CREDIT AGREEMENT
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This Credit Agreement is executed by the parties hereto on
___________________, but is effective as of the Effective Date (as hereinafter
defined). Xxxxxxxxxx Realty Investors, a Texas real estate investment trust
(the "Borrower"), Bank of America, N.A., a national banking association (in its
individual capacity "BOA") and any bank that may hereafter become a party hereto
in accordance with the provisions hereof (each individually, a "Bank" and
collectively, the "Banks"), and BOA as Agent hereunder (in such capacity, the
"Agent") for the Banks hereunder, hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION I.1. Certain Defined Terms. As used in this Credit Agreement (the
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"Agreement"), the following terms shall have the following meanings (such
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meanings to be equally applicable to both the singular and plural forms of the
terms defined):
"Act" shall have the meaning specified in Section 5.01.
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"Adjusted Net Proceeds" has the meaning specified in Section 7.04.
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"Adjusted Tangible Net Worth" means, as of any date, (a) Net Worth, less
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(b) the aggregate book value of Intangible Assets shown on the balance sheet of
the Borrower prepared in accordance with GAAP, plus (c) accumulated depreciation
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shown on the balance sheet of the Borrower prepared in accordance with GAAP.
"Advance" means the Advances under the Revolving Credit Loan provided for
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in Section 2.01 hereof.
"Affiliate" means any Person which, directly or indirectly, controls or is
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controlled by or is under common control with another Person. For purposes of
this definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, means the power to direct or cause the direction of the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities or by contract or otherwise.
"Annual Service Charge" means, for any Calculation Period, the sum of (i)
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the amount accrued during such period in respect of interest (including the
interest component of Capitalized Lease obligations) and original issue discount
of Debt of the Borrower and its Subsidiaries, plus (ii) amounts accrued by the
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Borrower and its Subsidiaries in respect of Disqualified Stock (including,
without limitation, dividends payable thereon).
"Annual Service Charge Coverage Ratio" has the meaning specified in Section
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7.07(a).
"Applicable Margin" shall mean with respect to any LIBOR Rate Advance, a
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rate per annum equal to fifty-five one hundredths of one percent (.55%).
"Assignee" has the meaning specified in Section 10.08(a) hereof.
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"Assignment and Acceptance" has the meaning specified in Section 10.08(a)
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hereof.
"Xxxx Plaza" has the meaning specified in Section 6.10 hereof.
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"Xxxx Xxxxx Xxxxxxxx Xxxxxx" has the meaning specified in Section 6.10
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hereof.
"Borrowing" means a revolving credit loan borrowing under Section 2.01
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hereof consisting of one Advance from each Bank, of the same Type made on the
same day.
"Business Day" means a day of the year on which banks are not required or
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authorized to close in Dallas, Texas and, if the applicable Business Day relates
to any LIBOR Rate Advances, on which dealings are carried on in the London
interbank market.
"Calculation Period" shall mean the applicable period specified in this
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Agreement for the particular test or other calculation required hereunder.
"Capital Shares" means, with respect to any Person, any capital stock or
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capital shares (including without limitation, preferred stock or shares),
interests, participations or other ownership interests (however designated) of
such Person, and any rights, warrants, or options to purchase any thereof.
"Capitalized Lease" means any lease of any property (whether real, personal
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or mixed) which, in conformity with GAAP, is accounted for as a capital lease on
the balance sheet of the lessee.
"Cash Equivalents" means (a) marketable direct obligations issued or
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unconditionally guaranteed by the United States Government or issued by an
agency thereof or by the Federal National Mortgage Association; (b) commercial
paper maturing no more than ninety (90) days after the date of creation thereof
and, at the time of acquisition, having a rating of at least A-1 or P-1 from
either S&P or Xxxxx'x (or, if at any time neither S&P nor Xxxxx'x shall be
rating such obligations, then the highest rating from such other nationally
recognized rating services acceptable to the Agent); (c) investments in
repurchase agreements backed by securities described in clause (a) hereof; and
(d) domestic and eurodollar certificates of deposit or bankers' acceptances
maturing within ninety (90) days after the date of acquisition thereof issued by
any Bank or any commercial bank organized under the laws of the United States of
America or any state thereof or the District of Columbia having capital of not
less than $100,000,000.
"Central Plaza" has the meaning specified in Section 6.09 hereof.
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"Central Plaza Shopping Center" has the meaning specified in Section 6.09
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hereof.
"Closing Date" means the date the Agreement becomes effective in accordance
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with Article IV.
"Code" means the Internal Revenue Code of 1986, as amended from time to
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time, and any successor statute.
"Commitment" means, as to any Bank, such Bank's Pro Rata Percentage of
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$100,000,000, as such amount is set forth on the signature pages hereof with
respect to each Bank on and as of the Closing Date, and as it may be reduced
from time to time in accordance with Section 2.05, and includes its commitment
in respect of the Revolving Credit Loan as described in Section 2.01, and
"Commitments" means, collectively, the Commitments for all the Banks.
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"Commitment Fee" means, the $75,000 nonrefundable Commitment Fee, to be
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paid to Agent in consideration of the commitment of Agent to make the proceeds
of the Revolving Loan available to the Borrower from time to time during the
term of, and as provided in, this Agreement. The Borrower and Agent acknowledge
and agree that the Commitment Fee is a bona fide commitment fee and is intended
as reasonable compensation to Agent for committing to make funds available to
the Borrower as described herein and for no other purpose.
"Compliance Certificate" has the meaning specified in Section 6.01(c).
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"Debt"of the Borrower or any Subsidiary means any indebtedness of the
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Borrower, or any Subsidiary, whether or not contingent, in respect of (without
duplication):
(i) borrowed money, or obligations evidenced by bonds, notes,
debentures or similar instruments,
(ii) the portion of indebtedness secured by any Lien existing on
property owned by the Borrower or any Subsidiary,
(iii) the reimbursement obligations, contingent or otherwise, in
connection with any letters of credit or similar instruments issued or confirmed
by banks or other financial institutions for the account of the Borrower or any
Subsidiary,
(iv) amounts representing the balance deferred and unpaid of the
purchase price of any property or services (except any such balance that
constitutes trade payables) or conditional sale obligations or obligations under
any title retention agreement,
(v) the principal amount of all obligations of the Borrower or any
Subsidiary with respect to redemption, repayment or other repurchase of any
Disqualified Stock,
(vi) Guaranties, or
(vii) obligations of the Borrower or any Subsidiary as lessee under a
Capitalized Lease; provided that the items of indebtedness under (i), (ii),
(iii) and (iv) above shall be deemed to be Debt only to the extent that any such
items (other than obligations in respect of letters of credit) would appear as a
quantified liability on the Borrower's consolidated balance sheet in accordance
with GAAP (as distinguished from being referred to in the notes to such
Financial Statement).
The term "Debt" shall not include (x) contingent liabilities relating to
deposit and/or endorsement of checks in the ordinary course of business of the
Borrower or any Subsidiary; or (y) guaranties or contingent liabilities under
leases customarily undertaken or incurred by the Borrower or any Subsidiary in
the ordinary course of business as either landlord or tenant. The term "Debt"
includes the Borrower's and Subsidiaries' share of debt of partnerships and
joint ventures (other than debt that is non-recourse to the Borrower or its
Subsidiaries) which are accounted for on the Borrower's Financial Statements
under the equity method of accounting.
"Debtor Laws" means all applicable liquidation, conservatorship,
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bankruptcy, moratorium, arrangement, receivership, insolvency, reorganization or
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similar laws or general equitable principles from time to time in effect
affecting the rights of creditors generally.
"Default" means any event which, with the lapse of time or giving of
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notice, or both, would constitute an Event of Default.
"Disqualified Stock" means, with respect to any Person, any Capital Shares
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of such Person, which by the terms thereof (or by the terms of any security or
instrument into which such Capital Shares are convertible or for which such
Capital Shares are exchangeable or exercisable) upon the happening of any event
or otherwise, (i) mature or are mandatorily redeemable, pursuant to a sinking
fund obligation or otherwise, (ii) are convertible into or exchangeable or
exercisable for Debt or Disqualified Stock, or (iii) are redeemable at the
option of the holder thereof, in whole or in part, in each case on a date prior
to the stated maturity of the Notes.
"Effective Date" shall mean the earlier to occur of (i) Borrower's giving
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Agent written notice designating an effective date (which designated date shall
be no earlier than 3 Business Days following the giving of such notice), or (ii)
March 1, 2000, provided, in either case, that Borrower has wire transferred to
Agent the Commitment Fee.
"Eligible Assignee" means any of (i) a commercial bank organized under the
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laws of the United States, or any State thereof or the District of Columbia; and
(ii) a savings and loan association or savings bank organized under the laws of
the United States, or any State thereof or the District of Columbia, provided,
however, that no institution described in clause (i) or (ii) above shall be an
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Eligible Assignee unless it has total assets in excess of $20 billion and unless
debt obligations issued by such financial institution (or by a parent entity
owning beneficially all of the capital stock of such financial institution) are
rated "Baa2" or higher by Xxxxx'x or "BBB" or higher by S & P.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Subsidiary or trade or business (whether or not
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incorporated) which is a member of a group of which the Borrower is a member and
which is under common control within the meaning of Section 414 of the Code and
the rules and regulations thereunder.
"ERISA Event" means any of the following events: (a) a "Reportable Event"
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described in Section 4043 of ERISA and the regulations issued thereunder (other
than a "Reportable Event" not subject to the provisions for the 30-day notice to
the PBGC under such regulations), (b) the withdrawal of the Borrower from a PBGC
Plan during a plan year in which it was a Asubstantial employer" as defined in
Section 4001 (a)(2) of ERISA or the incurrence of liability by the Borrower
under Section 4064 of ERISA, (c) the distribution of a notice of intent to
terminate a PBGC Plan pursuant to Section 4041 (c) of ERISA or the treatment of
a PBGC Plan amendment as a termination under Section 4041 of ERISA, (d) the
institution of proceedings to terminate a PBGC Plan by the PBGC, or (e) any
other event or condition which might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
PBGC Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
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Regulation D of the Board of Governors of the Federal Reserve System, as in
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effect from time to time.
"Events of Default" has the meaning specified in Section 8.01.
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"Financial Statements" shall mean statements of the financial condition of
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the Borrower and its Subsidiaries on a consolidated basis as set forth in the
Borrower's Annual Report on Form 10K for each calendar year, or in the
Borrower's Quarterly Report on Form 10-Q for each quarterly accounting period,
and filed with the Securities and Exchange Commission, or if such filing is not
permitted or required at any time, financial statements in such form of the
Borrower and its Subsidiaries on a consolidated basis, delivered to the Agent
and, in such event, for quarterly financial statements, certified by a
Responsible Officer as presenting fairly the consolidated financial position of
the Borrower and its Subsidiaries as of the date indicated and the results of
their operations for the period indicated in conformity with GAAP, consistently
applied, subject to changes resulting from year-end adjustments, and for
year-end financial statements together with the unqualified opinion of Deloitte
& Touche, or other independent public accountants of recognized national
standing selected by the Borrower, stating that such financial statements fairly
present the consolidated financial position of the Borrower and its Subsidiaries
as of the date indicated and the consolidated results of their operations and
changes in financial position for the period indicated in conformity with GAAP,
consistently applied.
"Fixed Charge" means, for any Calculation Period, the sum of (i) the amount
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accrued during such period in respect of interest (including the interest
component of Capitalized Lease Obligations) and original issue discount of Debt
of the Borrower and its Subsidiaries, plus (ii) principal payments on Debt
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scheduled to be paid during such period (excluding any balloon payment on notes
or other obligations which are normally refinanced) plus (iii) amounts accrued
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by the Borrower and its Subsidiaries in respect of Borrower's (and its
Subsidiaries') outstanding preferred stock (including, without limitation,
dividends payable thereon).
"Fixed Charge Coverage Ratio" has the meaning specified in Section 7.07(b).
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"Funds from Operations" means for any Calculation Period, net income of the
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Borrower and its Subsidiaries plus (i) each of the following, to the extent
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actually deducted in arriving at such net income during such period: (A)
depreciation and amortization expenses, (B) the amount accrued during such
period in respect of interest (including the interest component of Capitalized
Lease obligations) and original issue discount of Debt of the Borrower and its
Subsidiaries, and (C) extraordinary charges plus (ii) the excess, if any, of the
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share of distributable funds allowable under any joint venture or partnership
which is not a Guarantor over net income from such joint venture or partnership,
minus (iii) each of the following to the extent actually included in arriving at
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such net income during such period: (x) gains on the sale or disposition of
properties and investment securities of the Borrower and its Subsidiaries, and
(y) the excess, if any, of net income from any joint venture or partnership
which is not a Guarantor, over the share of distributable funds allowable under
the applicable joint venture or partnership agreement.
"GAAP" means generally accepted accounting principles set forth in the
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opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants, and statements and pronouncements of
the Financial Accounting Standards Board.
"Governmental Authority" means any (domestic or foreign) federal, state,
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county, municipal, parish, provincial, or other government, or any department,
commission, board, court, agency (including, without limitation, the
Environmental Protection Agency), or any other instrumentality of any of them or
any other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory, or administrative functions of, or pertaining
to, government, including, without limitation, any arbitration panel, any court,
or any commission.
"Governmental Requirement" means any order, permit, law, statute
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(including, without limitation, any statute enacted in connection with or
relating to the protection or regulation of the environment), code, ordinance,
rule, regulation, certificate, or other direction or requirement of any
Governmental Authority.
"Guarantor" means each Subsidiary which is a corporation, 100% of the
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capital stock of which is owned by the Borrower, or a Subsidiary, and that has
executed or will execute a Guaranty Agreement, including without limitation,
each Guaranty Agreement executed in accordance with Section 6.06 herein.
"Guaranty" or "Guarantees" has the meaning specified in Section 7.12, and
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does not include a "Guaranty Agreement", executed in favor of the Banks in
connection with this Agreement.
"Guaranty Agreement" means a Guaranty Agreement executed by each
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Guarantor substantially in the form of Exhibit 1.01-A, attached hereto.
"Highest Lawful Rate" means, with respect to each Bank, the maximum
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nonusurious interest rate, if any, that at any time or from time to time may
be contracted for, taken, reserved, charged, or received with respect to any
Note or on other amounts, if any, due to such Bank pursuant to this Agreement
or any other Loan Document under laws applicable to such Bank which are
presently in effect or, to the extent allowed by law, under such applicable
laws which may hereafter be in effect.
