducing or otherwise
affecting the liability to the Banks, the Swing Line Lender, and the
Administrative Agent of the Guarantor.
9. Application of Payments. The Banks, the Swing Line Lender and the
Administrative Agent hereby acknowledge and agree that to the extent the Loan
Agreement and any of the Existing Senior Obligations (as defined below) are then
in default, any funds, payments, claims or distributions (the "Guaranty
Proceeds") actually received hereunder shall be made available for distribution
equally and ratably (based on the principal amounts then outstanding) among (a)
the holders of the Obligations and (b) the holders of the Existing Senior
Obligations. For purposes hereof, "Existing Senior Obligations" shall mean
Indebtedness for Money Borrowed owed or guaranteed in connection with any
public, unsecured and non-subordinated Indebtedness for Money Borrowed of the
Borrower issued in offerings registered under the Securities Act of 1933 or in
placements exempt from registration pursuant to Rule 144A or Regulations
thereunder or otherwise, which is outstanding on the date the Banks, the Swing
Line Lender and the Administrative Agent receive such Guaranty Proceeds. This
Section 9 shall not apply to any payments, funds, claims or distributions
received by the Administrative Agent, the Swing Line Lender or the Banks
directly or indirectly from the Borrower or any other Person other than from the
Guarantor hereunder. The Guarantor acknowledges and agrees with the
Administrative Agent, the Swing Line Lender and the Banks as follows:
(a) To the extent any Guaranty Proceeds are distributed to the
holders of the Existing Senior Obligations, the Obligations shall not be deemed
reduced by any such distribution, and the Guarantor will continue to make
payments pursuant to this Guaranty until such time as the Obligations have been
paid in full after taking into effect any distributions of Guaranty Proceeds to
the holders of Existing Senior Obligations;
(b) Nothing contained herein shall be deemed to limit, modify or
alter the rights of the Administrative Agent, the Swing Line Lender or any of
the Banks or be deemed to subordinate the Obligations to the Existing Senior
Obligations, nor give to any holder of Existing Senior Obligations any rights of
subrogation;
(c) Nothing contained herein shall be deemed for the benefit of
any holders of Existing Senior Obligations nor shall anything be construed to
impose on the Administrative Agent, the Swing Line Lender or any of the Banks
any fiduciary duties, obligations or responsibilities to the holders of the
Existing Senior Obligations; and
-5-
89
(d) This Guaranty is for the sole benefit of the Administrative
Agent, the Swing Line Lender and the Banks and their respective successors and
assigns, and any amounts received by the Banks, the Swing Line Lender and the
Administrative Agent, or any of them, from whatsoever source and applied toward
the payment of the Obligations shall be applied in such order of application as
is set forth in the Loan Agreement.
10. Waivers by Guarantor. The Guarantor hereby expressly waives: (a)
notice of acceptance of this Guaranty, (b) notice of the existence or creation
of all or any of the Obligations, (c) presentment, demand, notice of dishonor,
protest, and all other notices whatsoever, (d) all diligence in collection or
protection of or realization upon the Obligations or any part thereof, any
obligation hereunder, or any security for any of the foregoing and (e) all
rights of subrogation, indemnification, contribution and reimbursement against
the Borrower, all rights to enforce any remedy the Banks, the Swing Line Lender,
and the Administrative Agent, or any of them, may have against the Borrower and
any benefit of, or right to participate in, any collateral or security now or
hereinafter held by the Banks, the Swing Line Lender, and the Administrative
Agent, or any of them, in respect of the Obligations, even upon payment in full
of the Obligations. Any money received by the Guarantor in violation of this
Section shall be held in trust by the Guarantor for the benefit of the Banks,
the Swing Line Lender and the Administrative Agent. If a claim is ever made upon
the Banks, the Swing Line Lender, and the Administrative Agent, or any of them,
for the repayment or recovery of any amount or amounts received by any of them
in payment of any of the Obligations and such Person repays all or part of such
amount by reason of (a) any judgment, decree, or order of any court or
administrative body having jurisdiction over such Person or any of its property,
or (b) any good faith settlement or compromise of any such claim effected by
such Person with any such claimant, including the Borrower, then in such event
the Guarantor agrees that any such judgment, decree, order, settlement, or
compromise shall be binding upon the Guarantor, notwithstanding any revocation
hereof or the cancellation of any promissory note or other instrument evidencing
any of the Obligations, and the Guarantor shall be and remain obligated to such
Person hereunder for the amount so repaid or recovered to the same extent as if
such amount had never originally been received by such Person.