"Intangible Assets" means those assets of the Borrower which are (a)
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deferred assets, other than prepaid insurance and prepaid taxes, (b) patents,
copyrights, trademarks, tradenames, franchises, goodwill, experimental expenses
and other similar assets which would be classified as intangible assets on a
balance sheet of the Borrower, prepared in accordance with GAAP, and (c)
unamortized debt discount and expenses.
"Interest Period" means, for each LIBOR Rate Advance comprising part of
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the same Borrowing, the period commencing on the date of such Advance or the
date of the conversion of any Advance into such an Advance and ending on
the last day of the period elected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on the last
day of the immediately preceding Interest Period and ending on the last
day of the period selected by the Borrower pursuant to the provisions below.
The duration of each such Interest Period shall be seven (7) days or one, two
or three months, as the Borrower may, upon notice received by the Agent
have selected in accordance with Section 2.02; provided however, that:
(i) the duration of any Interest Period which commences before any principal
repayment date required hereunder and would otherwise end (but for this
provision) after such date shall end on such date; and
(ii) whenever the last day of any Interest Period would otherwise (but for
this provision) occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding Business Day,
provided, that, if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day.
"Interest Rate Agreements" shall have the meaning specified in Section
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8.01(i).
"Investment" of any Person means any investment so classified under GAAP,
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and, whether or not so classified, includes (a) any direct or indirect loan or
advance made by it to any other Person, whether by means of stock purchase,
loan, advance or otherwise, (b) any capital contribution to any other Person,
and (c) any ownership or similar interest in any other Person.
"LIBOR Rate" means, for any Interest Period for each LIBOR Rate Advance, an
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interest rate per annum determined by the Agent to be the average (rounded, if
necessary, to the nearest whole multiple of one thirty-second of one percent
(1/32%) if such average is not a multiple thereof) of the rate per annum at
which deposits in U.S. dollars are offered to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days prior to the
commencement of such Interest Period, in an amount substantially equal to such
LIBOR Rate Advance and for a period equal to such Interest Period.
"LIBOR Rate Advance" means an Advance which bears interest at the LIBOR
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Rate as provided in Section 2.06(a).
"LIBOR Rate Reserve Percentage" of any Bank for any Interest Period for any
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LIBOR Rate Advance means the reserve percentage, if any, applicable during such
Interest Period (or if more than one such percentage shall be so applicable, the
daily average of such percentages for those days in such Interest Period during
which any such percentage shall be so applicable) under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement,
expressed as a percentage per annum) for such Bank with respect to liabilities
or assets consisting of or including eurocurrency liabilities having a term
equal to such Interest Period.
"Lien" means any claim, mortgage, deed of trust, pledge, security interest,
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encumbrance, lien, or charge of any kind (including, without limitation, any
agreement to give any of the foregoing), any conditional sale or other title
retention agreement, or the interest of the lessor under any Capitalized Lease
(but otherwise excluding leases).
"Loan Documents" means this Agreement, the Notes, the Guaranty Agreements,
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and any document or instrument executed in connection with the foregoing.
"Majority Banks means at any time Banks holding at least 66 2/3% of the
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then aggregate unpaid principal amount of the Notes held by Banks, or, if no
such principal amount is then outstanding, Banks having at least 66 2/3% of the
Commitments.
"Margin Stock" shall have the meaning assigned to such term in any of
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Regulation T, U or X.
"Xxxxx'x" means Xxxxx'x Investors Service, Inc.
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"Xxxxxx Loan (Series 1995)" has the meaning specified in Section 6.09
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hereof.
"Xxxxxx Loan (Series 1996)" has the meaning specified in Section 6.10
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hereof.
"Multiemployer Plan" means a Amultiemployer plan" as defined in Section
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4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making or
accruing or has made or accrued an obligation to make contributions.
"Net Proceeds" means with respect to the disposition of Real Property of
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the Borrower permitted by Section 7.04 hereof, all proceeds realized from such
disposition after deducting: (i) any withholding taxes arising from the
disposition of assets located outside of the United States; (ii) the ordinary
and customary out-of-pocket costs of such disposition; and (iii) amounts applied
to the repayment of Debt secured by Liens on such Real Property, to the extent
such Liens were not prohibited hereunder. "Net Proceeds" shall also include
proceeds of insurance with respect to an actual or constructive loss of such
property, an agreed or compromised loss of such property or the taking of any
such property under the power of eminent domain and condemnation awards and
awards in lieu of condemnation for the taking of property under the power of
eminent domain.
"Net Worth" means, as of any date, Assets (which term, for the purposes
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hereof, means Assets as shown on a balance sheet prepared in accordance with
GAAP) minus Liabilities (which term, for the purposes hereof, means Liabilities
as shown on a balance sheet prepared in accordance with GAAP).
"Non-Recourse Debt" of any Person means Debt of such Person in respect of
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which (other than with respect to agreements in respect of such Debt regarding
the occurrence of certain wrongful acts or misapplication of funds) (i) the
recourse of the holder of such Debt, whether direct or indirect and whether
contingent or otherwise, is effectively limited to the assets directly securing
such Debt; and (ii) such holder may not collect by levy of execution against
assets of such Person generally (other than the assets directly securing such
Debt) if such Person fails to pay such Debt when due and the holder obtains a
judgment with respect thereto.
"Note" or "Notes" has the meaning specified in Section 2.02(c).
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"Notice of Borrowing" has the meaning specified in Section 2.02(a).
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"Notice of Interest Conversion" has the meaning specified in Section 2.09.
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"Obligations" means all of the obligations of the Borrower and its
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Subsidiaries now or hereafter existing under the Loan Documents to which it is a
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party, whether for principal, interest, fees, expenses, indemnification or
otherwise.
"Organizational Document" has the meaning set forth in Section 4.01(d).
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"PBGC" means the Pension Benefit Guaranty Corporation.
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"Permitted Debt" means Debt which does not exceed the limits specified in
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Section 7.02.
"Permitted Liens" means:
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(a) non-consensual Liens imposed by operation of law including, without
limitation, Liens for taxes not yet delinquent, landlord Liens for rent not yet
due and payable, and Liens for materialmen, mechanics, warehousemen, carriers,
employees, workmen, repairmen, current wages, or accounts payable not yet
delinquent and arising in the ordinary course of business; provided, however,
that any right to seizure, levy, attachment, sequestration, foreclosure, or
garnishment with respect to Property of the Borrower or any Subsidiary by reason
of such Lien has not matured, or has been, and continues to be, effectively
enjoined or stayed;
(b) easements, rights-of-way, restrictions, and other similar Liens or
imperfections to title which do not materially interfere with the occupation,
use, and enjoyment by the Borrower or any Subsidiary of the Property encumbered
thereby or materially impair the value of such Property subject thereto for its
intended purpose;
(c) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business (i) in connection with workers'
compensation, unemployment insurance and other types of social security, or (ii)
to secure (or to obtain letters of credit that secure) the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
performance or payment bonds, purchase, construction or sales contracts and
other similar obligations, in each case not incurred or made in connection with
the borrowing of money, the obtaining of advances or credit or the payment of
the deferred purchase price of property; and
(d) UCC protective filings with respect to personal property leased to
the Borrower or any Subsidiary.
"Person" means an individual, partnership, corporation (including a
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business trust), joint stock company, trust, unincorporated association, joint
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venture or other entity, or a Governmental Authority.
"Plan" means any employee benefit plan within the meaning of Section 3(3)
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of ERISA, other than a Multiemployer Plan, maintained by the Borrower or any
ERISA Affiliate.
"Prime Rate" shall mean for each Prime Rate Portion the rate per annum most
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recently established by Agent as its Aprime rate". Without notice to the
Borrower or any other Person, the Prime Rate shall change automatically from
time to time as and in the amount by which such prime rate shall fluctuate, with
each such change to be effective as of the date of each change in such prime
rate. The Prime Rate is set by Agent as a general reference rate of interest,
taking into account such factors as Agent may deem appropriate, it being
understood that it is not necessarily the lowest or best rate actually charged
to any customer or a favored rate, that it may not correspond to any future
increases or decreases of interest rates charged by other lenders, or market
rates in general, and Agent may make various commercial or other loans at rates
of interest having no relationship to such rate.
"Prime Rate Advance" means an Advance which bears interest at the Prime
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Rate.
"Property" means any interest or right in any kind of property or asset,
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whether real, personal, or mixed, owned or leased, tangible or intangible, and
whether now held or hereafter acquired.
"Pro Rata Percentage" or Aratably" means as to any Bank a fraction
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(expressed as a percentage) the numerator of which shall be the aggregate
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original principal amount of such Bank's Note and the denominator of which shall
be $100,000,000.
"Rating Certificate" has the meaning specified in Section 6.01(h).
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"Real Property" means all of the land, buildings, improvements and projects
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under construction owned by the Borrower or any Subsidiary, including without
limitation all improvements thereon, fixtures, and any leasehold or other
interest in such property owned or held by the Borrower or any Subsidiary, but
excluding Property under direct financing leases (as reflected on the balance
sheet of the Borrower).
"Register" has the meaning specified in subsection 10.08(c) hereof.
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"Regulation T" "Regulation U" and "Regulation X" means Regulation T, U or
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aX,s the case may be, of the Board of Governors of the Federal Reserve System,
or any successor or other regulation hereafter promulgated by said Board to
replace the prior Regulation T, U or X and having substantially the same
function.
"Responsible Officer"means the chief financial officer or the chief
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accounting officer of the Borrower.
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"Revolving Credit Loan" or "Revolving Loan" means the revolving credit loan
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to be made under Section 2.01 hereof.
"Revolving Credit Termination Date" means the earlier of (i) three hundred
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sixty-four (364) days from the Effective Date of this Agreement or (ii) the date
(x) the Commitments have been terminated in accordance with this Agreement
(including, without limitation, under Section 8.01 hereof) and (y) all amounts
due and owing under the Notes have been paid in full.
"S&P" means Standard & Poor's Rating Service, a division of The McGraw Hill
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Companies.
"Subsidiary" shall mean (i) a corporation of which a sufficient number of
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shares of stock having ordinary voting power (other than stock having such power
only by reason of the happening of a contingency) to elect a majority of the
board of directors of such corporation are owned directly or indirectly by the
Borrower, or (ii) any partnership or other business entity, with respect to
which the Borrower or a Guarantor owns an equity interest sufficient to exercise
majority voting power over management decisions. For purposes of clause (ii)
aforesaid, neither the Borrower nor a Guarantor shall be deemed to own an equity
interest sufficient to exercise Amajority voting power over management
decisions" if certain major decisions of such partnership or other business
entity (e.g., a decision to sell property) require consent of Persons other than
the Borrower or Guarantor. For purposes of this definition, Xxxxxxxxxx
Properties Trust, a Texas real estate investment trust, shall not be deemed to
be a Subsidiary.
"Total Assets" as of any date means the sum of (i) the Undepreciated Real
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Estate Assets, and (ii) the aggregate book value of all other assets of the
Borrower and its Subsidiaries, determined on a consolidated basis in accordance
with GAAP (after deducting therefrom assets classified as Aintangible assets" in
accordance with GAAP.)
"Total Commitment" shall mean the sum of the Commitments in effect under
-----------------
this Agreement from time to time.
"Type" refers to the determination whether an Advance is a Prime Rate
----
Advance or a LIBOR Rate Advance (or a Borrowing comprised of such Advances).
"Undepreciated Real Estate Assets" as of any date means the aggregate book
---------------------------------
value, before deduction for depreciation and amortization, of Real Property
assets of the Borrower and the Subsidiaries, determined on a consolidated basis
in accordance with GAAP.
"Unimproved Real Property" shall mean Land Held For Development, as
--------------------------
reflected on the Financial Statements.
-
SECTION I.2. Accounting Terms. All accounting terms not specifically
-----------------
defined herein shall be construed in accordance with GAAP consistent with those
applied in the preparation of the financial statements referred to in Section
5.02.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION II.1. The Revolving Credit Loan. Each Bank severally agrees, on
--------------------------
the terms and conditions hereinafter set forth, to make Advances on a revolving
credit basis to the Borrower from time to time on any Business Day during the
period on and after the Effective Date hereof until the Revolving Credit
Termination Date, in an aggregate amount not to exceed at any time outstanding
an amount equal to such Bank's Commitment. Each Borrowing shall be in an
aggregate amount not less than $5,000,000 or an integral multiple of $1,000,000
in excess thereof and shall consist of Advances of the same Type made on the
same day by the Banks ratably according to their respective Commitments. Within
the limits set forth herein, until, and including, the Revolving Credit
Termination Date, the Borrower may borrow, prepay pursuant to Sections 3.02 and
3.03 and reborrow under this Section 2.01. The principal amount outstanding of
all Advances shall mature and, together with accrued and unpaid interest
thereon, shall be due and payable on the Revolving Credit Termination Date.
SECTION II.2. Making the Advances on the Revolving Credit Loan.
-------------------------------------------------------
(a) Each Borrowing shall be made on the Borrower's written notice in
the form set forth as Exhibit 2.02(a), attached hereto ("Notice of Borrowing")
-------------------
or oral notice (containing the information required in a Notice of Borrowing)
given by the Borrower to the Agent not later than 10:00 A.M. (Dallas, Texas
time) (i) on the third Business Day prior to the date of the proposed Borrowing
in the case of a LIBOR Rate Advance, and (ii) on the same Business Day of the
proposed Borrowing in the case of a Prime Rate Advance (to the extent permitted
under Section 2.06(b)). With respect to any oral Notice of Borrowing, the
Borrower shall promptly thereafter confirm such notice in writing. Each Notice
of Borrowing shall specify therein the requested (i) date of such Borrowing,
(ii) Type of Advances comprising such Borrowing, (iii) aggregate amount of such
Borrowing, and (iv) in the case of a Borrowing comprised of LIBOR Rate Advances,
the initial Interest Period for each such Advance; provided that, there shall
not be more than three (3) Interest Periods for a period of seven (7) days in
effect at any one time with respect to any Note, and no more than seven (7)
Interest Periods in effect in the aggregate at any one time with respect to any
Note. The Agent shall promptly deliver a copy of each Notice of Borrowing to
each Bank. Each Bank shall, before 11:00 A.M. (Dallas time) on the date of such
Borrowing, make available to the Agent at its address referred to in Section
10.02, in immediately available funds, such Bank's ratable portion of such
Borrowing. After the Agent's receipt from the Banks of such funds (and not prior
thereto), and upon fulfillment of the applicable conditions set forth in Article
IV, the Agent will promptly make such funds available to the Borrower at the
Agent's aforesaid address. Each Notice of Borrowing shall be irrevocable and
binding on the Borrower.