11. Assignment by the Banks, the Swing Line Lender or Administrative
Agent. To the extent permitted under the Loan Agreement, the Banks, the Swing
Line Lender, and the Administrative Agent may each, and without notice of any
kind, sell, assign or transfer all or any of the Obligations, and in such event
each and every immediate and successive assignee, transferee, or holder of all
or any of the Obligations, shall have the right to enforce this Guaranty, by
suit or otherwise, for the benefit of such assignee, transferee or holder as
fully as if such assignee, transferee or holder were herein by name specifically
given such rights, powers and benefits.
-6-
90
12. Remedies Cumulative. No delay by the Banks, the Swing Line
Lender, and the Administrative Agent, or any of them, in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise by the Banks, the Swing Line Lender, and the Administrative Agent, or
any of them, of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy. No action by the Banks,
the Swing Line Lender, and the Administrative Agent, or any of them, permitted
hereunder shall in any way impair or affect this Guaranty. For the purpose of
this Guaranty, the Obligations shall include, without limitation, all
Obligations of the Borrower to the Banks, the Swing Line Lender, and the
Administrative Agent notwithstanding any right or power of any third party,
individually or in the name of the Borrower or any other Person, to assert any
claim or defense as to the invalidity or unenforceability of any such
Obligation, and no such claim or defense shall impair or affect the obligations
of the Guarantor hereunder.
13. Successors and Assigns. This Guaranty shall be binding upon the
Guarantor, its successors and assigns and inure to the benefit of the successors
and assigns of the Banks, the Swing Line Lender, and the Administrative Agent.
The Guarantor shall not assign its rights or obligations under this Guaranty
without the consent of the Swing Line Lender and all the Banks, nor shall the
Guarantor amend this Guaranty, without the consent of the Swing Line Lender and
the Majority Banks.
14. Miscellaneous. This is a Guaranty of payment and not of
collection. In the event of a demand upon the Guarantor under this Guaranty, the
Guarantor shall be held and bound to the Banks, the Swing Line Lender, and the
Administrative Agent directly as debtor in respect of the payment of the amounts
hereby guaranteed. All reasonable costs and expenses, including attorneys' fees
and expenses, incurred by the Banks, the Swing Line Lender, and the
Administrative Agent, or any of them, in obtaining performance of or collecting
payments due under this Guaranty shall be deemed part of the Obligations
guaranteed hereby. Any notice or demand which the Banks, the Swing Line Lender,
and the Administrative Agent, or any of them, may wish to give shall be served
upon the Guarantor in the fashion prescribed for notices in Section 11.1 of the
Loan Agreement in care of the Borrower at the address for the Borrower set forth
in or otherwise provided pursuant to Section 11.1 of the Loan Agreement, and the
notice so sent shall be deemed to be served as set forth in Section 11.1 of the
Loan Agreement. The provisions of this Guaranty are for the benefit of the
Administrative Agent, the Banks and the Swing Line Lender and may not be relied
upon or enforced by any other Person without the express written consent of the
Banks, the Swing Line Lender and the Administrative Agent.
15. Loans Benefit Guarantor. The Guarantor expressly represents and
acknowledges that any financial accommodations by the Banks, the Swing Line
Lender, and the Administrative Agent, or any of them, to the Borrower,
including, without limitation the
-7-
91
extension of the Loans, are and will be of direct interest, benefit and
advantage to the Guarantor.