(b) The failure of any Bank to make an Advance to be made by it as part
of any Borrowing shall not relieve any other Bank of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Bank shall
be responsible for the failure of any other Bank to make the Advance to be made
by such other Bank on the date of any Borrowing.
(c) The Borrower shall execute and deliver for each Bank to evidence
the Advances made or to be made by such Bank pursuant to Section 2.01 hereof, a
promissory note (each such note a "Note" and more than one Note, the "Notes"),
---- -----
dated as of the Closing Date, in the amount of such Bank's Commitment. Each Note
shall be substantially in the form of Exhibit 2.02(c) with the blanks
appropriately filled, and shall mature on the Revolving Credit Termination Date.
SECTION II.3. INTENTIONALLY DELETED.
----------------------
SECTION II.4. INTENTIONALLY DELETED.
----------------------
SECTION II.5. Reduction of the Commitments. The Borrower shall have the
------------------------------
right, upon at least three (3) Business Days' notice to the Agent, to terminate
in whole or reduce ratably in part the unused portions of the Commitments of the
Banks, provided that each partial reduction shall be in the aggregate amount of
$5,000,000 or an integral multiple thereafter of $1,000,000. Any termination or
reduction pursuant to this Section 2.05 shall be a permanent termination or
reduction of the Commitments.
SECTION II.6. Interest. Each Advance shall bear interest at the rates set
--------
forth below, and the Borrower shall pay interest on the unpaid principal amount
of each Advance made by each Bank from the date of such Advance until such
principal amount shall be paid in full, at the times and at the rates per annum
set forth below:
(a) LIBOR Rate Advances. During such periods as such Advance is a LIBOR
-------------------
Rate Advance, a rate per annum equal at all times during each Interest Period
for such Advance to the lesser of (i) the sum of the LIBOR Rate for such
Interest Period for such Advance plus the Applicable Margin, together with
additional interest due under Section 2.07 hereof, if any, and (ii) the Highest
Lawful Rate, payable quarterly in arrears on the first day of each calendar
quarter, commencing with the calendar quarter following the calendar quarter in
which the Effective Date of this Agreement occurs, and on the Revolving Credit
Termination Date.
(b) Prime Rate Advances. During such periods as such Advance is a Prime
-------------------
Rate Advance, a rate per annum equal at all times to the lesser of (i) the Prime
Rate and (ii) the Highest Lawful Rate, payable quarterly in arrears on the first
day of each calendar quarter, commencing with the calendar quarter following the
calendar quarter in which the Effective Date of this Agreement occurs, and on
the Revolving Credit Termination Date.
(c) Interest Computations. All computations of interest hereunder at
----------------------
the Prime Rate pursuant to this Article II shall be made by the Agent on the
basis of a year of 365 or 366 days, as the case may be, and all computations of
interest hereunder at the LIBOR Rate (plus the Applicable Margin) pursuant to
this Article II shall be made by the Agent on the basis of a year of 360 days
(but if a 360 day calculation would result in a rate in excess of the Highest
Lawful Rate, then based on a year of 365 or 366 days, as the case may be), in
each case (whether for a LIBOR Rate Advance or a Prime Rate Advance) for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest is payable. Each determination
by the Agent of an interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(d) Past Due Rate. Any amount of principal which is not paid when due
--------------
(whether at stated maturity, by acceleration or otherwise) shall bear interest,
from the date on which such amount is due until such amount is paid in full,
payable on demand, at a rate per annum equal at all times to the lesser of (i)
two percent (2%) per annum above the Prime Rate in effect from time to time and
(ii) the Highest Lawful Rate.
SECTION II.7. Additional Interest on LIBOR Rate Advances. Subject to
-----------------------------------------------
Section 10.09 hereof, the Borrower shall pay to each Bank, at such time as and
so long as such Bank shall be required under regulations of the Board of
Governors of the Federal Reserve System to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each Advance of such Bank
during such periods as such Advance is a LIBOR Rate Advance, from the date of
such Advance until such principal amount is paid in full, at an interest rate
per annum, equal at all times to the remainder obtained by subtracting (a) the
LIBOR Rate for such Interest Period for such LIBOR Rate Advance from (b) the
rate obtained by dividing such LIBOR Rate by a percentage equal to 100% minus
the LIBOR Rate Reserve Percentage of such Bank for such Interest Period, payable
on each date on which interest is payable on such LIBOR Rate Advance pursuant to
Section 2.06(a) hereof. Such additional interest shall be determined by such
Bank (subject to Section 10.09) and notified to the Borrower through the Agent,
and each such notification shall be conclusive absent manifest error.
SECTION II.8. Interest Rate Determination and Protection. (a) The rate of
------------------------------------------
interest for each LIBOR Rate Advance specified in a Notice of Borrowing or a
Notice of Interest Conversion, shall be determined by the Agent two (2) Business
Days before the first day of the Interest Period applicable for such Advance.
The Agent shall give prompt notice to the Borrower and the Banks of the
applicable interest rate determined by the Agent for purposes of Section 2.06(a)
hereof, and each such determination by the Agent shall be conclusive, absent
manifest error.
(b) If, with respect to any LIBOR Rate Advances, the Majority Banks
notify the Agent that the LIBOR Rate (plus the Applicable Margin) for any
Interest Period for such Advances will not adequately reflect the cost to such
Majority Banks of making, funding or maintaining their respective LIBOR Rate
Advances for such Interest Period, the Agent shall forthwith promptly so notify
the Borrower and the Banks, whereupon;
(i) each LIBOR Rate Advance, which has been effected, will
automatically, on the last day of the then existing Interest Period therefor,
convert into a Prime Rate Advance; and
(ii) the obligation of the Banks to make, or to convert Advances into,
LIBOR Rate Advances shall be suspended until the Agent shall notify the Borrower
and the Banks that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to deliver to the Agent a Notice of
Interest Conversion in accordance with Section 2.09 hereof or to select the
duration of any subsequent Interest Period for the principal amount outstanding
under any LIBOR Rate Advance prior to the last day of the Interest Period
applicable to such Advance, the Agent will forthwith so notify the Borrower and
the Banks, and such Advances will automatically, on the last day of the then
existing Interest Period therefor, convert into LIBOR Rate Advances at the LIBOR
Rate in effect two Business Days prior to such date for an Interest Period of
one month, plus the Applicable Margin.
(d) Notwithstanding any other provision of this Agreement, if any Bank
shall notify the Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any central bank
or other governmental authority asserts that it is unlawful, for any Bank to
perform its obligations hereunder to make LIBOR Rate Advances or to fund or
maintain LIBOR Rate Advances hereunder, (i) the obligation of such Bank to make,
or to convert Advances into, LIBOR Rate Advances shall be suspended until such
Bank shall notify the Borrower and the Agent that the circumstances causing such
suspension no longer exist and (ii) the Borrower shall forthwith prepay in full
all LIBOR Rate Advances of such affected Bank then outstanding, unless the
Borrower, within two (2) Business Days of notice from the Agent, converts all
LIBOR Rate Advances of such Bank then outstanding into Prime Rate Advances in
accordance with Section 2.09.
SECTION II.9. Voluntary Interest Conversion of Advances. The Borrower may
-----------------------------------------
on any Business Day prior to the Revolving Credit Termination Date, upon the
Borrower's written notice in the form set forth as Exhibit 2.09 attached hereto
("Notice of Interest Conversion"), or oral notice (containing the information
requested in a Notice of Interest Conversion) given to the Agent not later than
10:00 A.M. (Dallas, Texas time) on the third (3rd) Business Day prior to the
date of the proposed interest conversion in the case of a LIBOR Rate Advance,
(i) convert all such LIBOR Rate Advances into Prime Rate Advances, (ii) convert
all LIBOR Rate Advances for a specified Interest Period into LIBOR Rate Advances
for a different Interest Period or (iii) convert all Prime Rate Advances into
LIBOR Rate Advances; provided however, with respect to any oral Notice of
Interest Conversion, the Borrower shall promptly confirm such notice in writing;
provided further that, any conversion of any LIBOR Rate Advances into a Prime
Rate Advance or a different Interest Period shall be made on, and only on, the
last day of an Interest Period for such LIBOR Rate Advances (unless the
provisions of Sections 2.07, 2.08(d) or 3.04 apply). Each such Notice of
Interest Conversion shall specify therein (i) the requested date of such
interest conversion, (ii) the Advances to be converted and (iii) if such
interest conversion is into Advances constituting LIBOR Rate Advances, the
duration of the Interest Period for each such Advance. The Agent shall promptly
deliver a copy of each Notice of Interest Conversion to each Bank. Each Notice
of Interest Conversion shall be irrevocable and binding on the Borrower.
SECTION II.10. Funding Losses Relating to LIBOR Rate Advances. (a) If any
----------------------------------------------
payment of principal of, or interest conversion of, any LIBOR Rate Advance is
made other than on the last day of an Interest Period relating to such Advance,
as a result of a conversion pursuant to Section 2.09, or a payment pursuant to
Sections 3.02, 3.03, or acceleration of the maturity of any Note in accordance
with the terms hereof, or for any other reason, the Borrower shall, upon demand
by the Agent or any Bank (with a copy of such demand to the Agent), pay to the
Agent for the account of such Bank any amounts required to compensate such Bank
for any additional losses, costs, or expenses which it may reasonably incur as a
result of such payment or interest conversion, including, without limitation,
any loss, cost, or expense incurred by reason of the liquidation or reemployment
of the amounts so prepaid or of deposits or other funds acquired by such Bank to
fund or maintain such Advance. Each Bank requesting compensation under this
Section 2. 10 shall deliver to the Borrower (with a copy to the Agent) a
certificate of such Bank setting forth the calculation of such amounts with
reasonable specificity and such certificate shall be conclusive, absent manifest
error.
(b) IN THE CASE OF ANY BORROWING, THE BORROWER SHALL INDEMNIFY EACH
BANK AGAINST ANY LOSS, COST, OR EXPENSE INCURRED BY SUCH BANK AS A RESULT OF ANY
FAILURE OF THE BORROWER TO FULFILL ON OR BEFORE THE DATE SPECIFIED IN A NOTICE
OF BORROWING THE APPLICABLE CONDITIONS SET FORTH IN ARTICLE IV, INCLUDING,
WITHOUT LIMITATION, ANY LOSS, COST, OR EXPENSE INCURRED BY REASON OF THE
LIQUIDATION OR REEMPLOYMENT OF THE AMOUNTS SO PREPAID OR OF DEPOSITS OR OTHER
FUNDS ACQUIRED BY SUCH BANK TO FUND THE ADVANCE TO BE MADE BY SUCH BANK AS PART
OF SUCH BORROWING WHEN SUCH ADVANCE, AS A RESULT OF SUCH FAILURE, IS NOT MADE ON
SUCH DATE.
(c) Any Bank demanding payment under this Section 2.10 shall deliver
to the Borrower and the Agent a statement reasonably setting forth the amount
and manner of determining such loss, cost, or expense, which statement shall be
conclusive and binding for all purposes, absent manifest error.
ARTICLE III
PAYMENTS, PREPAYMENTS,
INCREASED COSTS AND TAXES
SECTION III.1. Payments and Computations. (a) The Borrower shall
----------------------------
make each payment under this Agreement and under the Notes not later than 10:00
A.M. (Dallas time) on the day when due in U.S. dollars to the Agent at its
address referred to in Section 10.02 in immediately available funds. The Agent
will promptly thereafter cause to be distributed like funds relating to the
payment of principal or interest or commitment fees (to the extent received by
the Agent) ratably to the Banks, and like funds relating to the payment of any
other amount payable to any Bank (to the extent received by the Agent) to such
Bank in each case to be applied in accordance with the terms of this Agreement.
(b) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fee, as the case may be;
provided however, if such extension would cause payment of interest on or
principal of LIBOR Rate Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business Day; further
provided that, the foregoing shall not obligate the Borrower to pay amounts
under Section 2.10.
(c) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Banks hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent the
Borrower shall not have so made such payment in full to the Agent, each Bank
shall repay to the Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Agent, at the lesser of (i) the Prime Rate or (ii) the Highest Lawful Rate.
SECTION III.2. Voluntary Prepayments. Subject to Section 2.10, the Borrower
----------------------
may, upon notice delivered to the Agent prior to 11:00 A.M. (Dallas, Texas time)
on any Business Day prior to the Revolving Credit Termination Date stating the
aggregate principal amount of the prepayment and the Advances to be prepaid,
prepay the outstanding principal amounts of such Advances comprising part of the
same Borrowing in whole or ratably in part, provided however, that all such
--------
prepayments shall be made without premium or penalty thereon; and provided
--------
further that, losses incurred by any Bank under Section 2.10 shall be payable
with respect to each such prepayment. Such notice shall be irrevocable and the
payment amount specified in such notice shall be due and payable on the
prepayment date described in such notice. Partial prepayments with respect to
any Advance shall be in an aggregate principal amount equal to the lesser of (a)
$1,000,000 or in greater integral multiples of $1,000,000, or (b) the aggregate
principal amount of Advances of such Banks outstanding. In the event that the
Borrower fails to notify the Agent as to which Advance is to be prepaid, the
partial prepayments shall be applied in the order of the next succeeding
expiration of outstanding Interest Periods.
SECTION III.3. Mandatory Prepayments. Within the time period specified in
---------------------
Section 7.04, the Borrower shall deliver to the Agent, as a prepayment on the
Notes, an amount equal to the Adjusted Net Proceeds of a disposition of Real
Property of the Borrower or any Subsidiary permitted under Section 7.04;
provided, however, such delivery of the Adjusted Net Proceeds shall only be
required to the extent of any Adjusted Net Proceeds not delivered pursuant to
that certain Amended and Restated Credit Agreement dated November 21, 1996, by
and among the Borrower, Chase Bank of Texas, N.A., as Agent for itself and the
other banks named thereon. Upon receipt of such amount, the Agent shall
promptly deliver to each Bank, to the extent required under Section 7.04, its
Pro Rata Percentage of such prepayment. Upon the date on which a prepayment is
required under Section 7.04, the Commitment of each Bank shall be permanently
reduced in an amount equal to such Bank's Pro Rata Percentage of such Adjusted
Net Proceeds.
SECTION III.4. Increased Costs Capital Adequacy. (a) If, due to either (i)
--------------------------------
the introduction of or any change (other than any change by way of imposition or
increase of reserve requirements, in the case of LIBOR Rate Advances, included
in the LIBOR Rate Reserve Percentage) in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Bank of agreeing to make or
making, funding or maintaining LIBOR Rate Advances (without duplication of
payments made under Section 3.05 or any other provision of this Agreement), then
the Borrower shall from time to time, upon demand by such Bank (with a copy of
such demand to the Agent), pay to the Agent for the account of such Bank
additional amounts sufficient to compensate such Bank for such increased cost;
provided that the Borrower shall only be liable for such additional costs
incurred by such Bank for the period commencing thirty (30) days after the date
of notice from such Bank to the Borrower of such additional amounts; and
provided further, that subject to Section 2. 10, the Borrower may elect to
convert outstanding LIBOR Rate Advances into Prime Rate Advances, in accordance
with Section 2.09.
(b) If any Bank determines that compliance with any law or regulation or any
guideline or request from any central bank or other governmental authority,
enacted after the date of this Agreement, or any new interpretation of an
existing law, regulation, guideline or request (whether or not having the force
of law) affects or would affect the amount of capital required or expected to be
maintained by such Bank or any corporation controlling such Bank and that the
amount of such capital is increased by or based upon the existence of such
Bank's Commitment to lend hereunder and other commitments of this type, then,
upon demand by such Bank (with a copy of such demand to the Agent), the Borrower
shall pay to the Agent for the account of such Bank, from time to time as
specified by such Bank, additional amounts sufficient to compensate such Bank or
such corporation in the light of such circumstances for such increased capital
requirement; provided that the Borrower shall only be liable for such additional
costs incurred by such Bank for the period commencing thirty (30) days after the
date of notice from such Bank to the Borrower of such additional amounts; and
provided further, that subject to Section 2.10, the Borrower may elect to
convert outstanding LIBOR Rate Advances into Prime Rate Advances in accordance
with Section 2.09.
SECTION III.5. Taxes (a) Any and all payments by the Borrower hereunder
-----
or under the Notes shall be made, in accordance with Section 3.01, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Bank and the Agent, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction under the laws of
which such Bank or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Bank, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction of such Bank or any
political subdivision thereof. If the Borrower shall be required by law to
deduct any such amounts from or in respect of any sum payable hereunder or under
any Note to any Bank or the Agent, (i) the sum payable shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.05) such Bank or the
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law. The Borrower further agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under the Notes or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement or the Notes.
(b) Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in this
Section 3.05 shall survive the payment in full of principal and interest
hereunder and under the Notes.
SECTION III.6. Certificate of Bank. Any Bank demanding compensation under
---------------------
Section 3.04 or 3.05 shall deliver to the Borrower and the Agent a statement
reasonably setting forth the amount and manner of determining such loss, cost or
expense, which statement shall be conclusive and binding for all purposes,
absent manifest error.
ARTICLE IV
CONDITIONS OF LENDING
SECTION IV.1. Conditions Precedent to Initial Advances. The obligation of
----------------------------------------
each Bank to make its initial Advance on or after the date of this Agreement is
subject to the condition precedent that the Agent shall have received (or the
actions described below shall have occurred, as the case may be), the following,
in form and substance satisfactory to the Agent and (except for the Notes) in
sufficient copies for each Bank:
(a) The Notes, duly executed by the Borrower and payable to the order
of the Banks, respectively.
(b) This Agreement, duly executed by the Borrower.
(c) A Guaranty Agreement duly executed by each Guarantor.
(d) A certificate of the Secretary of the Borrower certifying (i) the names
and true signatures of the officers of the Borrower authorized to sign each Loan
Document to which the Borrower is a party and the notices and other documents to
be delivered by the Borrower pursuant to any-such Loan Document; (ii) the
Restated Declaration of Trust dated March 23, 1988, together with any amendments
thereto, (the "Organizational Documents") of the Borrower as in effect on the
-------------------------
date of such certification; and (iii) the resolutions of the Board of Trust
Managers of the Borrower approving and authorizing the execution, delivery, and
performance by the Borrower of each Loan Document to which the Borrower is a
party, the notices and other documents to be delivered by the Borrower pursuant
to any such Loan Document, and the transactions contemplated thereunder.
(e) A certificate of the Secretary of each Guarantor certifying (i) the
names and true signatures of the officers of such Guarantor authorized to sign
each Loan Document to which such Guarantor is a party and the notices and other
documents to be delivered by such Guarantor pursuant to any such Loan Document;
(ii) the By-laws and Articles of Incorporation of such Guarantor as in effect on
the date of such certification; and (iii) the resolutions of the Board of
Directors of such Guarantor approving and authorizing the execution, delivery,
and performance by such Guarantor of each Loan Document to which each such
Guarantor is a party, the notices and other documents to be delivered by such
Guarantor pursuant to any such Loan Document, and ihe transactions contemplated
thereunder.
(f) Subject to Section 6.08, certificates of appropriate officials as to the
existence and good standing of each of the Borrower and each Guarantor in its
jurisdiction of organization or incorporation, and any and all other
jurisdictions where the Property owned or the business transacted by each of the
Borrower and each Guarantor requires each of the Borrower and each Guarantor to
be qualified therein and where the failure to be so qualified would have a
material adverse effect on the business operations or financial condition of the
Borrower and the Guarantors, taken as a whole.
(g) A favorable opinion of Dow, Xxxxxxx & Xxxxxxxx, P.C., counsel for the
Borrower and the Guarantors, in form and substance satisfactory to the Banks.
(h) Payment to the Agent of all fees and expenses payable at Closing,
including, without limitation, fees of counsel to the Agent and the Banks
payable under Section 10.04.
(i) Such other documents and instruments with respect to the transactions
contemplated hereby as the Agent may reasonably request.
SECTION IV.2. Conditions Precedent to Each Borrowing. The obligation of each
----------------------------------------
Bank to make an Advance under the Revolving Credit Loan on the occasion of each
Borrowing (including the initial Borrowing) shall be subject to the further
conditions precedent that on the date of such Borrowing (a) the Agent shall have
received a Notice of Borrowing in accordance with the terms of this Agreement
and (b) the following statements shall be true and correct (and each of the
giving of the applicable Notice of Borrowing, and the acceptance by the Borrower
of the proceeds of such Borrowing, shall constitute a representation and
warranty by the Borrower that on the date of such Borrowing such statements are
true and correct):
(a) The representations and warranties contained in Article V of this
Agreement are true and correct in all material respects on and as of the date of
such Borrowing, before and after giving effect to such Borrowing, and to the
application of the proceeds therefrom, as though made on and as of such date,
and
(b) No event has occurred and is continuing, or would result from such
Borrowing or from the application of the proceeds therefrom, which constitutes
(or would constitute) a Default or an Event of Default.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Agreement, the Borrower
represents and warrants to the Banks (which representations and warranties will
survive the delivery of any Note and the making of any Advance that:
SECTION V.1. Existence. The Borrower (a) is a real estate investment trust
---------
duly organized under the Texas Real Estate Investment Trust Act, Tex. Rev. Civ.
Stat. Xxx. art. 6138A (Xxxxxx 1986) (the "Act'), and in good standing under the
Act and the laws of the State of Texas, (b) has the power to own its Property
and to carry on its business as now conducted, and (c) is duly qualified to do
business and is in good standing in every jurisdiction where such qualification
is necessary. Each Subsidiary of the Borrower (x) is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
incorporated, (y) has the power to own its property and carry on its business as
now conducted, and (z) is duly qualified to do business and is in good standing
in every jurisdiction in which such qualification is necessary, and where the
failure to be so qualified or in good standing would have a material adverse
effect on the business operations or financial condition of the Borrower and its
Subsidiaries, taken as a whole. The Subsidiaries of the Borrower, and the
jurisdiction of organization of each such Subsidiary, are set forth on Exhibit
-------
5.01, hereto.
---
SECTION V.2. Financial Condition. The Borrower has furnished the Bank with
--------------------
consolidated financial statements as at and for the twelve-month period ended
December 31, 1998, accompanied by the opinion of Deloitte & Touche, and
quarterly unaudited consolidated financial statements as at and for the
three-month periods ending March 31, 1999, June 30, 1999, and September 30,
1999. These statements are true and correct and have been prepared in
conformity with GAAP consistently followed throughout the periods involved. They
fully and accurately reflect the financial condition of the Borrower and its
Subsidiaries and the results of their operations as at the date and for the
period indicated.
SECTION V.3. Use of Proceeds Margin Stock. Neither the Borrower nor any
--------------------------------
Subsidiary owns any Margin Stock. The proceeds of the Loans shall be used for
general trust purposes. None of the proceeds of Borrowings hereunder will be
used 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 a Margin Stock or for any other purpose which might
constitute this transaction a Apurpose" credit within the meaning of said
Regulation U, as now in effect or as it may hereafter be amended. Neither the
Borrower nor any Subsidiary nor any agent acting on its or their behalf has
taken or will take any action which might cause this Agreement or any Advance to
violate Regulation T, 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 in effect now or as the same may hereafter be in effect on the
date of any Borrowing hereunder.
SECTION V.4. Binding Obligations. The Borrower has the power and authority
-------------------
under the Act to make and carry out this Agreement, to make the borrowings
provided for herein, to execute and deliver the Notes, and to perform its
obligations hereunder and under the Notes; and all such action has been duly
authorized by all necessary proceedings on its part. Each Subsidiary which is a
party to a Guaranty Agreement has the power and authority to perform its
obligations in accordance with the terms and conditions of the Guaranty
Agreement to which it is a party, and all such action has been duly authorized
by all necessary proceedings on its part. Each of this Agreement and the Notes
have been duly and validly executed and delivered by the Borrower and constitute
a valid and legally binding obligation of the Borrower enforceable in accordance
with its terms, and the Guaranty Agreements have been duly executed and
delivered by the Guarantors and constitute valid and legally binding obligations
of each such Guarantor enforceable in accordance with the respective terms
thereof and of this Agreement, except as limited by Debtor Laws.
SECTION V.5. No Conflict or Resultant Lien. The execution, delivery, and
---------------------------------
performance by the Borrower and each Subsidiary of each Loan Document to which
it is a party, the Borrowings hereunder by the Borrower as contemplated herein,
and the effectuation of the transactions contemplated by any Loan Document, do
not and will not violate any provision of, or result in a default under, the
Borrower's Organizational Documents, or the Articles of Incorporation or other
charter documents or by-laws of any Subsidiary, or any material agreement to
which the Borrower or such Subsidiary is a party, or Governmental Requirement to
which the Borrower or such Subsidiary is subject, or result in the creation or
imposition of any Lien upon any Property of the Borrower or such Subsidiary.
SECTION V.6. Compliance with Other Agreements. Neither the Borrower nor any
-----------------------------------
Subsidiary is in default in any material respect under any Governmental
Requirement. Neither the Borrower nor any Subsidiary is in default under any
other agreement, which default could have a material adverse effect on the
business, operations or financial condition of the Borrower and its
Subsidiaries, taken as a whole, or the ability of the Borrower or any Guarantor
to perform its obligations under this Agreement or any other Loan Document to
which it is a party.
SECTION V.7. No Consent. No authorization or approval or other action by, and no
----------
notice to or filing with, any Person or any Governmental Authority is required
for the due execution, delivery, and performance by each of the Borrower or any
Subsidiary of any Loan Document to which it is a party or the Borrowings
hereunder, in each case as contemplated herein, or the effectuation of the
transactions contemplated under any Loan Document.
SECTION V.8. Litigation. Except as described on Exhibit 5.08, attached hereto or
----------
as disclosed in any Compliance Certificate, there are no material actions,
suits, or proceedings pending or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any Subsidiary, or the Properties of the
Borrower or any Subsidiary.
SECTION V.9. Taxes; Governmental Charges. The Borrower and each Subsidiary has
----------------------------
filed or caused to be filed all federal, state, and foreign income tax returns
which are required to be filed, and has paid or caused to be paid all taxes as
shown on such returns or on any assessment received by it to the extent that
such taxes have become due and payable, except for such taxes and assessments as
are being contested in good faith in appropriate proceedings and reserved for in
accordance with GAAP in the manner required by Section 6.04.
SECTION V.10. Full Disclosure. All information furnished by or on behalf of
---------------
the Borrower or any Subsidiary to the Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is true
and accurate in all material respects and not incomplete by omitting to state
any material fact necessary to make such information not misleading. There is no
material fact relevant to this Agreement or the transactions contemplated by
this Agreement known to the Borrower which has not been disclosed herein or in
such other written documents, information or certificates furnished to the Agent
and the Banks for use in connection with the transactions contemplated hereby.
SECTION V.11. Investment Company Act. Neither the Borrower nor any Subsidiary is
----------------------
an Ainvestment company" or a company Acontrolled" by an Ainvestment company",
within the meaning of the Investment Company Act of 1940, as amended.
SECTION V.12. Compliance with Law. Except as disclosed in any Compliance
---------------------
Certificate and approved by the Banks, the business and operations of the
Borrower and each Subsidiary as conducted at all times have been and are in
compliance in all material respects with all applicable Governmental
Requirements.
SECTION V.13. ERISA. Each of the Borrower and each Subsidiary is in compliance
-----
in all material respects with all applicable provisions of ERISA and the Code
with respect to each Plan, including the fiduciary provisions thereof, and each
Plan is, and has been, maintained in material compliance with ERISA and, where
applicable, the Code. Full payment when due has been made of all material
amounts which the Borrower or any Subsidiary is required under the terms of each
Plan or applicable law to have paid as contributions to such Plan as of the date
hereof. For purposes of this Section 5.13, the term Amaterial" shall mean a
liability in excess of $10,000,000.
SECTION V.14. No Default or Event of Default. No Default or Event of Default
--------------------------------
hereunder has occurred and is continuing.