16. Solvency. The Guarantor expressly represents and warrants that as
of the date hereof and after giving effect to the transactions contemplated by
the Loan Documents (i) the capital of the Guarantor will not be unreasonably
small to conduct its business; (ii) the Guarantor will not have incurred debts,
or have intended to incur debts, beyond its ability to pay such debts as they
mature; and (iii) the present fair salable value of the assets of the Guarantor
is greater than the amount that will be required to pay its probable liabilities
(including debts) as they become absolute and matured. For purposes of this
Section 16, "debt" means any liability on a claim, and "claim" means (a) the
right to payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, undisputed, legal,
equitable, secured or unsecured, or (b) the right to an equitable remedy for
breach of performance if such breach gives rise to a right to payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, undisputed, secured or unsecured.
17. Visits and Inspections. The Guarantor covenants and agrees that
so long as any amount is owing on account of Obligations or otherwise pursuant
to this Guaranty, the Guarantor shall permit representatives of the Banks, the
Swing Line Lender, and the Administrative Agent, or any of them, to visit and
inspect properties of the Guarantor during normal business hours after
reasonable notice, inspect the Guarantor's books and records and discuss with
the principal officers of the Guarantor its businesses, assets, liabilities,
financial positions, results of operations and business prospects.
18. Governing Law. This Guaranty shall be construed in accordance
with and governed by the internal laws of the State of Georgia applicable to
contracts made and to be performed in the State of Georgia.
19. Jurisdiction and Venue. If any action or proceeding shall be
brought by the Administrative Agent in order to enforce any right or remedy
under this Guaranty, the Guarantor hereby consents to the jurisdiction of any
state or federal court of competent jurisdiction sitting within the area
comprising the Northern District of Georgia on the date of this Guaranty. The
Guarantor hereby agrees that service of the summons and complaint and all other
process which may be served in any such suit, action or proceeding may be
effected by mailing by registered mail a copy of such process to the offices of
the Borrower, as set forth in or otherwise provided pursuant to Section 11.1 of
the Loan Agreement, and that personal service of process shall not be required.
Nothing herein shall be construed to prohibit service of process by any other
method permitted by law, or the bringing of any suit, action or proceeding in
any other jurisdiction. The Guarantor agrees that final judgment in
-8-
92
such suit, action or proceeding shall be conclusive and may be enforced in any
other jurisdiction by suit on the judgment or in any other manner provided by
Applicable Law.
20. Waiver of Jury Trial. The Guarantor waives any right to a trial
by jury in any proceeding arising out of this Guaranty.
21. Time of the Essence. Time is of the essence with regard to the
Guarantor's performance of its obligations hereunder.
22. Administrative Agent. Each reference herein to any right granted
to, benefit conferred upon or power exercisable by the "Administrative Agent"
shall be a reference to the Administrative Agent for the benefit of itself, the
Swing Line Lender and all the Banks, and each action taken or right exercised
hereunder shall be deemed to have been so taken or exercised by the
Administrative Agent for the benefit of and on behalf of itself, the Swing Line
Lender and all the Banks.
23. Ratifications. The Guarantor hereby ratifies and affirms each
representation, warranty, covenant and other agreement made on its behalf by the
Borrower in the Loan Agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-9-
93
IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be
executed by their duly authorized officers as of the date first above written.
GUARANTOR: IRT PARTNERS L.P.
BY IRT PROPERTY COMPANY, ITS GENERAL PARTNER
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Its: Executive Vice President
-----------------------------------
ADMINISTRATIVE AGENT,
SWING LINE LENDER AND
BANKS: NATIONSBANK, N.A., as Administrative Agent,
Swing Line Lender and as a Bank
By: /s/ X. Xxxxx Xxxxxx
------------------------------------------
Its: Vice President
-----------------------------------
AMSOUTH BANK, as a Bank
By: /s/ Xxxxxxxxx X. XxXxxxx
------------------------------------------
Its: Assistant Vice President
-----------------------------------
FIRST UNION NATIONAL BANK, as a Bank
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Its: Director
-----------------------------------