SECTION V.15. Permits and Licenses. All material permits, licenses and other
----------------------
governmental authorizations necessary for the Borrower or any Subsidiary to
carry on its business have been obtained and are in full force and effect and
neither the Borrower nor any Subsidiary is in breach of the foregoing. Each of
the Borrower and each Subsidiary owns or possesses adequate licenses or other
valid rights to use United States trademarks, trade names, service marks,
copyrights, patents and applications therefor which are necessary for the
conduct of the business, operations or financial condition of the Borrower or
such Subsidiary.
SECTION V.16. Insurance. Each of the Borrower and each Subsidiary maintains
---------
insurance of such types as is usually carried by companies of established
reputation engaged in the same or similar business and which are similarly
situated with financially sound and reputable insurance companies and
associations acceptable to the Agent, with a rating of at least A-, financial
size category, Class VI as set forth in Best's Key Rating Guide, published by
A.M. Best Company, Inc., and in such amounts as such insurance is usually
carried by similar businesses, and in any event, in compliance with the
requirements of Section 6.03. If the rating of any insurance company or
association is or becomes below the aforesaid minimum requirements, then
Borrower and its Subsidiaries shall have 45 days to secure (i) an appropriate
reinsurance or other endorsement which will satisfy the aforesaid minimum
standards, or (ii) secure replacement insurance coverage satisfying the
aforesaid minimum standards.
All representations and warranties in each Loan Document shall survive the
delivery of the Notes and shall continue for 366 days after the repayment of the
Notes; any investigation at any time made by or on behalf of the Agent or any
Bank shall not diminish any Bank's right to rely thereon.
ARTICLE VI
AFFIRMATIVE COVENANTS OF THE BORROWER
So long as any Note shall remain unpaid or any Bank shall have any
Commitment hereunder, the Borrower covenants and agrees that:
SECTION VI.1. Reporting and Notice Requirements. The Borrower will furnish to
---------------------------------
each Bank, with respect to items described in Subsections (a), (b), (c) and (f),
and to the Agent for delivery to the Banks, with respect to all other items:
(a) Quarterly Financial Statements. As soon as available and in any
--------------------------------
event within forty-five (45) days after the end of each fiscal quarter of the
Borrower (excluding the fourth quarter), Financial Statements of the Borrower
and its Subsidiaries as of the end of such quarter.
(b) Annual Financial Statements. As soon as available and in any event
-----------------------------
within ninety (90) days after the end of each fiscal year of the Borrower,
Financial Statements of the Borrower and its Subsidiaries for such fiscal year.
(c) Compliance Certificate. Together with and at the time of the delivery of
----------------------
any information required by Subsection (a) and Subsection (b) of this Section
6.01, a certificate (a "Compliance Certificate") substantially in the form of
Exhibit 6.01(c), attached hereto, signed by a Responsible Officer, (i) stating
that there exists no Event of Default or Default, or if any Event of Default or
Default exists, specifying the nature thereof, the period of existence thereof,
and what action the Borrower proposes to take with respect thereto; (ii) setting
forth the credit rating assigned to the Borrower's senior-unsecured, long-term
debt by S&P as of the date of the Compliance Certificate, and as of the date of
delivery of such Financial Statements; and (iii) setting forth with reasonable
specificity such schedules, computations and other information as may be
required to demonstrate that the Borrower is in compliance with its covenants in
Sections 7.02, 7.03, 7.04, 7.07, 7.10, 7.13, 7.15 and 7.17 hereof.
(d) Notice of Default. Promptly after any Responsible Officer of the
-------------------
Borrower knows or has reason to know that any Default or Event of Default has
occurred, a written statement of a Responsible Officer of the Borrower setting
forth the details of such Default or Event of Default and the action which the
Borrower has taken or proposes to take with respect thereto.
(e) Notice of Litigation. Together with and at the time of the delivery
--------------------
of information required by Subsection (a) or (b), notice of any litigation,
legal, administrative, or arbitral proceeding, investigation, or other action of
any nature which involves a claim (or a series of related claims in the
aggregate) for an amount equal to or exceeding $5,000,000, or, promptly after
any Responsible Officer of the Borrower or any Subsidiary obtaining knowledge of
the commencement thereof, notice of any litigation, legal, administrative or
arbitral proceeding, investigation or other action of any nature which involves
the reasonable possibility, if adversely determined, in the judgment of the
Borrower, of a judgment in excess of $1,000,000 which has not been stayed, or
other liability, in each case which could have a material adverse effect on the
business, operations or financial condition of the Borrower and its
Subsidiaries, taken as a whole, or on the ability of the Borrower or any
Subsidiary to perform its obligations under this Agreement or any other Loan
Document to which it is a party, and upon request by the Agent or any Bank,
details regarding such litigation which are satisfactory to the Agent or such
Bank.
(f) Securities Filings. Promptly after the sending or filing thereof and in
-------------------
any event within fifteen (15) days thereof, copies of all reports which the
Borrower sends to any of its security holders, and copies of all reports
(including each regular and periodic report, but without duplication of
Financial Statements provided in accordance with Sections 6.01 (a) and (b)) and
each registration statement or prospectus which the Borrower or any Subsidiary
files with the Securities and Exchange Commission or any national securities
exchange.
(g) ERISA Notices. The Borrower will and will cause its ERISA Affiliates to
--------------
obtain and deliver to the Agent, as soon as possible and in any event within 10
days from receipt, or if applicable, filing, copies of any reports, notices or
filings which the Borrower or an ERISA Affiliate files with the Internal Revenue
Service, PBGC or the United States Department of Labor with respect to an ERISA
Event or which the Borrower or an ERISA Affiliate receives from such
Governmental Authority relating to an ERISA Event, and copies of any notice,
complaint or other documentation of any pending or threatened lawsuit or claim
relating to any Plan or Multiemployer Plan which may have a material adverse
effect on the Borrower or an ERISA Affiliate, taken as a whole.
(h) Rating Certificate. Promptly upon the Borrower's knowledge of or
-------------------
notification (i) by S&P or Xxxxx'x that the credit rating assigned to
senior-unsecured, long-term debt of the Borrower by S&P or Xxxxx'x, as the case
may be, has changed from the rating set forth in the most recent Compliance
Certificate delivered in accordance with Section 6.01(c), or (ii) by any other
nationally recognized rating agency that the Borrower's senior unsecured,
long-term debt has been assigned a credit rating, or that subsequent to such
assignment, such credit rating has been changed, the Borrower will notify the
Agent in writing of the occurrence of such event, and if a notice has been
received by the Borrower from S&P, Xxxxx'x or such other rating agency, shall
provide to the Agent a copy of such notice (each such notice provided hereunder,
a "Rating Certificate").
(i) Other Information. Such other information respecting the condition
------------------
or operations, financial or otherwise, of the Borrower or any of its
Subsidiaries as any Bank through the Agent may from time to time reasonably
request.
SECTION VI.2. Maintenance. The Borrower will, and will cause each of its
-----------
Subsidiaries to, (a) at all times do or cause to be done all things necessary to
maintain, preserve and renew its existence as a real estate investment trust
under the Act or its corporate existence, as the case may be, and its rights and
franchises, and comply with all governmental laws, rules, regulations or rulings
with respect thereto; provided, however, that nothing contained in this Section
6.02 or any other provision of this Agreement shall (i) require the Borrower or
any of its Subsidiaries to comply with any such governmental laws, rules,
regulations or rulings, so long as the validity or applicability thereof shall
be contested in good faith by appropriate proceedings and any such failure to
comply could not reasonably be anticipated to have a material adverse effect on
the business, operations or financial condition of the Borrower and its
Subsidiaries taken as a whole on a consolidated basis, or the ability of the
Borrower or such Subsidiary to perform its obligations under this Agreement or
any other Loan Document; or (ii) require the Borrower or any of its Subsidiaries
to maintain, preserve or renew any right or franchise not necessary or desirable
in the conduct of its business as determined in good faith by Borrower's Trust
Managers or Board of Directors, as the case may be, and (b) except for planned
demolition of Real Property or Property subject to a direct financing lease (as
reflected on the Financial Statements), for the purpose of increasing its
ultimate value, at all times maintain, preserve, protect and keep or cause to be
maintained, preserved, protected and kept its Property in good repair, working
order and condition (ordinary wear and tear excepted) and, from time to time,
will make or cause to be made all repairs, renewals, replacements, extensions,
additions, betterments and improvements to its Property as are appropriate, so
that (i) each of the Borrower and its Subsidiaries maintains its current line of
business and (ii) the business carried on in connection therewith may be
conducted properly and efficiently at all times.
SECTION VI.3. Insurance. The Borrower will, and will cause each of its
---------
Subsidiaries to, keep its Property insured against loss or damage by fire and
other hazards with extended coverage and as is otherwise usually carried by
companies of established reputation engaged in the same or similar business
which are similarly situated, and in such amounts as such insurance is usually
carried by such similar businesses. Such policy or policies shall be
satisfactory in form and substance to the Banks, with the premiums thereon fully
paid in advance, issued by and binding upon financially sound and reputable
insurance companies and associations acceptable to the Agent, with a rating of
at least A-, financial size category, Class VI as set forth in Best's Key Rating
Guide, published by A.M. Best Company, Inc., and providing for at least fifteen
(15) days written notice to the Agent of cancellation, failure to renew or other
material change in such policy or policies. If the rating of any insurance
company or association is or becomes below the aforesaid minimum requirements,
then Borrower and its Subsidiaries shall have 45 days to secure (i) an
appropriate reinsurance or other endorsement which will satisfy the aforesaid
minimum standards, or (ii) secure replacement insurance coverage satisfying the
aforesaid minimum standards.
SECTION VI.4. Taxes and Other Claims. The Borrower will, and will cause
------------------------
each of its Subsidiaries to, duly pay and discharge, as the same become due and
payable, all of its taxes (including without limitation all federal and state
income taxes, ad valorem taxes, sales taxes, use taxes, occupational taxes,
franchise taxes, withholding taxes, severance taxes, excise taxes and
manufacturing taxes) and assessments, and all claims and charges of any
Governmental Authority or any other Person levied or imposed, or which if unpaid
might become a Lien or charge, upon the franchises, assets, earnings or
businesses of the Borrower or any of its Subsidiaries, as the case may be;
provided, however, that nothing contained in this Section 6.04 shall require the
Borrower or any of its Subsidiaries to pay any such tax, assessment, charge or
claim so long as the validity thereof shall be contested in good faith by
appropriate proceedings and the Borrower or any such Subsidiary shall set aside
on its books adequate reserves with respect thereto if required by GAAP.
SECTION VI.5. Rights of Inspection. From time to time upon reasonable notice to
--------------------
the Borrower, the Borrower will, and will cause each Subsidiary to, permit any
officer, or employee of, or agent designated by, the Agent or any Bank to visit
and inspect any of the Properties of the Borrower or any Subsidiary, examine the
Borrower's or such Subsidiary's corporate books or financial records, take
copies and extracts therefrom, and discuss the affairs, finances, and accounts
of the Borrower or any Subsidiary with the Borrower's or such Subsidiary's
officers or certified public accountants, all as often as the Agent or any Bank
may reasonably desire.
SECTION VI.6. Guarantees of Subsidiaries. In the event that the Borrower shall
--------------------------
at any time acquire or create a new Subsidiary all of the stock of which is 100%
owned by the Borrower, the Borrower shall immediately cause such Subsidiary to
provide to the Agent for the benefit of the Banks a guaranty of the obligations
of the Borrower under this Agreement which shall be in the form attached hereto
as Exhibit 1.01-A; provided that, it shall not constitute a Default hereunder if
--------------
such new Subsidiary does not provide such Guaranty Agreement until the date
required for delivery of the Compliance Certificate in accordance with Section
6.01(c); and provided further compliance of the Borrower with the provisions of
this Section 6.06 are hereby waived with respect to the requirements (i) of a
guaranty to be executed by Central Plaza for the period from the Effective Date
and the date on which the Xxxxxx Loan (Series 1995) is paid in full; and (ii) of
a guaranty to be executed by Xxxx Plaza for the period from the Effective Date
and the date on which the Xxxxxx Loan (Series 1996) is paid in full. It is
agreed and understood that the obligation of the Borrower under this Section
6.06 to cause any such Subsidiary to provide to the Agent for the benefit of the
Banks a guaranty is a condition precedent to the making of the Advances pursuant
to this Agreement and that the entry into this Agreement by the Banks
constitutes good and adequate consideration for the provision of such guaranty.
SECTION VI.7. Compliance with Law. The Borrower will, and will cause each of its
-------------------
Subsidiaries to, comply in all material respects with all laws, rules,
regulations and rulings of all Govemmental Authority having jurisdiction in
respect of the conduct of its business and the ownership of its Property.
SECTION VI.8. Delivery of Certain Certificates. The Borrower agrees that to the
--------------------------------
extent it was unable to provide certificates required under Section 4.01(e) and
Section 4.01(f) on or before the Closing Date for any Subsidiary, after using
its best efforts to obtain the same, all such certificates shall be provided to
the Agent, on behalf of the Banks, on or before the forty-fifth (45th) day after
the Closing Date.
SECTION VI.9. Payment of Net Income of Central Plaza to the Borrower.
----------------------------------------------------------
Notwithstanding anything herein to the contrary, the Borrower shall cause
WRI/Central Plaza, Inc., a Texas corporation and a wholly-owned Subsidiary of
the Borrower ("Central Plaza"), to dividend or otherwise transfer all net income
of Central Plaza to the Borrower to the extent not prohibited under the
documents as in effect on March 6, 1998 evidencing, securing, guaranteeing or
otherwise related to the mortgage loan assumed by Central Plaza in connection
with the acquisition of the shopping center (the "Central Plaza Shopping
Center") located at the intersection of Slide Road and Loop 259 in Lubbock,
Texas, which mortgage loan was in the original principal amount of $4,200,000,
is held as part of a collateralized mortgage pool with the current holder being
State Street Bank & Trust as trustee for XX Xxxxxx Commercial Mortgage Finance
Corp. Mortgage Pass-Through Certificates, Series 1995-C1 and matures January 2,
2002 (the "Xxxxxx Loan (Series 1995)").
SECTION VI.10. Payment of Net Income of Xxxx Plaza to the Borrower.
------------------------------------------------------------
Notwithstanding anything herein to the contrary, the Borrower shall cause
WRI/Xxxx Plaza, Inc., a Texas corporation and a wholly-owned Subsidiary of the
Borrower ("Xxxx Plaza"), to dividend or otherwise transfer all net income of
Xxxx Plaza to the Borrower to the extent not prohibited under the documents as
in effect on June 14, 1999 evidencing, securing, guaranteeing or otherwise
related to the mortgage loan assumed by Xxxx Plaza in connection with the
acquisition of the shopping center (the "Xxxx Plaza Shopping Center") located at
the intersection of 45th and Xxxx in Amarillo, Texas, which mortgage loan was in
the original principal amount of $3,300,000, is held as part of a collateralized
mortgage pool with the current holder being State Street Bank & Trust as trustee
for XX Xxxxxx Commercial Mortgage Finance Corp. Mortgage Pass-Through
Certificates, Series 1996-C2 and matures July 1, 2002 (the "Xxxxxx Loan (Series
1996)").
ARTICLE VII
NEGATIVE COVENANTS
So long as any Note shall remain unpaid or any Bank shall have any
Commitment hereunder, the Borrower covenants and agrees that:
SECTION VII.1. Liens, Etc. The Borrower will not grant, permit, create or suffer
----------
to exist, and will not permit any Subsidiary to grant, permit create or suffer
to exist, any Lien, upon or with respect to any of its Properties, whether now
owned or hereafter acquired, or assign, or permit any of its Subsidiaries to
assign, any right to receive income, in each case to secure or provide for the
payment of any Debt of any Person, other than:
(a) Permitted Liens; or
(b) Liens which do not violate the covenants contained in Section 7.02(b)
hereof.
SECTION VII.2. Limitation on Incurrence of Debt. (a) The Borrower will not,
--------------------------------
and will not permit any Subsidiary to, incur any Debt if prior to incurrence of
such Debt, but after giving effect to the incurrence of such Debt and the
application of the proceeds thereof, the aggregate principal amount of all
outstanding Debt of the Borrower and its Subsidiaries is greater than 55% of the
Total Assets, determined as at the last day of the most recent preceding
calendar year or calendar quarter, as the case may be, as reflected in the
Financial Statements of the Borrower most recently provided under Sections 6.01
(a) or (b).
(b) The Borrower will not, and will not permit any Subsidiary to, incur any
Debt secured by any Lien upon any Property of the Borrower or any Subsidiary if,
prior to occurrence of such Debt, but after giving effect to the incurrence of
such Debt and the application of the proceeds thereof, the aggregate principal
amount of all outstanding Debt of the Borrower and its Subsidiaries which is
secured by a Lien on Property of the Borrower or any Subsidiary is greater than
40% of Total Assets, determined as at the last day of the most recent preceding
calendar year or calendar quarter, as the case may be, as reflected in Financial
Statements of the Borrower most recently provided under Sections 6.01 (a) or
(b).
(c) For purposes of this Section 7.02, the term (i) "Total Assets" does not
include securities issued or unconditionally guaranteed by the United States
government or an agency thereof or by the Federal National Mortgage Association
which secure a repurchase agreement with a financial institution, entered into
in the ordinary course of business by the Borrower or any Subsidiary, and (ii)
"Debt" does not include obligations under any such repurchase agreement or
indebtedness of the Borrower or any Subsidiary owed to a financial institution,
which is secured by governmental securities described in clause (i) hereof,
owned by the Borrower or such Subsidiary, entered into in the ordinary course of
business (a Areverse repurchase agreement") provided that in the case of
transactions described in clauses (i) and (ii) hereof, the market value of such
governmental securities is at all times equal at least to the principal amount
of such repurchase agreement or reverse repurchase agreement.
SECTION VII.3. Unimproved Real Property. The Borrower will not permit Unimproved
-------------------------
Real Property to exceed 12.5% of Undepreciated Real Estate Assets.
SECTION VII.4. Sale or Other Disposition of Real Property. The Borrower will not
------------------------------------------
and will not permit its Subsidiaries to, sell, dispose of or otherwise transfer
(including, without limitation, a sale-leaseback) (a) Real Property of the
Borrower or any Subsidiary with an aggregate book value in any twelve-month
period, ending on the last day of the month in which such disposition occurs (or
if shorter, for the period from the Closing Date to such day), for all such
dispositions (after giving effect to such disposition), greater than 10% of the
Undepreciated Real Estate Assets as of the last day of the preceding calendar
quarter, or (b) Real Property of the Borrower or any Subsidiary with a
cumulative aggregate book value in any thirty-six month period, ending on the
last day of the month in which such disposition occurs (or if shorter, for the
period from the Closing Date to such day), for all such dispositions (after
giving effect to such disposition) greater than 15% of the Undepreciated Real
Estate Assets as of the last day of the preceding calendar quarter, unless, on
the date on which the next Compliance Certificate is required to be delivered in
accordance with Section 6.01(c), the Borrower shall have delivered to the Agent
the excess of Net Proceeds of such disposition over such applicable percentage
amounts of the Undepreciated Real Estate Assets, respectively (herein referred
to as the "Adjusted Net Proceeds") as a prepayment on the Notes, in accordance
with Section 3.03. For purposes of this Section 7.04, neither a lease of
property (nor the existence of a financing lease) nor creation of a Lien on such
property in the ordinary course of business, shall be deemed to be a disposition
of such property.
SECTION VII.5. Mergers: Consolidation. Except as permitted under Section
-----------------------
7.06(f), the Borrower will not, and will not permit any Subsidiary to, merge or
consolidate with or into any other Person, or convey, transfer or otherwise
dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired);
provided that (a) subject to the limitations of Section 7.06(f), the Borrower
---
may merge or consolidate with or into, or acquire all or substantially all of
the assets or capital stock of any other Person, so long as the Borrower is the
survivor thereof, and (b) any Subsidiary may merge or consolidate with or into,
or acquire all or substantially all of the assets or capital stock of, (i) any
other Subsidiary, so long as, if either such Subsidiary is a Guarantor, a
Guarantor is the survivor thereof, and (ii) subject to the limitations of
Section 7.06(f), any other Person (other than the Borrower), so long as a
Subsidiary is the survivor thereof, and (c) any Subsidiary may merge into or
transfer all or substantially all of its assets to the Borrower, so long as the
Borrower is the survivor thereof, if prior to and after giving effect thereto,
in the case of clauses (a), (b) and (c) no Default or Event of Default has
occurred or would exist (expressly including, without limitation, under Section
7.06(f)).
SECTION VII.6. Investments, Loans, and Advances. Without the consent of the
-----------------------------------
Banks, the Borrower will not, and will not permit any Subsidiary to, make or
permit to remain outstanding any Investment, endorse, or otherwise be or become
contingently liable, directly or indirectly, in connection with the stock or
other securities of, or purchase, or acquire any stock or securities of, or any
other interest in, any Person, except that:
(a) the Borrower or any Subsidiary may permit to remain outstanding
Investments existing on the date hereof;
(b) the Borrower or any Subsidiary may acquire and own capital stock,
obligations, or securities received in settlement of debts (created in the
ordinary course of business) owing to the Borrower or any Subsidiary;
(c) the Borrower or any Subsidiary may own, purchase, or acquire Cash
Equivalents;
(d) the Borrower and any Subsidiary may make intercompany loans and advances
which are permitted under Section 7.08 hereof, and (subject to Section 6.06) may
form Subsidiaries, the capital stock of which is 100% owned by the Borrower or a
Guarantor;
(e) the transactions permitted under Subsection (a), (b) and (c) of Section
7.05 are permissible;
(f) the Borrower or any Subsidiary may (i) acquire the capital stock of
a Person without the consent of the Banks, so long as (A) the aggregate purchase
price, or cost, of such stock received in exchange for Capital Shares or any
asset of the Borrower or a Subsidiary (measured by the value of such Capital
Shares or asset of the Borrower or such Subsidiary given in exchange therefor)
does not exceed in the aggregate for any successive twelve (12) month period for
all such transactions (or series of related transactions) an amount equal to
one-third (33 1/3%) of Total Assets, determined as of the last day of the
preceding calendar quarter, or (B) if all or a part of such purchase price is
paid in cash, the cash portion of the purchase price does not exceed, in the
aggregate for any successive twelve (12) month period for all such transactions
(or series of related tramctions) an amount equal to ten percent (10%) of the
Total Assets, determined as of the last day of the preceding calendar quarter,
and (ii) acquire other Investments, (in addition to Investments permitted under
subsections (a) through (e), or (f)(i), or (g), of this Section 7.06) so long as
the aggregate purchase price, or cost, of such acquisition (measured by the
value of such Capital Shares or any assets or promissory note of the Borrower or
such Subsidiary, if any, given in exchange therefor, plus the cash portion
thereof) does not exceed in the aggregate for any successive twelve (12) month
period for all such transactions (or series of related transactions) an amount
equal to ten percent (10%) of Total Assets, determined as of the last day of the
preceding calendar quarter, and in the case of each of clause (i) or (ii), (w)
such action does not result in the income of the Borrower being primarily
attributable to loans secured by mortgages on Real Property, (x) if the
acquisition results in ownership by the Borrower or any Subsidiary (whether
beneficial or of record) of a majority of the voting stock of such Person or
results in a merger or consolidation with the Borrower or such Subsidiary, then
the board of directors of such Person shall have approved such transaction and
such transaction shall not constitute a Ahostile" acquisition with respect to
such Person, (y) (except for Investments described under clause (ii) hereof) the
business of such Person is substantially similar to the business conducted by
the Borrower or such Subsidiary, or is primarily to hold Real Property, and such
purchase or acquisition is made in the ordinary course of business, and (z) in
any event, prior to and after giving effect to such purchase or dequisition, no
Default or Event of Default has occurred or would exist; and
(g) the Borrower and any Subsidiary may purchase or acquire directly or
indirectly, through partnerships, joint ventures or otherwise, title to Real
Property (expressly including, for purposes of this Section 7.06, without
limitation, Adirect financing leases," reflected as such on the Financial
Statements).
SECTION VII.7. Coverage Ratios. (a) The Borrower will not permit the
---------------
ratio of (i) Funds From Operations, to (ii) the Annual Service Charge,
determined as of the last day of each fiscal quarter for the four (4) successive
quarterly accounting periods ending on such date (the "nnual Service Charge
Coverage Ratio") to be less than 2.5 to 1.0.
(b) The Borrower will not permit the ratio of (i) Funds From Operations, to
(ii) the Fixed Charge, determined as of the last day of each fiscal quarter for
the four (4) successive quarterly accounting periods ending on such date (the
"Fixed Charge Coverage Ratio") to be less than 2.0 to 1.0.
SECTION VII.8. Transactions with Affiliates. The Borrower will not, and
------------------------------
will not permit any Subsidiary to, directly or indirectly, enter into any
transaction, or modify any existing transaction, with any Affiliate (including,
without limitation, any transaction involving the payment of management fees or
directors' fees to any Affiliate), except for transactions (including any loans
or advances by or to any Affiliate otherwise in compliance under this Agreement)
in good faith, the terms of which are fair and reasonable to the Borrower or
such Subsidiary, and are at least as favorable as the terms which could be
obtained by the Borrower or such Subsidiary in a comparable transaction made on
an arm's-length basis between unaffiliated parties.
SECTION VII.9. Change of Business. The Borrower will not, and will not permit
-------------------
any Subsidiary to, make any material change in the nature of the business
conducted by the Borrower and its Subsidiaries taken as a whole and will at all
times qualify for taxation as a Real Estate Investment Trust under the Code.
SECTION VII.10. Minimum Adjusted Tangible Net Worth. The Borrower shall not
--------------------------------------
permit the Minimum Adjusted Tangible Net Worth to be less than $850,000,000.
SECTION VII.11. Amendment of Organizational Documents. The Borrower will not,
--------------------------------------
and will not permit any of its Subsidiaries to, without the prior written
consent of the Banks, amend, alter or modify its Organizational Documents or
articles of incorporation or other charter'or bylaws, as the case may be, in
such a manner as to (a) change its purpose or (b) restrict its powers in any
manner.
SECTION VII.12. Guarantees. "Guaranty" shall mean all obligations not otherwise
----------
reflected on the balance sheet of the Borrower or any Subsidiary whereby the
Borrower or such Subsidiary guarantees the performance of any joint venture or
partnership or the payment or performance of any indebtedness, dividend or other
obligation of any other Person (for purposes of this Section 7.12, the "Primary
Obligor") in any manner, whether directly or indirectly, including obligations
incurred through an agreement or covenant, contingent or otherwise:
(i) to purchase such indebtedness or obligation or any Property or
assets constituting security therefor,
(ii) to advance or supply funds
(A) for the purchase or payment of such indebtedness or obligation, or
(B) to maintain working capital or other balance sheet condition or
otherwise to advance or make available funds for the purchase or payment of such
indebtedness or obligation;
(iii) to lease Property or to purchase securities or other Property or
services primarily for the purpose of assuring the owner of such indebtedness or
obligation of the ability of the Primary Obligor to make payment of the
indebtedness or obligation;
(iv) to assure the owner of the indebtedness or obligation of the
Primary Obligor against loss in respect thereof; or
(v) in connection with the creation of a trust or other existing fund
for the purpose of securitizing assets of the Borrower or any Subsidiary.
Notwithstanding the above, and in any event, except for (i) Guaranties by the
Borrower of indebtedness or obligations of any Subsidiary, or (ii) Guaranties of
any Subsidiary of indebtedness or obligations of the Borrower, or (iii) the
Guaranty by the Borrower of the obligations of the Xxxxx Partnership in
Commendam in respect of the Series 1995 Lafayette Bonds and the special letter
of credit issued in connection therewith, neither the Borrower nor any
Subsidiary shall enter into any Guaranty (other than checks deposited and/or
endorsed in the ordinary course of business of the Borrower or any Subsidiary)
unless (A) liability incurred by the Borrower or such Subsidiary under such
Guaranty is secured and is for a Primary Obligor's indebtedness or other
obligation, and (B) upon payment by the Borrower or such Subsidiary on account
of (or in connection with) its obligations under the Guaranty or, after
compliance with applicable foreclosure proceedings specified by law or otherwise
agreed upon, the Borrower or such Subsidiary will become subrogated to the
right, title and interests of the beneficiary of the Guaranty or of the Primary
Obligor, to all Property securing such liability. By way of illustration, but
not limitation: (x) in the case of a Guaranty of the obligations of a venturer
or partner, the Guaranty shall be deemed secured if the Borrower or such
Subsidiary is entitled (after compliance with applicable foreclosure proceedings
specified by law or otherwise agreed upon) to such defaulting party's venture or
partnership interest in case of a default of such venturer or partner; (y) in
the case of the Guaranty of a lease, the Guaranty shall be deemed secured if the
Borrower or such Subsidiary is entitled (after compliance with applicable
foreclosure proceedings specified by law or otherwise agreed upon) to the
leasehold estate in case of default by the tenant under such lease; and (z) in
the case of the Guaranty of a secured promissory note, a Guaranty shall be
deemed secured if the Borrower or such Subsidiary is entitled to purchase the
note and the lien securing same, and to become subrogated to the rights of the
previous payee on the Note in the case of default of the maker on such default.
SECTION VII.13. Assets Retained. The Borrower will not permit the portion
---------------
of Undepreciated Real Estate Assets which is subject to no Lien (other than a
Permitted Lien) to be less than 150% of the aggregate principal amount
outstanding at any time of Debt which is not secured by a Lien on Property of
the Borrower or any Subsidiary.
SECTION VII.14. Transfer of Assets to Central Plaza. Notwithstanding anything
-----------------------------------
herein to the contrary, the Borrower shall not transfer or convey any of its
assets or make any capital contributions, loans or other distributions to
Central Plaza, except (i) the capital contribution in the approximate amount of
$4,500,000 made by the Borrower to Central Plaza in connection with the
acquisition of the Central Plaza Shopping Center and (ii) loans or advances to
Central Plaza not to exceed $500,000 at any one time outstanding.
SECTION VII.15. Limitations on Central Plaza's Incurrence of Debt.
-------------------------------------------------------
Notwithstanding anything herein to the contrary, the Borrower shall not permit
Central Plaza to incur any Debt (secured or unsecured) other than (i) the Xxxxxx
Loan (Series 1995); (ii) trade and operational Debt incurred in the ordinary
course of business with trade creditors, in amounts as are normal and customary
and (iii) loans from the Borrower; provided that the Debt permitted under
clauses (ii) and (iii) shall not exceed an aggregate amount of $500,000.
SECTION VII.16. Transfer of Assets to Xxxx Plaza. Notwithstanding anything
--------------------------------
herein to the contrary, the Borrower shall not transfer or convey any of its
assets or make any capital contributions, loans or other distributions to Xxxx
Plaza, except (i) the capital contribution in the approximate amount of
$3,350,000 made by the Borrower to Xxxx Plaza in connection with the acquisition
of the Xxxx Plaza Shopping Center and (ii) loans or advances to Xxxx Plaza not
to exceed $1,200,000 at any one time outstanding.
SECTION VII.17. Limitations on Xxxx Plaza's Incurrence of Debt. Notwithstanding
----------------------------------------------
anything herein to the contrary, the Borrower shall not permit Xxxx Plaza to
incur any Debt (secured or unsecured) other than (i) the Xxxxxx Loan (Series
1996), (ii) trade and operational Debt incurred in the ordinary course of
business with trade creditors, in amounts as are normal and customary and (iii)
loans from the Borrower; provided that the Debt permitted under clauses (ii) and
(iii) shall not exceed an aggregate amount of $1,200,000.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION VIII.1. Events of Default. If any of the following events ("Events
----------------- ------
of Default") shall occur:
-----------
(a The Borrower shall fail to pay principal of or interest on any Note
or fees or other amounts due under any Note or this Agreement when the same
becomes due and payable; or
(b Any representation or warranty made by the Borrower (or any of its
Responsible Officers) under or in connection with any Loan Document shall prove
to have been incorrect in any material respect when made or deemed made; or
(c The Borrower shall fail to perform or observe any term, covenant or
agreement contained in Sections 6.01 (d), 6.06 or in Article VII; or
(d The Borrower shall fail to perform or observe any term, covenant or
agreement contained in any Loan Document (other than those set forth in (a), (b)
and (c) above) on its part to be performed or observed if such failure shall
remain unremedied for thirty (30) days after the occurrence of such event; or
(e The Borrower shall fail to pay any principal of or premium or interest on
any Debt (other than Non-Recourse Debt) which is outstanding in a principal
amount greater thari $10,000,000 in the aggregate when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise); or any other event constituting a default (however
defined) shall occur or condition shall exist under any agreement or instrument
relating to any such Debt outstanding in a principal amount greater than
$10,000,000 (other than Non-Recourse Debt) and shall continue after the
applicable grace period, if any, specified in such agreement or instrument; or
(f The Borrower or any of its Subsidiaries shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Borrower or
any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any Debtor Laws, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part
of its Property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 30 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its Property) shall occur; or
the Borrower or any of its Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (f); or
(g Any final judgment or order for the payment of money which, individually
or the aggregate, shall be in excess of $1,000,000 at any time, shall be
rendered against the Borrower or any of its Subsidiaries and remains unpaid for
a period of 15 days, and a stay of execution thereof (whether by supersedeas
bond or otherwise) shall not be in effect after entry thereof; or
(h With respect to any Plan, Multiemployer Plan or any other employee
benefit plan within the meaning of Section 3(3) of ERISA, the Borrower or any
ERISA Affiliate has incurred and fails to pay (or fund, as applicable) within
the maximum time period permitted by law, a liability in excess of $10,000,000;
or
(i An Event of Default (however defined) in any interest rate swap
agreement, or any other interest rate protection agreement to which the Borrower
or any Subsidiary is a party (the "Interest Rate Agreements"), shall have
occurred at any time during which the Agent or any Bank is a counterparty
thereunder; or
(j The Borrower shall be or become, in the reasonable judgment of the Agent
or any Bank, a liquidating trust under the Internal Revenue Code of 1986, as
amended;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Majority Banks, by notice to the Borrower, declare the
Commitment of each Bank to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Majority Banks by notice to the Borrower, declare the Notes, all interest
thereon and all other amounts payable under this Agreement to be forthwith due
and payable, whereupon the Notes, 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; provided however, that in the event of an entry of an order for relief
with respect to the Borrower or any of its Subsidiaries under the United States
Bankruptcy Code, (A) the obligation of each Bank to make Advances shall
automatically be terminated and (B) the Notes, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
ARTICLE IX
THE AGENT
SECTION IX.1. Authorization and Action. Each Bank hereby appoints and
--------------------------
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes), the Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Banks, and such
instructions shall be binding upon all Banks and all holders of Notes; provided
--------
however, that the Agent shall not be required to take any action which exposes
the Agent to personal liability or which is contrary to this Agreement or
applicable law. The Agent agrees to give to each Bank prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement.
SECTION IX.2. Agent's Reliance, Etc. Neither the Agent nor any of its directors,
---------------------
officers, agents or employees shall be liable for any action taken or omitted to
be taken by it or them under or in connection with this Agreement, except for
its or their own gross negligence or willful misconduct. Without limitation of
the generality of the foregoing, the Agent: (i) may, subject to the provisions
of Section 10.08 hereof, treat the payee of any Note as the holder thereof until
the Agent receives written notice of the assignment or transfer thereof signed
by such payee and including the agreement of the assignee or transferee to be
bound hereby as it would have been if it had been an original Bank party hereto,
in form satisfactory to the Agent; (ii) may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Bank
and shall not be responsible to any Bank for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of the Borrower or to inspect the property (including the
books and records) of the Borrower; (v) shall not be responsible to any Bank for
the due execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any other instrument or document ftirnished
pursuant hereto; and (vi) shall incur no liability under or in respect of this
Agreement by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telecopier, telegram, cable or telex) believed by it to
be genuine and signed or sent by the proper party or parties.
SECTION IX.3. BOA and Affiliates. With respect to its Commitment, the
--------------------
Advances made by it and the Note issued to it, BOA shall have the same rights
and powers under this Agreement as any other Bank and may exercise the same as
though it were not the Agent; and the term "Bank" or "Banks" shall, unless
otherwise expressly indicated, include BOA in its individual capacity. BOA and
its Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, the Borrower,
any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if BOA were not the
Agent and without any duty to account therefor to the Banks.
SECTION IX.4. Bank Credit Decision. Each Bank acknowledges that it has,
----------------------
independently and without reliance upon the Agent or any other Bank and based on
the financial statements referred to in Sections 5.02 and 6.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank also acknowledges
that it will, independently and without reliance upon the Agent or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under each Loan Document. The Agent shall not be required to keep itself
informed as to the performance or observance by the Borrower of any Loan
Document or to inspect the Properties or books of the Borrower or any
Subsidiary. Except for notices, reports, and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Bank with any
credit or other information concerning the affairs, financial condition, or
business of the Borrower or any Subsidiary (or any of their Affiliates) which
may come into the possession of the Agent or any of its Affiliates.
SECTION IX.5. Indemnification. Notwithstanding anything to the contrary
---------------
herein contained, the Agent shall be fully justified in failing or refusing to
take any action hereunder unless it shall first be indemnified to its
satisfaction by the Banks against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, and
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Agent in any way relating to or arising out of its
taking or continuing to take any action. EACH BANK AGREES TO INDEMNUY THE AGENT
(TO THE EXTENT NOT REIMBURSED BY THE BORROWER), ACCORDING TO SUCH BANK'S PRO
RATA PERCENTAGE, FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES,
DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS
OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY, OR
ASSERTED AGAINST THE AGENT IN ANY WAY RELATING TO OR ARISING OUT OF ANY LOAN
DOCUMENT OR ANY ACTION TAKEN OR OMITTED BY THE AGENT UNDER ANY LOAN DOCUMENT IN
ITS CAPACITY AS AGENT, PROVIDED THAT NO BANK SHALL BE LIABLE 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 PERSON BEING INDEMNIFIED; AND PROVIDED FURTHER, THAT
IT IS THE INTENTION OF EACH BANK TO INDEMNIFY THE AGENT AGAINST THE CONSEQUENCES
OF THE AGENT'S OWN NEGLIGENCE WHEN ACTING IN ITS CAPACITY AS AGENT, WHETHER SUCH
NEGLIGENCE BE SOLE, JOINT, OR CONCURRENT, ACTIVE OR PASSIVE. WITHOUT LIMITATION
OF THE FOREGOING, EACH BANK AGREES TO REIMBURSE THE AGENT, PROMPTLY UPON DEMAND
FOR ITS PRO RATA PERCENTAGE OF ANY OUT-OF-POCKET EXPENSES (INCLUDING REASONABLE
ATTORNEYS'FEES) INCURRED BY THE AGENT IN ITS CAPACITY AS AGENT IN CONNECTION
WITH THE PREPARATION, ADMINISTRATION, OR ENFORCEMENT OF, OR LEGAL ADVICE IN
RESPECT OF RIGHTS OR RESPONSIBILITIES UNDER, ANY LOAN DOCUMENT, TO THE EXTENT
THAT THE AGENT IS NOT REIMBURSED FOR SUCH EXPENSES BY THE BORROWER.
SECTION IX.6. Successor Agent. The Agent may resign at any time by giving
----------------
written notice thereof to the Banks and the Borrower and may be removed at any
time with cause by the Majority Banks. Upon any such resignation or removal, the
Majority Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Majority Banks, and shall
have accepted such appointment, within thirty (30) days after the retiring
Agent's giving of notice of resignation or the Majority Banks' removal of the
retiring Agent, then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States of America or of any State thereof and having capital of at
least $100,000,000. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
SECTION IX.7. Agent's Reliance. The Borrower shall notify the Agent in writing
----------------
of the names of its officers and employees authorized to request an Advance on
behalf of the Borrower and shall provide the Agent with a specimen signature of
each such officer or employee. The Agent shall be entitled to rely conclusively
on such officer's or employee's authority to request an Advance on behalf of the
Borrower until the Agent receives written notice from the Borrower to the
contrary. The Agent shall have no duty to verify the authenticity of the
signature appearing on any Notice of Borrowing, and, with respect to any oral
request for an Advance, the Agent shall have no duty to verify the identity of
any Person representing himself as one of the officers or employees authorized
to make such request on behalf of the Borrower. Neither the Agent nor any Bank
shall incur any liability to the Borrower in acting upon any telephonic notice
referred to above which the Agent or such Bank believes in good faith to have
been given by a duly authorized officer or other Person authorized to borrow on
behalf of the Borrower or for otherwise acting in good faith.
SECTION IX.8. Defaults. The Agent shall not be deemed to have knowledge of
--------
the occurrence of a Default (other than the nonpayment of principal of or
interest hereunder or of any fees payable hereunder) unless the Agent has
received notice from a Bank or the Borrower specifying such Default. In the
event that the Agent receives such a notice of the occurrence of a Default, the
Agent shall give prompt notice thereof to the Banks and to the Borrower (and
shall give each Bank prompt notice of each such nonpayment); provided that,
failure of the Agent to give notice to the Borrower hereunder shall in no event
diminish the obligations of the Borrower hereunder. The Agent shall (subject to
Section 8.01 and 9.01) take such action as may be expressly required hereunder
with respect to such Default; provided that, unless and until the Agent shall
have received the directions referred to in Section 8.01, the Agent may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default as it shall deem advisable and in the best interest
of the Banks.
ARTICLE X
MISCELLANEOUS
SECTION X.1. Amendments, Etc. No amendment or waiver of any provision of
----------------
this Agreement or the Notes, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Borrower and the Majority Banks, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided however, that no amendment, waiver or consent
--------
shall, unless in writing and signed by all the Banks, do any of the following:
(a) waive any of the conditions specified in Section 4.02, (b) increase the
Commitments of the Banks or subject the Banks to any additional obligations, (c)
reduce the principal of, or interest on, the Notes, (d) postpone any date fixed
for any payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, (e) change the definition of "Pro Rata Percentage,"
the percentage of the Commitments or the aggregate unpaid principal amount of
the Notes, or the number or percentage of Banks, which shall be required for the
Banks or any of them to take any action hereunder, (f) amend this Section 10.01,
(g) alter any Guaranty Agreement or Section 6.06 hereof, or (h) amend Article
VII hereof, and provided, further, that no amendment, waiver or consent shall,
--------
unless in writing and signed by the Agent in addition to the Banks required
above to take such action, affect the rights or duties of the Agent under this
Agreement or any Note.
SECTION X.2. Notices, Etc. All notices and other communications provided
-------------
for hereunder shall be in writing (including by telex or telefacsimile
transmission) and shall be effective when actually delivered, or in the case of
telex notice, when sent, and answerback is received, or in the case of
telefacsimile transmission, when received and telephonically confirmed,
addressed as follows: if to the Borrower, at its address at 0000 Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx, Xxxxx 00000, Attention: Chief Executive Officer, with a copy to
Dow, Cogbum & Xxxxxxxx, P.C., 0 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000, Attention: Xx. Xxxxxx Xxx; if to any Bank, at its address specified
opposite its name on the signature page hereof; and if to the Agent, at its
address at 000 Xxxxxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention: Xxxxxxx X.
Xxxxxxx; with a copy to 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000,
Attention: Xxxxx Xxxx; or as to the Borrower, any Bank or the Agent, at such
other address as shall be designated by such party in a written notice to the
other parties.
SECTION X.3. No Waiver; Remedies. No failure on the part of any Bank or the
---------------------
Agent to exercise, and no delay in exercising, any right under any Loan Document
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
SECTION X.4. Costs, Expenses and Taxes. The Borrower agrees to pay on
----------------------------
demand all costs and expenses in connection with the preparation, execution,
delivery, modification, waiver, and amendment of the Loan Documents and the
other documents to be delivered under the Loan Documents, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Agent and each Bank with respect thereto and with respect to advising the Agent
and each Bank as to its rights and responsibilities under the Loan Documents;
provided that, fees of counsel for the Agent and the Banks for work performed in
connection with the preparation, execution and delivery of this Agreement and
the other Loan Documents on the Closing Date and all other work described in
this sentence performed on or prior to the Closing Date (together with routine
post-closing matters, such as preparation and delivery of closing packages),
shall not exceed $25,000.00, plus expenses of such counsel incurred in
connection therewith. In the event of the occurrence of a Default, the Borrower
further agrees to pay on demand all costs and expenses, if any (including,
without limitation, reasonable counsel fees and expenses), in connection with
the enforcement (whether through negotiations, legal proceedings or otherwise)
of the Loan Documents and the other documents to be delivered under the Loan
Documents, including, without limitation, reasonable counsel fees and expenses
in connection with the enforcement of rights under this Section 10.04.
SECTION X.5. Right of Set-off. Upon (i) the occurrence and during the
-------------------
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 8.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 8.01,
each Bank is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the credit or the account
of the Borrower against any and all of the obligations of the Borrower now or
hereafter existing under any Loan Document, whether or not such Bank shall have
made any demand under this Agreement or such Note and although such obligations
may be unmatured. Each Bank agrees promptly to notify the Borrower after any
such set-off and application made by such Bank, provided that the failure to
--------
give such notice shall not affect the validity of such set-off and application.
The rights of each Bank under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which such
Bank may have.
SECTION X.6. Sharing of Payments, Etc. If any Bank shall obtain any payment
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(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of any Advance made by it (other than pursuant to
Sections 2.07, 2.10, 3.04 or 3.05) in excess of its Pro Rata Percentage of
payments on account of the Advances, such Bank shall forthwith purchase from the
other Banks such participations in the Advances made by them as shall be
necessary to cause such purchasing Bank to share the excess payment ratably with
each of them, provided however, that if all or any portion of such excess
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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 together with an amount equal
to such Bank's ratable share (according to the proportion of (i) the amount of
such Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered.
SECTION X.7. Binding Effect. This Agreement shall become effective when it
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shall have been executed by the Borrower, the Agent and the Banks (and a
counterpart original has been delivered to the Agent, for itself and each Bank,
and to the Borrower) when the Agent shall have been notified by each Bank that
such Bank has executed it and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Agent and each Bank and their respective successors
and assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent of the
Banks.
SECTION X.8. Assignments and Participations. (a) Each Bank may assign all or
------------------------------
a portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments and the Note held by it to any
financial institution (the "ssignee"); provided however, (i) prior to the
-------- --------
occurrence of an Event of Default, BOA shall not assign its rights and
obligations hereunder without the consent of the Borrower, which will not be
unreasonably withheld, if, the assignment is made to an Eligible Assignee and,
after giving effect to such assignment, the Commitment of BOA would not be
reduced to less than $25,000,000, (ii) each assignment made hereunder shall
equal or exceed the lesser of (A) $10,000,000 or (B) the remaining Commitment
held by the assigning Bank, and (iii) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register (with a copy to the Borrower), an Assignment and Acceptance Agreement
in the form of Exhibit 10.08, attached hereto (the "Assignment and Acceptance"),
-------------------------
together with any Note subject to such assignment. Upon such execution,
delivery, acceptance, and recordation by the Agent of such Assignment and
Acceptance, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be the date on which such Assignment and
Acceptance is accepted by the Agent, (A) the Assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Bank under the Loan Documents, and (B) the Bank assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Loan Documents (and, in the case
of an Assignment and Acceptance covering all or the remaining portion of an
assigning Bank's rights and obligations under the Loan Documents, such Bank
shall cease to be a party thereto).
(b By executing and delivering an Assignment and Acceptance, the Bank
assignor thereunder and the Assignee confirm to and agree with each other and
the other parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties, or representations made in or in connection with any Loan Document
or the execution, legality, validity, enforceability, genuineness, sufficiency,
or value of any Loan Document or any other instrument or document furnished
pursuant thereto; (ii) such assigning Bank makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrower or any other Subsidiary or the performance or observance by the
Borrower or any other Subsidiary of any of its respective obligations under any
Loan Document or any other instrument or document furnished pursuant thereto;
(iii) such Assignee confirms that it has received a copy of the Loan Documents,
together with copies of the Financial Statements referred to in Section 5.02 and
------------
Section 6.01, and such other documents and information as it has deemed
-------------
appropriate to make its own credit analysis and decision to enter into such
--------
Assignment and Acceptance; (iv) such Assignee, independently and without
----
reliance upon the Agent such assigning Bank, or any Bank and based on such
----
documents and information as it shall deem appropriate at the time, will
----
continue to make its own credit decisions in taking or not taking action under
----
this Agreement; (v) such Assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under any Loan
Document as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; and (vi) such Assignee agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of any Loan Document are required to be performed by it as a Bank.
(c The Agent shall maintain at its address referred to in Section 10.02 a
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copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Banks and the
Commitment of, and principal amount of the Borrowings owing to, each Bank from
time to time (the "Register"). The entries in the Register shall be conclusive
--------
and binding for all purposes, absent manifest error, and the Borrower, the
Agent, and the Banks may treat each Person whose name is recorded in the
Register as a Bank hereunder for all purposes of the Loan Documents. The
Register shall be available for inspection by the Borrower or any Bank at any
reasonable time and from time to time upon reasonable prior notice.
(d Upon its receipt of an Assignment and Acceptance executed by an assigning
Bank, together with any Note subject to such assignment, the Agent, if such
Assignment and Acceptance has been completed and otherwise complies with Section
10.08(a), shall (i) accept such Assignment and Acceptance; (ii) record the
information contained therein in the Register, and (iii) give prompt notice
thereof to the Borrower. Simultaneously upon its receipt of such notice, the
Borrower at its own expense, shall execute and deliver to the Agent in exchange
for each surrendered Note a new Note to the order of such Assignee in an amount
equal to the Conumitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Bank has retained Commitments hereunder, new
Notes to the order of the assigning Bank in an amount equal to the Commitments
retained by it hereunder. The new Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of the surrendered Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit 2.02(c). Upon receipt by the
---------------
Agent of each such new Note conforming to the requirements set forth in the
preceding sentences, the Agent shall return to the Borrower each such
surrendered Note marked to show that each such surrendered Note has been
replaced, renewed, and extended by such new Note.
(e Each Bank may sell participations to one or more financial institutions
in or to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitments and the
Notes held by it), and no such sale of a participation shall reduce such Bank's
obligations to the Borrower hereunder.
SECTION X.9. Limitation on Agreements. (a) All agreements between the
------------------------
Borrower, the Agent, or any Bank, whether now existing or hereafter arising and
whether written or oral, are hereby expressly limited so that in no contingency
or event whatsoever, whether by reason of demand being made in respect of an
amount due under any Loan Document or otherwise, shall the amount paid, or
agreed to be paid, to the Agent or any Bank for the use, forbearance, or
detention of the money to be loaned under this Agreement, the Notes or any other
Loan Document or otherwise or for the payment or performance of any covenant or
obligation contained herein or in any other Loan Document exceed the Highest
Lawful Rate. If, as a result of any circumstance whatsoever, fulfillment of or
compliance with any provision hereof or of any of such documents at the time
performance of such provision shall be due or at, any other time shall involve
exceeding the amount permitted to be contracted for, taken, reserved, charged or
received by the Agent or any Bank under applicable usury law, then, ipso facto,
---- -----
the obligation to be fulfilled or complied with shall be reduced to the limit
prescribed by such applicable usury law, and if, from any such circumstance, the
Agent or any Bank shall ever receive interest or anything which might be deemed
interest under applicable law which would exceed the Highest Lawful Rate, such
amount which would be excessive interest shall be applied to the reduction of
the principal amount owing on account of such Bank's Note or the amounts owing
on other obligations of the Borrower to the Agent or any Bank under any Loan
Document and not to the payment of interest, or if such excessive, interest
exceeds the unpaid principal balance of any Note and the amounts owing on other
obligations of the Borrower to the Agent or any Bank under any Loan Document, as
the case may be, such excess shall be refunded to the Borrower. All sums paid or
agreed to be paid to the Agent or any Bank for the use, forbearance, or
detention of the indebtedness of the Borrower to the Agent or any Bank shall, to
the extent permitted by applicable law, be amortized, prorated, allocated, and
spread throughout the full term of such indebtedness until payment in full of
the principal (including the period of any renewal or extension thereof) so that
the interest on account of such indebtedness shall not exceed the Highest Lawful
Rate. Notwithstanding anything to the contrary contained in any Loan Document,
it is understood and agreed that if at any time the rate of interest which
accrues on the outstanding principal balance of any Note shall exceed the
Highest Lawful Rate, the rate of interest which accrues on the outstanding
principal balance of any Note shall be limited to the Highest Lawful Rate, but
any subsequent reductions in the rate of interest which accrues on the
outstanding principal balance of any Note shall not reduce the rate of interest
which accrues on the outstanding principal balance of any Note below the Highest
Lawful Rate until the total amount of interest accrued on the outstanding
principal balance of any Note equals the amount of interest which would have
accrued if such interest rate had at all times been in effect. The terms and
provisions of this Section 10.09 shall control and supersede every other
--------------
provision of all Loan Documents.
(b The Banks and the Borrower agree that (i) if Chapter 303 of the Texas
Finance Code, as amended, is applicable to the determination of the Highest
Lawful Rate, the weekly ceiling computed from time to time pursuant to Section
(a) of such Article shall apply, provided that, to the extent permitted by such
--------
Article, the Agent may from time to time by notice to the Borrower revise the
election of such interest rate ceiling as such ceiling affects the then current
or future balances of the Advances; and (ii) the provisions of Chapter 346 of
the Texas Finance Code, as amended, shall not apply to this Agreement or any
Note.
SECTION X.10. Severability. In case any one or more of the provisions contained
------------
in any Loan Document to which the Borrower is a party or in any instrument
contemplated thereby, or any application thereof, shall be invalid, illegal, or
unenforceable in any respect, the validity, legality, and enforceability of the
remaining provisions contained therein, and any other application thereof, shall
not in any way be affected or impaired thereby. Each covenant contained in any
Loan Document to which the Borrower is a party shall be construed (absent an
express contrary provision herein) as being independent of each other covenant
contained therein, and compliance with any one covenant shall not (absent such
an express contrary provision) be deemed to excuse compliance with one or more
other covenants.
SECTION X.11. Governing Law. This Agreement and the Notes shall be governed
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by, and construed in accordance with, the laws of the State of Texas.
SECTION X.12. SUBMISSION TO JURISDICTION; WAIVERS. THE BORROWER IRREVOCABLY AND
-----------------------------------
UNCONDITIONALLY:
(a SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF TEXAS, THE COURTS OF THE UNITED
STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF TEXAS, AND APPELLATE COURTS FROM
ANY THEREOF;
(b WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT IN XXXXXX COUNTY, TEXAS, OR THAT
SUCH PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR
CLAIM THE SAME;
(c AGREES THAT SERVICE OF PROCESS IN ANY SUCH LEGAL ACTION OR PROCEEDING MAY
BE EFFECTED BY MAILING OF A COPY THEREOF (BY REGISTERED OR CERTIFIED MAIL OR ANY
SUBSTANTIALLY SIMILAR FORM OF MAIL, POSTAGE PREPAID) TO ITS ADDRESS SET FORTH IN
SECTION 10.02 HEREOF OR TO SUCH OTHER ADDRESS OF WHICH THE OTHER PARTIES HERETO
SHALL HAVE BEEN NOTIFIED IN WRITING BY THE BORROWER PURSUANT TO SECTION 10.02.
SECTION X.13. Execution in Counterparts. This Agreement may be executed in any
-------------------------
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
SECTION X.14. Liability of Borrower. With respect to the incurrence of certain
---------------------
liabilities hereunder and the making of certain agreements by the Borrower as
herein stated, such incurrence of liabilities and such agreements shall be
binding upon the Borrower only as a trust formed under the Texas Real Estate
Investment Trust Act pursuant to that certain Restated Declaration of Trust
dated March 23, 1988 (as it is amended from time to time), and only upon the
assets of such Borrower. No Trust Manager or officer or holder of any beneficial
interest in the Borrower shall have any personal liability for the payment of
any indebtedness or other liabilities incurred by the Borrower hereunder or for
the performance of any agreements made by the Borrower hereunder, nor for any
other act, omission or obligation incurred by the Borrower or the Trust Managers
except, in the case of a Trust Manager, any liability arising from his own
willful misfeasance or malfeasance or gross negligence.
SECTION X.15. FINAL AGREEMENT. THIS WRITTEN AGREEMENT, THE GUARANTY, AND
----------------
THE NOTES REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
[REMAINDER OF PAGE INTENTIONALLY BLANK -
SEE SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
Executed by their respective officers thereunto duly authorized, as of the date
first above written.
XXXXXXXXXX REALTY INVESTORS,
Borrower
By:_____________________________________
Name:___________________________________
Title:__________________________________
BANK OF AMERICA, N.A., in its individual
capacity and as Agent
Address:
-------
000 Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X.Xxxxxxx
By:_____________________________________
Name:___________________________________
Commitment: $100,000,000 Title:__________________________________
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